Prior to voting to award a lucrative contract to a mapping consultant on June 29, the Independent Redistricting Commission had spent as much time in closed door executive meetings as it had before the public.
And public records held by the commission itself, as well as statements made by commissioners, indicate the IRC may have violated Arizona’s open meeting laws designed to maintain a level of transparency in government affairs – that is, if the state Constitution doesn’t grant the agency unfettered contracting authority.
The commissioners spent three hours in executive session that day. The two commission Republicans emerged with no illusions that Strategic Telemetry, a consulting firm with a long history of working for unions and Democrats, would be hired. And another — the body’s independent chairwoman, Colleen Mathis — read from a prepared printed statement that acknowledged her GOP colleagues’ dismay at the selection.
The vote stoked the ire of Republicans, who later complained bitterly to the commission, Attorney General Tom Horne and Gov. Jan Brewer, who has the constitutional authority to initiate a process to remove malfeasant redistricting commissioners.
An Arizona Capitol Times investigation reveals that, through the June 29 meeting, the commission had spent 37 of its 74 hours of commission meetings locked in executive session. This, despite the promises of promoters of independent redistricting, who said the system would be a transparent alternative to what they claimed were secretive give-and-take deliberations among self-interested lawmakers.
The lingering questions of the IRC’s commitment to open government can also include questions of shenanigans or outright impropriety. The results of records requests filed by Arizona Capitol Times produced evidence of an incomplete procurement file that would have otherwise been expected to include commissioner evaluations used to narrow the list of seven firms that applied to be the commission’s mapping consultant to four finalists.
Also produced was proof that state procurement administrator Jean Clark terminated the State Procurement Office’s relationship with the IRC, a fact that was not made clear by the commission on June 29.
This happened, according to a June 29 letter by Clark, to “facilitate and respect the autonomy of the commission” after the commission “frequently pursued direction other than that offered by SPO.” Clark was unavailable for comment.
IRC commissioners, attorneys, staff members and procurement officials have not disclosed why the relationship was terminated. Commission officials cited state law prohibiting the disclosure of executive session discussions when declining to comment. “Since so much of that transpired in executive session, I don’t know how much of that I can talk about,” said Republican Commissioner Scott Freeman, who is an attorney.
The IRC’s attorneys offered a limited explanation: The commission has the constitutional authority to evaluate and hire as it pleases.
Phoenix attorney David Bodney, who specializes in public record and open meeting laws, said legitimate reasons for executive sessions include the receiving of legal advice, contract negotiations and considerations — but not decisions — on employment matters.
Decision making, he said, is required to occur in public sessions, as the very intent of open meeting laws are to ensure that government decisions are made in front of the public.
But sticking to the subject at hand in executive sessions can be easier said than done, Bodney added.
“It’s easy to veer away from the limited purpose for which an executive session is called, by discussing other matters,” he said. “That’s often how abuses of the executive session exemption occur.”
Prior to a July 8 commission hearing, Mathis told Arizona Capitol Times that the statement she read on June 29 was a work in progress in which she prepared for “numerous scenarios” that could have transpired.
Certain firms that applied for the mapping consultant contract, she added, were polarizing enough to make predicting fellow commissioners’ votes easy.
Still, Mathis said she was less clear on the IRC’s relationship with state procurement, saying she did not know what led to the split or how she and Democrats José Herrera and Linda McNulty each gave perfect evaluations for Strategic Telemetry.
“I knew how I felt. I didn’t know how the others felt,” said Mathis, who attributed the scoring to a “coincidence.” Mathis denied privately speaking about the applicants with Herrera and McNulty, which would be a violation of state open meeting laws.
A review of the available procurement files reveal that Mathis, Herrera and McNulty all awarded a perfect 700 of 700 possible points to Strategic Telemetry, which has worked for the presidential campaigns of Barack Obama and John Kerry, and is currently involved in recall efforts targeting Wisconsin Gov. Scott Walker, a Republican.
Similarly, the trio each awarded far lower scores to National Demographics Corporation, a firm with conservative ties that was awarded the IRC contract in 2001 and was favored this year by commission Republicans.
In an interview, Herrera said his first choice for the mapping consultant was Research Advisory Services. Still, his final evaluation scores show he gauged Strategic Telemetry — and not Research Advisory Services — to be the most qualified.
Herrera said he gave Strategic Telemetry a higher score after considering the way he suspected Republicans were going to score the firms.
“I had to,” he said.
Records provided by the IRC show Strategic Telemetry received the highest average point total from commission members, yet the agency’s procurement file appears to be missing the majority of evaluation records compiled for an earlier commission meeting on June 15 in Oro Valley.
The meeting agenda called for the consideration of “confidential documents associated with the evaluation” of responses submitted by all of the firms that responded to the state’s request for mapping consultant proposals, as well as the task of ranking the applicants. “Staff from the State Procurement Office will be present,” read the agenda item.
