OV employee who gave councilman recording fired after investigation - The Explorer: Pima Pinal

OV employee who gave councilman recording fired after investigation

Garner asked for CD used in campaign

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Posted: Tuesday, September 14, 2010 11:00 pm | Updated: 8:10 am, Thu Mar 24, 2011.

The Town of Oro Valley has fired a longtime employee after she provided a town council member with a recording of a conversation taped at a cancelled town board meeting.

Planning and Zoning Department office worker Deanna Ruiz was fired July 30, following an investigation into whether she retrieved a digital recording of a conversation caught on an open microphone at a stormwater utility commission meeting, recorded it to a CD and gave it to Councilman Bill Garner. An official account of the incident was released on Aug. 24.

Her firing, and the actions that preceded it, raise questions about whether elected officials should communicate directly with town employees, what constitutes a public record, and if town officials attempted to hide the existence of the recording.

What happened

Ruiz's job required her to record and then upload stormwater and other commission meetings to the town's website. Oro Valley purchased a software system from San Francisco-based Granicus to stream online and archive meetings.

The meeting in question, scheduled for March 18, was cancelled for lack of a quorum.

After the cancellation, a live microphone captured a conversation between then-Councilman K.C. Carter and board chairman James Dunn. Carter was at the meeting in his role as council liaison.

Carter told the chairman that he intended to act as an adviser to Satish Hiremath in the event Hiremath was elected mayor. Hiremath was elected in May, over challenger Mike Zinkin.

Following the meeting, the recording was deleted from the Granicus system under the direction of the town clerk. At the time, Ruiz said she was not comfortable with deleting the recording, but town officials assured her there was nothing illegal because no official business had been discussed at the cancelled meeting.

Some of the meeting attendees were supporters of Zinkin, who afterward told him what was said. Zinkin then asked Councilman Garner if a recording of the meeting was available. Garner later contacted Ruiz and asked her to give him a copy of the recorded conversations.

That request, and the actions that followed, contributed to Ruiz losing her job.

The incident prompted an internal review and a Pima County Sheriff's Department investigation, which later was forwarded to the FBI. The results of that investigation found that no laws were broken.

A series of conversations

Town policy discourages council members from direct contact with employees. Elected officials are told to communicate through the town manager.

"Council members should not contact staff with special project requests or utilize large blocks of staff time in order to pursue individual areas of interest," according to town council policy.

Garner said he initially contacted the Oro Valley Town Clerk's office to inquire about the cancelled meeting and any recording made. He was told that the meeting didn't take place and that the recording was deleted. Convinced the recording was retrievable, Garner called Town Attorney Tobin Rosen.

"I had to go through Tobin because I was getting stonewalled by the town clerk's office," Garner said. "(Town Clerk) Kathi Cuvelier basically lied to me."

Cuvelier said neither she nor anyone on her staff lied to Garner. When the councilman made a verbal request for the recording, Cuvelier said, she thought it had already been deleted and was not retrievable.

"We would not ever intentionally lie to anybody," Cuvelier said. "Based on the information we had at that time, we did not think there was a recording."

With Rosen's consent, Garner contacted Ruiz and asked if she could retrieve the recording.

"I told him (Garner) that if he wanted to know what happened at the (March 18 stormwater utility) meeting, he should ask the people who were there," Rosen told The Explorer.

Ruiz also contacted Rosen after Garner called her.

In his statements to town officials about the incident, Rosen indicated that he directed Ruiz to oblige a council member's request.

"I simple (sic) advised her to provide what they requested, if she was able to do so," Rosen said, according to documents town officials provided.

Acting on Garner's request, Ruiz located the digital recording, transferred it to a CD and put on it on the councilman's desk at town hall.

"I didn't think that I did anything bad," Ruiz said.

Officials charge incompetence

In a July 30 letter notifying Ruiz that she would be fired, town officials specifically cite the retrieval of recording as a reason for her dismissal.

That letter states, in part, that providing Garner with the recording "demonstrated incompetence on (Ruiz's) part as well as a failure to come forward to management with necessary information regarding the existence of the material."

Town officials say Ruiz was not forthright and did not follow the proper chain of command to inform them that the recording was available for retrieval. She and Garner both contacted Granicus and were provided instruction on how to access the deleted recording.

"It was not until a copy of the 'chatter' recording was publicly posted on the L.O.V.E. blog that Ms. Ruiz and VM (Vice Mayor) Garner declared their actions," according to the town's investigation.

