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State attorneys argue no harm done to ousted DES director

In this Oct. 22, 2015, photo, former Department of Economic Security director Tim Jeffries stands outside his former office, adorned with a "Director J :)" sign. (Photo by Rachel Leingang, Arizona Capitol Times)

In this Oct. 22, 2015, photo, former Department of Economic Security director Tim Jeffries stands outside his former office, adorned with a “Director J :)” sign. (Photo by Rachel Leingang, Arizona Capitol Times)

Saying the former director of the Department of Economic Security and the agency’s security chief have not been harmed, attorneys for the state are asking a judge to throw out their libel suit.

Attorney Daniel Dowd does not dispute that a report about Tim Jeffries and Charles Loftus done by the Department of Public Safety does detail things that investigators said they heard from those whom they interviewed about the activities of the pair. Many of those related to DES and the cache of weapons and ammunition the agency, under the pair’s supervision, had accumulated for its own security force.

But in a new legal filing, Dowd told Maricopa County Superior Court Judge Aimee Anderson that the report simply contains statements of facts.

He said what those facts mean is up to each reader to decide. That, said Dowd, means DES — and the state — did nothing to defame or libel either man.

Dowd also said the separate claim that the plaintiffs were held in “false light” by publication of the DPS report also cannot stand. He said Arizona does not recognize such a claim when it is based on a publication relating to a public official’s performance of public duties.

Gov. Doug Ducey fired Jeffries a year ago following reports that he had flown to Nogales on a state plane to take several staffers out drinking at a Nogales restaurant during business hours. Jeffries was celebrating the fact these workers had agreed to become “at will” employees who could be fired for no reason at all.

Loftus was fired at the same time along with several other top DES officials in a shakeup at the agency.

The governor then directed DPS to perform an inventory of all weapons and ammunition at the agency not assigned to employees there. That resulted in the seizure of 55 handguns and nearly 89,000 rounds of ammunition stored in the basement.

Among the findings in the DPS report was that the amount of ammunition “may reasonably be described as excessive,” with the report saying that is three or four times what a large police department might need in a year. Investigators also said they could not find about 4,000 rounds.

The pair filed suit last month claiming the report defamed them. While the lawsuit does not seek a specific amount — that is precluded under Arizona court practices — a prior demand letter from Jeffries said he wanted $5.1 million for damage to his reputation.

Dowd, in his pleadings, said anyone filing claim for libel under Arizona law must allege facts sufficient to show a false and defamatory statement concerning the plaintiff, that the statement was published and that the statement resulted in injury.

“The allegations within the complaint, even taken as true, do not meet these required elements,” Dowd wrote, meaning the lawsuit should be thrown out.

He said the DPS report presented individual interview accounts along with hundreds of pages of supporting documents, on which the conclusions are based. And Dowd said it was noted in the report when DPS received conflicting evidence, when it could not independently substantiate allegations, and when allegations were disputed.

In fact, he said the report even contains an email from Loftus about his position on the issues.

“DES outlined the facts available to it, thus making it clear that the challenged statements represent its own interpretation of those facts and leaving the reader free to draw his own conclusions,” the attorney told Judge Anderson. “DPS conclusions in the audit report are protected by the First Amendment and are not actionable as a matter of law.”

Anyway, Dowd said, many of the statements in the report are just that: simple statement of fact which cannot support a claim for libel.

For example, the report says Jeffries was involved in ammunition planning and procurements, and that he went to the gun range on a weekly basis.

“These statements do not suggest any untoward conduct,” Dowd wrote.

The attorney acknowledged that the report says there were statements from those interviewed that Jeffries and Loftus used DES ammunition for personal use at a private shooting range. But it also says in the report that “no evidence was discovered to substantiate these allegations.”

Dowd also said that Jeffries and Loftus have no legal basis to sue the state because many of the statements in the report were “generic,” with no specific reference to either of them.

These include that 4,050 rounds of ammunition were missing, ammunition was not secured, records about the use of ammunition were nonexistent, and that ammunition was purchased in violation of state procurement rules.

“These statements do not refer to Loftus (or Jeffries) and, at most, concern DES, the (agency’s) Office of Inspector General and DES personnel more generally,” Dowd wrote.

Gubernatorial press aide Daniel Scarpinato said the firing from the $215,250-a-year-job was the result of a series of incidents, with the Nogales trip just being the final straw.

There was the revelation that Jeffries had fired close to 500 workers, including many who had previously received high evaluations and even raises. That led to allegations that the director was targeting women, minorities, older workers and gays.

It got to the point that Ducey removed Jeffries’ power to fire workers. And the governor even set up a process of allowing those who already were let go to petition to get their jobs back.

In 2016, Jeffries came under scrutiny for emailing staffers about his trip to Lourdes and offering to take their written “special intentions” to the holy shrine.

A month later Jeffries found himself back in the public eye for sending a message to all DES employees on a state-owned email list with a link to a story with arguments against Proposition 205. That measure, since defeated, would have allowed for the recreational use of marijuana.

 

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