The ongoing litigation arising out of the failed Referendum effort has resulted in rumors of scandal and allegations of corruption. The litigation arises out of a zoning change approved by the Town Council in January 2024 to allow for the redevelopment of the Four Peaks Plaza (also known as the Target Plaza).
The Political Action Committee, Reclaim Our Town (ROT), initiated a Referendum, that had it been successful, would have allowed voters to overrule the Town Council’s decision by placing the issue on the November General Election ballot. ROT collected the required number of signatures to have the matter placed on the ballot. However, after determining that the back side of all the signature sheets was not printed with the correct petition number, as required by Arizona law, the Town Clerk refused to accept the signature sheets and the signatures on those sheets.
Councilmember Allen Skillicorn has been actively promoting rumors related to this project. In a recent episode of “Skillicorn Scoops,” Skillicorn promised to talk about “Referendum-gate” and the “the flash drive scandal”. On March 26, 2024, Skillicorn skipped a meeting of the Town Council so he could travel to Tucson for a radio interview. During the interview, Skillicorn, identifying himself as a Fountain Hills Town Councilman, accused the “Corrupt-ocrats” of Fountain Hills of building lower-income, higher-density housing as part of a “Great Replacement Plan.” Skillicorn went on to suggest tat the councilmembers who voted in favor of the Four Peaks development may have been motivated by the prospect of receiving “campaign cash” from the developer.
Through recent pleadings filed in the litigation, facts have been disclosed that effectively debunk the rumors. ROT has not formally addressed or even acknowledged the significance of these facts or attempted to quash the rumors of corruption and cover-up.
The Referendum will not be on the November ballot.
An evidentiary hearing has been scheduled for May 21, 2024, before the Hon. Frank Moskowitz. Judge Moskowitz will rely on the evidence presented during the hearing to reach a determination as to whether ROT is entitled to the injunctive relief it requested in its complaint.
ROT has asked the court to issue a Writ of Mandamus, an order directing a government official (here, Town Clerk Linda Mendenhall) to fulfill her “official duty”. To put it simply: ROT has asked Judge Moskowitz to order Ms. Mendenhall to accept the faulty signature sheets and forward them to the county recorder for certification.
In the unlikely event that Judge Moskowitz issues the requested order at the conclusion of the May 21 hearing, the Referendum would not be put on the November ballot. The defendants (which include the developer, Sandor Development Company) will almost certainly file an appeal with the Arizona Court of Appeals. Even if an anticipated request for an expedited review is granted, it would take months for the Court to issue a ruling. If the Court of Appeals decided the issue in ROT’s favor, the Defendants would be entitled to seek additional review from the Arizona Supreme Court.
Even if an appeal is not filed, there would not be enough time for ROT to meet all the other requirements imposed by Maricopa County to place a Referendum on a ballot. Sending the signature sheets to the County Recorder is just one step in a lengthy process.
ROT fails to disclose relevant facts.
It is unlikely that the rumors of scandal and corruption would be circulating if ROT had been forthcoming in disclosing all the facts. For months, ROT led the public to believe that they were not provided with the correct forms. Had they disclosed this fact there would have been no basis for the rumor that the Town was “conspiring” with the developer to defeat the Referendum. These facts will be presented to the Court during the evidentiary hearing. Where the following will be put on the record:
There was a flash drive. Town Clerk Linda Mendenhall did in fact provide a flash drive containing the correct signature sheets to an individual she reasonably believed to be a representative of the opponents of the Four Peaks Development. This flash drive was given to Nancy Plencer, a ROT supporter and vocal opponent of the Four Peaks Development. Ms. Plencer visited the Clerk’s office and requested the documents necessary to file a Referendum to set aside the Town Council’s anticipated prior to the January meeting. Ms. Mendenhall provided these documents, including sample signature sheets, to Ms. Plencer on a flash drive.
