An organization that won a legal battle with the Senate over audit-related records is now asking a judge to hold Senate President Karen Fann in contempt — and possibly jail her — for failing to comply with the court order.
In new court filings, attorney Roopali Desai who represents American Oversight points out to Maricopa County Superior Court Judge Michael Kemp that he has twice ordered Fann and the Senate to obtain documents from Cyber Ninjas, the firm the Senate president hired to conduct the audit. And Desai said that legal efforts to fight that order ended Sept. 14 when appellate courts refused to void that order.
“Yet defendants still have not produced the documents they were ordered to ‘immediately’ produce back on Aug. 2,” she told the judge. Desai said the Senate is not only not pursuing Cyber Ninjas for its records but has not even asked others involved in the audit for the public records they have.
And the excuse, Desai said, is that Cyber Ninjas said it would not begin transferring records to the Senate because the request “is causing Cyber Ninjas to take time away from the completion of its audit report.” And even after the audit is released, she said there were no assurance made about when production would begin.
“Cyber Ninjas essentially told the Senate to pound sand,” Desai wrote. But she said that ignores the fact that the agreement that Fann has with the firm requires it to cooperate when, as in this case, the Senate has been sued.
And Desai said this can’t be entirely blamed on Cyber Ninjas.
“After being told that transferring the public records would not happen promptly because doing so would purportedly ‘take time away from the completion of Cyber Ninjas’ audit report,’ defendants elected not to instruct their agency to prioritize compliance with this court’s order over further work on the audit,” she told the judge. “Defendants’ decision to take no action to compel their agent to promptly produce all the records or put pens down on the audit until the transfer of public records was completed was contemptuous.”
Desai told the judge he should take note that the Senate was releasing the audit report on Friday. Yet Arizonans are being deprived “of their statutory right to see what lies beneath the report.”
Of note is that the kind of contempt citation that Desai is seeking could involve more than a financial penalty against Fann and the Senate. She told Capitol Media Services that there is an option for jail until the party found guilty “purges” the contempt by complying with the court order.
The failure to pursue documents from Cyber Ninjas and its subcontractors is only one of the issues for which Desai wants an order from Kemp.
There was no immediate response from Fann.
In separate legal filings, she said the Senate is taking an overly broad view of what is protected by “legislative privilege” and need not be disclosed under the state’s public records law.
“Defendants now rely on legislative privilege to shield from public view virtually every communication between or among Sen. Fann, Sen. (Warren) Peterson, Senate Liaison Ken Bennett and/or Senate Liaison Randy Pullen relating to the audit,” she told the judge. In fact, Desai said, the Senate wants to shield communications between any of those people “and anyone at Cyber Ninjas or the various subcontractors who are conducting the audit on the other.”
That list of withheld documents, she said, includes “virtually every substantive text message and email about the audit.” Instead, Desai complained, what the Senate has produce are “many thousands of pages of irrelevant materials,” including multiple copies of newspaper articles, generic emails from members of the public commenting on the audit, and even multiple copies of already public filings from this and other cases.
But the documents produced provide no answers to the fundamental question that American Oversight’s requests sought public records to answer.
For example, she want to know where are the funds to pay Cyber Ninjas and its subcontractors coming from. The Senate has said it is paying $150,000 but Cyber Ninjas CEO Doug Logan has said he has collected $5.7 million from other sources.
Then there’s the question of how and why Fann selected Cyber Ninjas which had no previous election audit experience.
“Who participated in that decision and what input did they receive?” she asked.
Kemp already has scheduled an Oct. 7 hearing on that complaint.