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Romley v. Arpaio2/19/2002
iff's attorney. Rule 10.07 provides, in relevant part, as follows: "Parties may represent themselves or be represented by legal counsel, or a lay representative, of their choosing." Maricopa County Employee Merit System Rule 10.07.
On October 5, 1999, the hearing officer ruled that Lebowitz could appear in the Gerberry appeal as the Sheriff's attorney. The hearing officer reasoned that the Sheriff had the authority to choose his own counsel because his office was constitutionally created, thereby granting him "implicit authority to conduct his office as he reasonably deems proper." The hearing officer additionally interpreted Rule 10.07 as authorizing agencies to either employ counsel or designate lay persons to represent them before the Commission. He reasoned that the Commission has the power to "define the qualifications of those advocates who appear before it" without interference by the Arizona Supreme Court or the County Attorney.
The County Attorney's office subsequently engaged attorney David J. Damron to advise county representatives, including the Sheriff's office, in the selection of counsel for the Gerberry matter, to review bills submitted by that counsel, and to advise the Board as the matter progressed. The County Attorney's office hired Damron to screen that office from any contact with the Gerberry case in light of the conflict of interest. The office provided Damron with a list of Board-approved private counsel for use in selecting counsel. The Sheriff's office thereafter rejected Damron's assistance, citing the hearing officer's ruling.
On October 22, the County Attorney moved to intervene in Gerberry and further asked the hearing officer to reconsider his ruling. After the hearing officer denied the motion, the County Attorney sought a stay of the upcoming hearing and appealed the hearing officer's ruling. Gerberry's counsel then sought to continue the hearing until the County Attorney's appeal had been resolved. The hearing officer denied the motion to continue, and the Commission placed the County Attorney's request for stay and its appeal on the agenda for a meeting scheduled after commencement of the Gerberry hearing. Accordingly, the County Attorney sought and received a stay of the hearing from the superior court. The Commission thereafter denied the County Attorney's appeal, finding that the Sheriff and his office may choose either Lebowitz or anyone else to represent them before the Commission. In the midst of this legal wrangling, Gerberry filed a notice of claim for wrongful termination and other causes of action against the Sheriff, an employee of his office, and the Board, seeking damages in the amount of $8 million.
The County Attorney next filed in the superior court a complaint for judicial review of the Commission's decision and a declaratory judgment action, naming the Commission, the hearing officer, and the Sheriff as defendants. The County Attorney asserted that the Sheriff had no authority to hire in-house counsel to perform duties that the County Attorney is legally charged to perform (count I); that a Sheriff's office employee could not represent the office before the Commission as a "lay" representative (count II); and that only the County Attorney has the authority to assign counsel to the Sheriff's office (count III). In addition to reciting the events involving the Gerberry matter, the County Attorney described similar disputes that had arisen between his office and the Sheriff's office regarding legal representation in unrelated cases that did not involve conflicts of interest.
Because the facts underlying the issues were not disputed, both parties filed motions for summary judgment. The trial cour
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