ROT was provided with digital copies of the correct signature sheet before the signature sheets were completed, printed or circulated by ROT. Before the Referendum Petition Application was filed and the Petition Number assigned, Ms. Mendenhall sent an email to ROT Treasurer Larry Meyer, attaching a digital copy of the correct signature sheet.
Stepping back.
The significance of these disclosures may not be apparent to readers unfamiliar with the background of this litigation. Others may benefit from a brief recounting of the events leading to the failed Referendum. ROT opposed Ordinance 2024-01. The Ordinance amended the Town’s Official Zoning Map by changing the zoning for a 6.7-acre parcel at the southeast corner of Shea Boulevard and Technology Drive known as Four Peaks Plaza. The change to the Official Zoning Map was necessary for the mixed use (residential and commercial) development, proposed by Sandor, to proceed.
After a majority of the Town Council approved the change, ROT initiated a Referendum. If a majority of the voters sided with ROT, the Town Council’s determination that the zoning change was in the Town’s interest and consistent with its strategic plan would be effectively overruled.
To have the zoning change placed on the ballot for voters to decide, ROT was required to obtain 1,084 signatures from registered voters. ROT was able to collect 1,816 signatures. However, when ROT attempted to submit the signature sheets to the Town Clerk they were rejected because they did not comply with the requirements of the applicable statute.
In Arizona, a Referendum Petition is assigned a distinct number. In this case, the Referendum Petition was assigned the number: REF2024-01. Under Arizona law, both the front side and the back side of the signature sheets must include the number assigned to that Petition.
It is undisputed that ROT, as the Petitioner, was responsible for completing and printing the petition sheets used to collect the signatures necessary to place the Referendum on the ballot. The signature sheets had two sides. The front side of the signature sheet provided space for the signatures and addresses of those supporting the Referendum Petition. The back side of the signature sheets provided for verification by the circulator that the individuals whose signatures and addresses were shown on the front of the sheet had signed the petition in their presence and that the circulator believed that the information provided was correct.
The number printed on the front side of the signature sheets circulated by ROT (REF2024-01) was correct. The number printed on the back side of the sheets (REF2019-01 or REF2019-) was not correct. It has been determined that the erroneous number, REF2019-01, preprinted on the signature sheet ROT’s circulated, had been previously assigned to the successful Referendum Petition that overturned the Town Council’s approval of the Daybreak Project.
In its lawsuit, ROT alleges that Ms. Mendenhall, in her official capacity, wrongfully and illegally, determined that the signature sheets submitted by ROT did not comply with the requirements of state law because the Referendum Number on the back of the signature sheet did not refer to the correct Referendum Petition.
In its Complaint, ROT also alleges that Ms. Mendenhall is responsible for the fact that the back side of the signature sheets did not include the correct Petition number. Paragraph 18 of the Complaint alleges:
These petition serial numbers were secured by Lawrence E. Meyers, Treasurer of Reclaim Our Town, from Town Clerk Mendenhall. Town Clerk Mendenhall also provided Meyers with a sample referendum petition sheet.
Paragraph 19 of the Complaint alleges that:
The referendum petition sheet provided by Town Clerk Mendenhall left a space for the petition serial number on the front of the petition, but on the back of the petition sheet this space was filled in with “REF2019-01” and there was no space for the applicant to place its petition serial number. (emphasis added)
ROT does not allege that it could not have used available “technology” (Wite Out or white tape) to print over a number that was obviously different from the one that it had been assigned. ROT has offered an explanation as to why it did not contact Ms. Mendenhall to ask why the back sheet of the hard copy signature sheet, she allegedly provided to Meyers left “no space for the applicant to place its petition serial number.”
Facts revealed in recent pleadings filed with the Court, including Mr. Meyer’s sworn statement, provide a more complete picture of the events and debunk the rumors of collusion and corruption, that have been circulating since March.
The facts develop.