Just how the original seven consulting firms were evaluated is unclear. So is how the list was narrowed to four finalists, as the IRC’s existing procurement file appears incomplete.
The State Procurement Office is part of the Department of Administration. That agency’s spokesman, Alan Ecker, said the proposals of three firms were “set aside” by the IRC, but did not elaborate further in an email. Mathis, on July 8, said she was not aware of any additional evaluations apart from the state’s procurement file, but added that commissioners may have taken “notes” that she wasn’t aware of.
Mathis has not returned multiple calls for comment since the commission’s July 8 meeting seeking additional information.
Other commissioners simply disagree on whether initial formal evaluations of the RFP even existed.
Commissioner Herrera said he was not sure if he or other commissioners created written evaluations of the applicants for the June 15 commission meeting. Herrera said that, during the meeting, commissioners agreed that verbal assessments were sufficient.
“We all agreed — all five of us. We said, ‘Let’s make it simple.’ There was no individual scoring,” Herrera said. “A scoring sheet was not appropriate. It didn’t fit in. It was more of a conversation and us talking about the firms, and then getting feedback from (state procurement officials). We felt that we could eliminate three firms, without giving scoring.”
Herrera said he understood that state procurement officials could have overruled the IRC’s chosen consultant selection if that firm did not receive the highest score.
Those factors, he said, impacted his scoring.
“If we had voted 3-2 to select our firm, SPO could still turn around and pick who they wanted,” Herrera said. “So, I wanted to make sure the scores reflected our vote.”
But both Freeman and Stertz told Arizona Capitol Times on July 8 that commissioners conducted several — and not one — formal evaluations of the mapping consultant contract bids. Both declined to comment when asked about the whereabouts of the initial evaluations, citing laws governing executive session
McNulty, the other Democrat on the commission, did not return calls for comment.
The documents provided to Arizona Capitol Times include indications that there was more than one formal evaluation. Stertz’s evaluation of the final four applicants includes his initial evaluations of three consulting firms, which he referred to as “original scoring of the applicants written submittal scoring that created the record for the short list (of consulting applicants).”
Final scores reflecting a combined evaluation of both the firms’ RFP responses and follow-up interviews were also included in Stertz’s evaluation file.
Similarly, Freeman’s file made reference to multiple evaluations. He titled his file “Revised evaluation supplementing evaluation prepared for the June 15 meeting in Oro Valley.”
On the evaluation of one firm, Freeman also makes it clear that he recorded a higher score than that “provided on the initial evaluation sheet the commissioners completed in advance of the June 15, 2011, hearing.”
Upon exiting the three-hour executive session on June 29, McNulty questioned whether the split from state procurement guidance effectively allowed the commission to exercise legislative discretion to hire its chosen mapping consultant.
“Commissioner McNulty, that is correct,” replied IRC attorney Joseph Kanefield.
By that time, each firm had applied for the job with the understanding their bids would be graded under the conditions of the state’s request for proposals, which additionally held terms that directed any legal protests be filed with state procurement officials.
Final evaluations, which account for commissioners’ combined impressions of the firms’ bids and follow-up interviews, show stark differences of opinions among the commission’s members.
Republicans Freeman and Stertz gave their preferred firm, National Demographics Corporation, high marks for experience, and they panned Strategic Telemetry for relative inexperience in statewide redistricting, as well as what they perceived as highly partisan leanings.
“Strategic is a Democratic firm used by Democrats and progressives,” wrote Freeman. “Retaining this firm would raise serious concerns regarding perceived fairness and political balance.”
Meanwhile, commission Democrats and Mathis found a partisan bent to NDC, which has ties to what they viewed as a conservative institution — the Rose Institute of State and Local Government at Claremont McKenna College.
And they criticized the firm’s application for what they said were stock answers and a work history in Arizona that produced district boundaries that were ultimately rejected by the Department of Justice.
McNulty, who awarded the firm 125 of 700 points, criticized NDC’s “heavy emphasis on self-praise about experience,” its “careless” bid and its “conflicting responses” about the Rose Institute.
Attorney Tom Rogers, a former assistant attorney general who helped write the first state manual used by agencies to help navigate public records and open meetings laws, said most incomplete government records can be attributed to simple human errors like misfiling information.
Still, he said, it is important for agencies to understand that merely examining or discussing documents in executive session doesn’t affect whether documents are open for public inspection or can become or remain confidential.
“While they cannot discuss what was discussed about a document in executive session, it doesn’t mean a document otherwise a public record suddenly becomes not subject to public disclosure, he said.
Government documents are also routinely destroyed to comply with state record retention laws, and documents are typically thrown away during meetings as long as backup copies are not altered or destroyed — which can be illegal, he said.
“There is a prohibition against the destruction of public records, and the circumstances and the motivation for doing that would be something that would need to be looked into,” he said.
According to an Arizona State Library, Archives and Public Records order signed in May, government records reflecting requests for proposals, scoring, awards and other related records must be retained for six years.