July 24, 2019
By Timothy Sandefur
I’ll be in court today [Update: Listen to the audio of the hearing here] in part two of our lawsuit challenging the decision by Pima County to spend $15 million of taxpayer money to subsidize a private luxury tourism company that’s supposed to take passengers on rides to the stratosphere in specially modified weather balloons. This part of the case, however, doesn’t involve the balloon company. It involves the county’s violation of state and county law when it hired the contractor and the architect to build the facility for the balloon company.
Arizona law—as
well as Pima County’s own ordinances—have very precise rules for how the county
is supposed to go about hiring contractors and architects for county projects.
The process is supposed to be open and competitive so that businesses will have
the chance to compete for the opportunity to build—and so that taxpayers can be
sure of getting the best value for their money. But rather than follow those
rules, Pima County Administrator Chuck Huckelberry and his staff invited one
particular contractor and one particular architect to a series of private
meetings beginning in August 2015—and spent the next five months planning out
the project. According to their testimony, in fact, they completed a third of
the work before even informing the County Board of Supervisors of the project
and asking them to approve it. And then they told the Board that there was no
reason to go through the open hiring process required by the law—since, after all,
these two companies had already got the project a third of the way completed.
It’s not just us saying that—it’s an Arizona trial judge, who ruled months ago that Huckelberry and his staff “hand-picked” the architect and the contractor “at a time when…it was not ‘impracticable’ to allow others the opportunity to bid for consideration on the project.” In fact, said the court, “the record is clear that for his part, Mr. Huckelberry had no intention of pursuing a competitive bidding process, or encouraging the Pima County Board of Supervisors to do so.” Instead, he invited the companies he personally “selected” and gave them “a five month ‘head start’ over any other potential bidders.” In other words, Huckelberry manipulated the system to ensure that the firms he chose at the outset would get the contract. “Reasonable people could argue,” said the judge, that “the Pima County Administrator’s actions during August-November 2015 provided a means for Pima County to evade or circumvent the typical procurement requirements.”
Still, the court
ruled in favor of Pima County on the grounds that because Huckelberry doesn’t
technically qualify as an “agent” under the state’s procurement laws, he’s not
subject to those laws. We’ve appealed that, pointing out that in fact, those
very laws say that only agents are allowed to obtain these kinds of
services—so even assuming Huckelberry and his staff aren’t agents, that’s all
the more reason why their actions were illegal.
Today’s argument
is likely to focus primarily on a procedural issue: whether the plaintiffs had
the legally required standing to sue. Arizona law has long held that taxpayers
can sue the government for illegal expenditures, but the county has asked the
court to create a new rule that would limit the ability of Arizonans to ensure
fiscal responsibility by their government. We think that’s a bad idea, and it would
mark a drastic departure from existing law.
But however the
case might turn out, one thing is clear: Pima County officials flouted state
law and engaged in illegal favoritism by hand-picking the companies to build
the balloon facility—precisely the sort of “good old boys network” deal that
Arizona law was written to forbid.
Timothy Sandefur
is the Vice President for Litigation at the Goldwater Institute.