It is now clear that prior to the date the petitions were printed and circulated, Ms. Mendenhall provided ROT’s Treasurer, Larry Meyers with an electronic copy of the signature sheet that should have been used to collect signatures. This electronic copy of the correct signature sheet was not provided through a flash drive but as an attachment to an email. In this electronic copy both the front and back sides of the form had a designated blank space where the correct Petition number could have been added.
There is no “missing” flash drive.
Before reviewing the facts set out in Mr. Meyer’s recently filed Sworn Statement it is necessary to address the “missing flash drive” one of the underpinnings of “Referendum-gate scandal”. It is now clear that there was a “flash drive” that included a copy of the signature sheet that ROT should have completed, printed and circulated.
This flash drive was provided by Ms. Mendenhall to Nancy Plencer, a vocal opponent of the Four Peaks Development, a known ROT supporter and one of the circulators who collected signatures. Although testimony at the Evidentiary Hearing is likely to provide additional detail, it appears that Ms. Plencer visited the Clerk’s office before the January 17 meeting, and anticipating that the Ordinance would be adopted, asked Ms. Mendenhall to provide her with the documents that would be necessary to file a Referendum to set is aside. Ms. Mendenhall provided the requested documents to Ms. Plencer on a flash drive. Contrary to the rumors, unless Ms. Plencer destroyed or misplaced it, the flash drive is not “missing”.
Larry Meyers’ admits that the Town Clerk provided ROT with the correct form before the signature sheets were completed, printed and circulated.
On March 24, 2024, Larry Meyers signed a “Rule 80 Declaration”. The Declaration was Meyers’ Sworn Statement submitted as an Exhibit to a Memorandum filed by ROT.
This following timeline is based on statements made by Mr. Meyers in his Rule 80 Declaration.
January 18, 2024
On the day after the meeting, where the zoning change was approved, Meyers went to Town Hall to “secure referendum materials”. Meyers alleges that Ms. Mendenhall provided him with the application ROT needed to complete and file before being assigned a Petition number. Meyers also states that Ms. Mendenhall gave him hard copies of signature sheets. Meyers’ Declaration (Paragraph 3).
Meyers states that following his visit to the Clerk’s office he returned home and scanned the signature sheets into his computer. According to Meyers these were the documents that he subsequently “became the petition sheets that were circulated.” (Paragraph 5) According to Meyers the back side of the signature sheet Ms. Mendenhall provided to him was pre-printed with the wrong petition number.
On January 23rd at 12:02 PM Meyers received an email from Ms. Mendenhall that attached a digital copy of the signature sheet to be used by ROT to collect signatures. Both sides of the sample signature sheet provided to ROT on January 23rd were pre-printed with the statements: “LOCAL ONLY” and Revised 01/12/2023 in the bottom left corner.
In the lower left corner of the Sample Petition sheet provided to ROT by the Town Clerk on January 23rd there was a rectangle in the lower left-hand corner that provided a blank space for the correct petition number to be inserted:
According to Meyers, at “about 2:30 p.m.” on January 23, he returned to the Clerk’s office where he presented the completed application to Ms. Mendenhall and was provided with the Petition number which was to be included on the signature sheets. Meyer’s goes on to state that after he returned to his home he “filled in” the petition serial number and began copying the Petition sheets for circulation. (See paragraph 7).
The bottom left corner of the back side of the hard copy signature sheet Meyers claims Ms. Mendenhall provided to him on January 18 was blank. The bottom right-hand corner of the back side of the signature sheet was preprinted with the incorrect petition number.
Mr. Meyer’s did not fill in the correct number on the back side of the signature sheet because “there was no room”.
Meyers acknowledges that he received the electronic copy of sample petition sheet that “left room” for the correct petition number to be inserted before he returned the completed application to the Clerk’s office and before the petition number was even assigned. Yet, Meyers opted to “complete,” print and circulate the sample signature sheet that left “no room” for the correct number to be inserted.
