Gary Phillips was just one of almost 500 employees fired since Department of Economic Security Director Tim Jeffries took the helm of the social-services agency.
Phillips’ termination had a higher profile, though, because it came with a press release, an arrest in the office, and the accusation from Jeffries that he attacked a co-worker.
The Arizona Attorney General’s Office and the Maricopa County Attorney’s Office looked at the allegations separately and each declined to prosecute what was essentially “touching a fellow employee on the leg above the knee.” DES contends it never consulted with the AG.
Phillips’ case was one of several involving publicized arrests of DES employees, including one in which the agency may have unlawfully disclosed the name of an employee who was a food stamp recipient.
Kurt Altman, a defense attorney in the area of criminal law and a former federal and state prosecutor, said the workplace arrests and subsequent press releases smack of the shaming ritual of a perp walk, the public display of an alleged criminal to generate publicity.
Altman, who is not involved in any of the DES cases, said Phillips might even have a case for a federal civil rights suit.
But from now on, Jeffries will have no say on who gets canned, even if the employee is suspected of a crime.
Gov. Doug Ducey publicly stripped Jeffries of his power to terminate employees after news reports that he had fired roughly 7 percent of the agency’s 7,000 employees since January 2015.
Ducey directed state Human Resources Director Nancy Gomez to have the final say on any DES terminations.
Taken away in handcuffs
DES was well into its firing binge by August 2015, when the first press release announcing the arrest of an employee accused of unlawfully using food stamp benefits was released.
Jeffries said in a September 2015 interview with the Arizona Capitol Times he was “exiting” bullies and liars from the DES ranks.
Investigators with the DES Office of Inspector General arrested another employee in November. A press release with the headline “Second DES Employee Arrest Since Arrival of Director Jeffries,” soon followed.
The legal standard for making an arrest is probable cause, far below the standard of beyond a reasonable doubt for conviction.
Altman said it is highly unusual for police to make a probable cause arrest in a white collar case, especially ones involving relatively smaller dollar amounts.
He said investigators typically don’t make an arrest until after an indictment, if at all. Altman said he has been involved in fraud cases involving millions of dollars in which the defendants were indicted and summoned to court, but not arrested.
DES has announced through press releases the arrests of five other employees, who were taken from their offices in handcuffs.
“It seems like just a muscle-flexing tool to harass people or to send the message to other people,” Altman said. “I don’t know why they’d be doing that.”
Tasya Peterson, an agency spokeswoman, said there are many reasons.
“The work location is a controlled environment,” she said.
Investigators know when those being arrested will be at work and know there will be no family or weapons close by. The person probably won’t be drunk or high. Their childcare is probably already handled. And arrests at home require surveillance, developing intelligence, and require a larger team.
Peterson said there are also reasons for conducting a probable cause arrest before submitting a case for prosecution.
It prevents the destruction of evidence, stops the crimes from continuing, avoids “flight risk,” and allows investigators to interview the suspect in custody to obtain a possible confession.
Ernesto Gonzalez, 33, who helped find employment for the blind, was arrested in November and indicted in June on counts of fraud, conspiracy, theft and unlawful use of food stamps. His attorney is working on a restitution settlement and he is set for trial December 15, according to a court minute entry.
A case involving a former employee accused of financially exploiting a vulnerable adult and another former employee accused of food stamp fraud have been submitted to the Attorney General’s Office and Maricopa County Attorney’s Office respectively for prosecution, but charges have yet to be filed.
There was one arrest and press release in March 2016 in which the agency did not name the employee.
Peterson declined to provide the name, citing a state law and federal laws that make the names of food stamp recipients and anyone receiving benefits through DES confidential. Violating the state law is a misdemeanor.
The agency did, however, release the name of a client in a November 10, 2015, press release, and was notified by the Attorney General’s Office that was forbidden, Peterson said.
The agency also named Rep. Ceci Velasquez, D-Phoenix, in a press release, but Peterson said that although she was a client, DES didn’t identify her as one until after her indictment was made public by the courts.
Velasquez pleaded guilty October 25 to a misdemeanor count of unlawfully using food stamps, for which she’ll serve probation and do 100 hours of community service. She has paid $1,726 in restitution.
‘Not a chargeable offense’
The headline of the press release accompanying the arrest of Phillips said he was arrested for physical assault.
“I am outraged that one of our employees would attack another co-worker,” Jeffries said in the press release. “My heart aches for the victim. We will do everything in our power to see the individual who committed this crime is held accountable to the fullest extent of the law.”
Attempts to reach Phillips were unsuccessful.
The press release didn’t include behind-the-scenes discussions between the Attorney General’s Office and investigators.
Mia Garcia, a spokeswoman for the AG, said prosecutors advised DES before the arrest “the Phillips case was not a chargeable offense,” which Peterson said is not true.
DES then submitted the case to the Maricopa County Attorney’s Office, which declined prosecution.
Altman said Phillips could make a federal case alleging misconduct by DES for making the arrest after being advised there was no case.
He said it reminds him of Maricopa County Sheriff Joe Arpaio and former Maricopa County Attorney Andrew Thomas arresting former County Supervisor Don Stapley in 2009. They went against the advice of Yavapai County Attorney Sheila Polk, who wanted them to gather more evidence before an arrest.
That arrest was a key part of the case that led to Thomas’ disbarment in 2012.
“Obviously a different scenario, but it smacks of that kind of conduct,” Altman said.
DES refused to release the investigative report at the time of Phillips’ arrest, saying the case was still under investigation. But the agency did provide a short, vague written summary alleging Phillips “physically assaulted” the victim “numerous times on one occasion,” and one employee witnessed “the incident of physical abuse.”
The incident left the victim traumatized to the point of wanting to retaliate against Phillips and wanting to get her gun and shoot someone, according to the summary.
The County Attorney’s Office provided the Capitol Times with a different summary written by an investigator.
“The defendant repeatedly touched victim on the leg above the knee. The touching was unwelcome. Victim had PTSD (post-traumatic stress disorder) from previous sexual assaults and meets the definition of vulnerable adult,” the summary read.