LakeHavasuCounty.com

Court requested to remove Byers and Sockwell from office.
Similar action under preparation against MCC.

By Dr. Bill Ullery, www.lakehavasucounty.com

Following is a complaint filed with the Superior Court October 29 on violations of open meeting laws by the Mohave County board of supervisors. If successful, supervisors Pete Byers and Tom Sockwell would be removed from office (see 17 B).

If we prevail with this case, SEC violations will surely be documented on the method by which bonds were sold for the new administrative building. Such violations would be felonies. County manager Walker, finance director Timko, and county attorney Smith along with Byers and Sockwell and possibly other county employees may have been involved in those SEC violations. 

It is our intent to litigate the issues and bring any and all violators to justice.

Within the next few months, we intend to file a similar action against the Mohave Community College board of governors and key administrators, past and present. Included will be past board chairman Stuart Anderson and current president Tom Henry. 

The building on the Kingman campus named after Anderson will be addressed as a part of the declaratory relief. It is our contention that public buildings should not be named after elected officials who have violated their oath of office and violated the open meeting laws during their term of office. All legal actions taken by the board following each of the illegal pre-board dinner meetings of past 17 to 20 years will be challenged.

Concurrently, we will present a bill to the state legislature to address such problems with the entire community college system. Included will be a mechanism for governance of the community colleges, policing of open meeting violations, policing of violations of the truth in taxation laws, etc.

Text of complaint filed last Friday follows:

Paul Lenkowsky, State Bar No. 005529, LAW OFFICES OF PAUL LENKOWSKY
1181 Hancock Road, Bullhead City, Arizona 86442, Telephone: (928) 758-4815
Attorney for: Plaintiff
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MOHAVE

Plaintiff, William Ullery, for his complaint against the Defendants and each of them, complains and alleges as follows: 1. Plaintiff William Ullery is a resident and taxpayer of Lake Havasu City, Mohave County, Arizona. 2. Defendant Mohave County is a political subdivision of the State of Arizona existing under A.R.S. § 11.110. 3. Defendant Mohave County Board of Supervisors, who are being sued in their official capacity, are public officers under A.R.S. § 38-101. 4. The Defendants who are named herein as John Does 1-5, Jane Does 1-5 and Black Corporations 1-5 are presently unknown to Plaintiff and are sued herein by fictitious names. At such time as the true names of said Defendants become known to Plaintiff, Plaintiff requests that the Court allow Plaintiff to substitute the same as though originally set forth herein. 5. This court has jurisdiction pursuant to the following: A.R.S. § 38-431.07; A.R.S. § 12-1801; and A.R.S. § 12-1831.

COUNT I--VIOLATION OF OPEN MEETING LAWS, A.R.S. § 38-431 ET. SEQ.

6. On or about March 1, 2004, the Mohave County Board of Supervisors (hereinafter referred to as “Board”) held a meeting to approve the construction of the Mohave County Administrative Building. Defendants noticed said proposal on the agenda as follows: 
“No. 54. Discussion and possible action re adoption of the recommendation of the evaluation committee for the construction of the County Administration Building at a cost not to exceed $20,000,000 at a financing rate not to exceed 4.5% and authorized the Board Chairman to execute all necessary documents to complete this transaction including a land lease and a lease-to-own agreement.” (Exhibit A, Board Meeting Agenda for March 1, 2004). 

7. The County took legal action under A.R.S. § 38-431 to approve the County 
Administration Building as follows: 
“Item No. 54, motion was made by Chairman Byers and seconded by Supervisor Sockwell to adopt the recommendation of the evaluation committee for the construction of the County Administrative Building at a cost no to exceed $20,000,000 at a financing rate not to exceed 4.5%, and authorized the Board Chairman to execute all necessary documents to complete this transaction including a land lease and lease-to-own agreement.” (Exhibit B, Board Meeting Minutes for March 1, 2004).

8. On or about May 10, 2004, outside of the public meeting and without any notice on the agenda, Defendant took action to form the Mohave Administrative Building Finance Corporation (herein referred to as the “Corporation”), a non-profit corporation organized and existing under A.R.S. § 10-2301 et. seq. for the purpose of assisting the County in financing the construction of the new County Administration Building. (Exhibit C, Articles of Incorporation of Mohave Administration Building Finance Corporation). 

9. On May 17, 2004, the Board took legal action under A.R.S. § 11-256 to approve a “Ground Lease, Lease-To-Own Agreement” (herein referred to as “Lease Agreement”) authorizing the County to issue bonds for the construction of the Mohave Administration Building. (Exhibit D, “Ground Lease, Lease-To-Own Agreement”). However, the County again failed to legally notice and approve its formation of the Corporation given its purpose of issuing bonds to finance the construction of the Administration Building. In addition, Plaintiff is informed and believes and therefore alleges the Board approved the “Agreement” without a unanimous vote and outside a public auction in violation of A.R.S. § 11-256. (Exhibit E, Board Minutes for May 17, 2004).

10. As the Board of Supervisors deliberated, discussed, and took action to form the Corporation in violation of Open Meeting Laws, the County acknowledged the Corporation was formed “at the direction of the County.” (Exhibit F, Resolution approving “Ground Lease, Lease-To-Own Agreement”). 

11. When Plaintiff discovered Defendant formed the Corporation in a manner that was contrary to law, Plaintiff filed a Notice of Claim with the County pursuant to A.R.S. § 12-821.01. (Exhibit G, Notice of Claim dated July 1, 2004). In its claim, Plaintiff alleged the County violated Open Meeting laws, A.R.S. § 38-431 et seq., by forming the Corporation outside of a public meeting and without adequate notice on its agenda. 