Meyers’ Sworn Statement does not adequately explain why he filled in the correct number on the front side of the signature sheet he scanned into his computer on January 18, but failed to do so on the back side. The only explanation he has offered is that he could not include the correct petition number because the designated space on the back side of the hard copy form was filled by an incorrect number. This explanation is likely to result in a pointed examination by the lawyers for the defendants during the Evidentiary Hearing. Why, didn’t Meyer’s contact Ms. Mendenhall when he recognized that there was no space for the correct number, to be inserted, on the back side of the form that she had allegedly provided to him? Why didn’t Meyer’s look at the back side of the signature sheet that Ms. Mendenhall had sent to him (just hours before) as an attachment to an email to determine if it provided a space for the correct number to be inserted?
Mr. Meyer’s sworn statement is enlightening to the extent he admits that Ms. Mendenhall provided ROT with an electronic copy of the correct signature sheet before he completed and printed them. But the sworn statement does not explain why Meyer’s took no action to ensure that the correct number was “filled in” on the back side of the signature sheets.
Even if ROT could prove that it was provided with a hard copy of the “wrong form” it will not affect the outcome of the litigation.
It is important to note that resolution of the factual dispute as to whether Ms. Mendenhall provided ROT with a sample form pre-printed with the wrong petition number is not likely to affect the Court’s decision on the merits of ROT’s claim. Even if ROT could meet its burden of proving that Ms. Mendenhall provided Mr. Meyers with a sample form that was pre-printed with the wrong number, ROT will not be absolved of its responsibility to comply with the requirements of the statute.
As the Petitioner, ROT had the sole responsibility for ensuring that the statute’s requirements were met. Under Arizona law a Referendum Petition is assigned a distinct number. The ROT Petition was assigned the number: REF2024-01.
Under Arizona law, both the front side and the back sides of the signature sheet must include the number assigned to that Petition in the lower right-hand corner. ARS§19-121(A)2. If the correct petition number is not printed on both the front and the back side in the lower right-hand corner the signature sheet cannot be accepted and the signatures on that sheet cannot be counted. ARS§19-121.01(A)(1)(c).
The validity of these strict requirements has been recognized by the Arizona courts and it is very unlikely that Judge Moskowitz will adopt ROT’s argument that the statute is unconstitutional. It is also unlikely that the Court will accept ROT’s alternative argument that because the correct number was printed on the front side, the fact that the wrong number was printed on the back side is a mere “technical error” and the signatures should be counted.
Under Arizona’s current law all it takes is a “technical error” to disqualify a Referendum Petition. This “strict compliance” statute, enacted by legislators, is designed and intended to preserve the authority of those legislators to make and change the law. Considering the many technical requirements that must be complied with, those seeking to overturn legislation through a Referendum would have been well advised to seek guidance from an “election law” attorney.
The failure of the attempted “end run”.
Given the strength of the Town’s and the Developer’s legal arguments it is not surprising that an “end run” around the litigation was attempted. In March, Councilmember Skillicorn proposed a resolution that would have directed the Town Attorney not to defend the Referendum Litigation. Skillicorn needed support from two other councilmembers to have the resolution added to the agenda for the next meeting. Councilmembers Toth and Friedel supported putting the resolution on the agenda.
The resolution was not adopted. Mayor Dickey and Councilmembers Gryzbowski, McMahon and Kalivianakis voiced their concern that if the litigation was not defended, a default judgment would be entered. In that event, the Town, the councilmembers, the Mayor and Linda Mendenhall would be deemed to have admitted every allegation in the Complaint, including the allegations of improper and illegal conduct.
Councilmembers and Friedel and Skillicorn disingenuously raised the cost of the defense as a justification for directing the Town Attorney not to defend the litigation. Both councilmembers must have been aware that the costs of the Towns’ defense is covered by an insurance agreement and there will be no out-of-pocket costs to the Town if the litigation proceeds.
Now it is for the Courts to decide the issue. The next step in this process is the May 21evidentiary hearing that will be held in Judge Moskowitz’s courtroom, located in the County Courthouse, 201 Jefferson St., East Building-914.
The proceedings will be open to the public.