Ruiz disputed that assessment, saying she told Rosen and others that the recording was available.

Town officials also claim Ruiz did not properly notify attendees of the March 18 meeting that she had begun the recording. Carter reiterated the claim.

Ruiz disagrees with the account. She said everyone present, including Carter, was told the recording would begin.

"At one time he says, 'Is this thing recording?' and hits my laptop. I said 'yes'," Ruiz told The Explorer.

It's difficult to discern everything said on the recording because of the multiple simultaneous conversations and crosstalk.

In the aftermath, town officials have modified login procedures for the Granicus system to more closely monitor who gains access. All eligible employees have been assigned individual passwords. Prior to now, the town could not track users who accessed Granicus because all employees trained on the system used the same password.

Recording equipment also will no longer be set to record automatically.

Election year caper

The Pima County Sheriff's Department, and later the FBI, sought to determine whether the recording's release was a violation of election laws and if government resources were used to influence the outcome of an election.

Zinkin told The Explorer that he gave the recording to the L.O.V.E. blog. The blog supported Zinkin for mayor and posted a 20-second portion of the 10-minute recording on May 8, calling it evidence that Hiremath had "cut deals" with people to gain support for his candidacy.

"We don't know the nature of all of the deals Satish may have cut, but we do know that according to Carter's own words, Satish cut at least one deal; and that deal, the 'KC Carter: Daytime Mayor' deal, is bad for Oro Valley," wrote Richard Furash in a May 8 blog post.

In the portion of the recording posted to the web, Carter said he intended to handle Hiremath's "daytime stuff."

Carter said his remarks were meant to exemplify his support for Hiremath.

"I thought he was a good candidate and I wanted to help him get elected," Carter said. "I said I could aid him if he got elected."

Carter called the tape's release a political move intended to hurt Hiremath.

"It turned out a tape was made and used to influence an election," Carter said.

Using government resources to influence an election does violate state law, but law enforcement authorities did not indicate to the town that any laws were broken and ultimately decided not to file charges.

Garner said he did not request the recording with the intention of using it for political purposes.

"We as sitting council members are not supposed to be trying to influence the outcome of elections," Garner said. He sought out the recording at the request of Zinkin, and was not responsible for anything beyond that.

Laws not specific

Town employees usually start recordings a few minutes before the onset of meetings, and later the pre-meeting chatter gets erased before it's uploaded onto the system.

In this case, that didn't happen. In fact, only those portions that normally would have been discarded were retained.

Town officials contend that what Garner's request was for material the town had no obligation to keep as a public record. Garner acknowledged that the recording might differ from other public records, but said the recording's existence made it a public record.

"I was conducting my own internal investigation through the attorney's office," Garner said. "I was getting the runaround."

He said he wanted the recording in the interest of transparency.

"It appears that this is a public record that the public should have access to," said Craig Morgan, an attorney with the Phoenix law firm Perkins Coie Brown and Bain.

Even though state law doesn't address the specifics of this situation, the issue would likely fall under open meetings statutes, Morgan said. To withhold the recording, he added, the town would have to demonstrate specific harm release of the document would cause.

"From a legal standpoint, disclosing it was the right thing to do," he said.

Rosen said the town didn't have an obligation to keep the recording because there was no official business that occurred at the cancelled meeting.

Not angry

Ruiz said she doesn't harbor any hurt feelings over the incident.

"I'm not an angry ex-employee," she said, but added that she thinks her firing was unjustified.

She said the town should in the future consider a new process for employees to express their grievances without fear of reprisals.

Asked if his actions led to Ruiz's firing, Garner said he doesn't think so.

"I do not feel any responsibility," Garner said. "We had an employee who has done nothing wrong."

More reasons given for firing

Former Planning and Zoning Department employee Deanna Ruiz was implicated in a larger personnel investigation involving an employee who had written an anonymous letter critical of the town's fiscal 2010-'11 budget, and of the consolidation of planning and zoning with other departments.

Town officials sought to find the identity of the author of the letter, and conducted interviews with numerous staffers. The author turned out to be Dee Widero, a 14-year veteran of the town's planning and zoning department. Widero was fired for writing that letter.

Town officials said Ruiz lied about knowing the identity of the letter's author.

She told The Explorer that she didn't feel comfortable revealing the name of the author even though she knew who had written it.

The town fired Ruiz on grounds that her actions were insubordinate, discourteous to another employee, incompetent and brought discredit to the town.

© 2014 The Explorer. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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