12. That Supervisors Keith Byers and Tom Sockwell discussed, deliberated and took legal action under A.R.S. § 38-431.01 to approve forming the Corporation outside an open meeting and without any proper notice to the residents and taxpayers of Mohave County. In forming the Corporation, John Timko and Ron Walker placed themselves on the Board of Directors as provided under the Articles of Incorporation. 

13. Responding to Dr. Ullery’s claim, the County acknowledged a “probable violation” of open meeting laws in forming the Corporation. In an attempt to ratify its previous actions taken in violation of Open Meeting Laws, the County, without any express or implied statutory authority, illegally delegated its power to form the Corporation to OPUS, a private, non-governmental corporation. 

14. Plaintiff alleges although the Mohave County Administration Building Finance Corporation is technically a nonprofit corporation, the Corporation is actually the County of Mohave acting through an agency. The Corporation’s Board of Directors is comprised of public officers of the County. The Corporation has no purpose other than to assist the County in the building of County improvements. (Exhibit H, Bylaws for Mohave Administration Building Finance Corporation). 

15. After the County’s response to violating Open Meeting Laws, on August 11, 2004, Plaintiff filed an amended Notice of Claim with the County. (Exhibit I, Amended Notice of Claim dated August 11, 2004). In that claim, Plaintiff asserted that the County illegally delegated its authority to form the Corporation to a non-governmental entity where no statutory authority gives it the power to do so. Plaintiff also contends the County approved the illegal delegation of its authority to circumvent their blatant violation of the Open Meeting Laws in forming the Corporation. As such, the County failed to ratify a prior legal action taken in violation of the open meeting law. 

16. Plaintiff was damaged and injured by the County’s failure to publicly discuss and deliberate and legally approve the formation of the Corporation by preventing him from discovering and further investigating the background and specific facts underlying the County’s decision to form the Corporation. 

17. Plaintiff maintains all actions taken by the County in forming the Corporation in violation of Open Meeting Laws are null and void under A.R.S. § 38-431.05.
WHEREFORE, Plaintiff respectfully requests that this Court:
A. Declare the County’s illegal formation of the Mohave Administration Building Finance Corporation null and void pursuant to A.R.S. § 38-431.05; 
B. Order the removal of Keith Byers and Tom Sockwell from office pursuant to § 38-431.07;
C. Award Plaintiff’s reasonable attorneys’ fees and costs incurred herein pursuant to § 38-431.07.

COUNT II–DECLARATORY RELIEF

18. Plaintiff reasserts and re-alleges each and every allegation contained in Count One of his Complaint as though fully set forth herein and incorporates the same by reference. 

19. Plaintiff alleges the County should have reasonably discovered it violated Open Meeting Laws in forming the Corporation on May 17, 2004 when the County approved the Resolution for the “Ground Lease, Lease-To-Own Agreement”. As the County recognized in this Resolution the Corporation was formed “at the direction of the County,” the County should have reasonably discovered it formed the Corporation without any notice and outside a public meeting. 

20. The County failed to take any remedial measures to timely ratify its previous action in forming the Corporation after reasonable discovery of its violation of Open Meeting Laws as provided by A.R.S. § 38-431.05(B).

21. Since the County failed to timely ratify legal action taken in violation of Open Meeting Laws, the formation of the Corporation and the corresponding Lease Agreement is null and void under A.R.S. § 38-431.05(A).

WHEREFORE, Plaintiff respectfully requests that this Court:
A. Declare the County’s illegal formation of the Mohave Administration Building Finance Corporation and the execution of “Ground Lease, Lease-To-Own Agreement” null and void pursuant to A.R.S. § 38-431.05;
B. Award Plaintiff’s reasonable attorneys’ fees and costs incurred herein pursuant to § 38-431.07.

COUNT III–INJUNCTIVE RELIEF

22. Plaintiff reasserts and re-alleges each and every allegation contained in Counts One and Two of his Complaint as though fully set forth herein and incorporates the same by reference. 

23. The County executed the Lease Agreement covering county lands and buildings under A.R.S. § 11-256.01 This statute requires the County to appraise the subject property to determine the rental value, execute the lease at a public auction to the highest bidder, and provide notice of the proposed lease by publication.

24. Plaintiff alleges the County illegally leased county lands and buildings in violation of A.R.S. § 11-256.01. The County failed to appraise said property and subsequently failed to accept bids to execute the Lease Agreement at a public action. In addition, the County did not provide any notice of proposing said lease. 

25. Since the Lease Agreement was not approved by unanimous consent of the Board as provided by A.R.S. § 11-251, Plaintiff alleges the County had no authority to execute the lease with the Corporation outside a public auction.

26. As the County exceeded its authority expressly conferred on them by A.R.S. § 11-251 et. seq., the Lease Agreement between the Corporation and the County is invalid.
WHEREFORE, Plaintiff respectfully requests that this Court:
A. Invalidate the “Ground Lease, Lease-To-Own Agreement” executed by the County in violation of A.R.S. § 11-251 et. seq.;
B. Enjoin further construction of the Mohave County Administration Building on the grounds the Lease Agreement is invalid;
C. Award Plaintiff’s reasonable attorneys’ fees and costs incurred herein pursuant to § 38-431.07.

RESPECTFULLY SUBMITTED this 29th day of October, 2004. 
LAW OFFICES OF PAUL LENKOWSKY
Attorney for Plaintiff William Ullery