Legal Ethics

Maricopa Board to Hire Uber-Arbitrator for Claims Against Sheriff, Ex-County Attorney

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The Maricopa County, Ariz., Board of Supervisors is expected Wednesday to approve the hiring of uber-arbitrator Kenneth Feinberg to handle claims brought against the local government by high-level county managers, elected officials, judges and other employees who say they suffered harassment and abuse of power by the sheriff and former county prosecutor.

The choice of Feinberg to sort out the county’s perplexing internecine legal battles concerning Sheriff Joe Arpaio and former County Attorney Andrew Thomas comes on the heels of announcements last week that the Obama administration tapped Feinberg to administer BP’s $20 billion oil-spill compensation fund.

The problem in Maricopa County is perhaps unprecedented in the nation’s history: So many leaders and workers in all three branches of county government say they were harassed and harmed by a sheriff-prosecutor team investigating, suing and criminally charging them in alleged political vendettas that no one is left who would be qualified to handle the claims against their own government. Anyone who ordinarily would decide the claims—judicially, administratively or by legislative action—might have one himself.

Today the board’s agenda was posted for its scheduled Wednesday meeting and included a county staff report recommending arbitration by Feinberg. The arbitration plan would be opt-in, and claimants who prefer to sue in court could do so.

Two of the five members of the board already have sued Thomas and Arpaio and thus county government. Another is undecided. County number-crunchers believe that if the claims played out in the courts rather than in arbitration, it could cost $15 million to $20 million just to defend the suits, in addition to any awards that might result, and run on for five to 10 years.

Feinberg is seen by many in Maricopa as a credible, heavyweight match for the outsize personality of Arpaio as well as Thomas, Arpaio’s close colleague in controversial, populist battles against illegal immigration. Those initiatives are the subject of lawsuits and a U.S. Justice Department investigation.

Thomas recently resigned to run for state attorney general.

Feinberg probably is best known for his effort of nearly three years dividing $7 billion among families of 9/11 victims. More recently the White House tapped him as the pay czar to oversee (read: limit) compensation for high-level executives and employees at seven large companies receiving federal bailouts, such as Bank of America, American International Group, Citigroup and General Motors.

Maricopa County is the nation’s fifth-largest metropolitan area; its population of 4 million is greater than those of 24 states.

County officials believe it would be difficult to find anyone in the state to handle the claims who is both qualified without potential conflicts of interest and willing to take on the job.

“We wanted someone like Feinberg because Sheriff Arpaio counts on his reputation to scare people off,” says Tom Irvine, a Phoenix lawyer who represents the board of supervisors and negotiated the arrangement with Feinberg. “I spoke with some of the best people locally and they feared getting involved because they might be defamed and attacked.”

For years, Arpaio’s deputies have been quick to pursue investigations of officials and others who criticized the sheriff. In more recent years, Irvine says, those investigations came to include prosecution by the county attorney’s office under Thomas.

Thus far 10 suits have been brought against Arpaio and Thomas by judges, county officials and employees who say they were harassed with late-night and weekend knocks on their doors at home by sheriff’s detectives, investigated criminally, sued for alleged racketeering and even hit with criminal charges. A Racketeer Influenced and Corrupt Organizations Act suit against numerous officials and criminal charges against two supervisors and a judge were dropped after Thomas was found to have ethical conflicts, and a federal grand jury now is looking at alleged abuses of power by Arpaio and Thomas. More details are in the “The Maricopa Courthouse War” feature in April’s ABA Journal.

Another 20 expected claims would bring the number to 30 or so for Feinberg to consider, though potentially it could climb to 100, Irvine says. For example, sheriff’s detectives visited the homes of about 70 people, mostly staffers for the court and the county government, at night and on weekends last summer and in December to ask questions about their bosses. And when the staffers weren’t home, the investigators sometimes questioned neighbors about them.

And it was revealed recently the sheriff’s office went out of normal channels and away from usual contracts last December to pick a process server to personally hand the RICO complaint to Superior Court Judge Gary Donahoe. The process server had been convicted years ago for threatening physical violence against the judge when he thought, wrongly, that Donahoe had acted improperly in a probate matter.

The supervisors also agreed to hire Phoenix-based arbitrator Christopher Skelly, a retired judge, as of counsel to help Feinberg if needed in matters such as Arizona law.

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