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Three concerns cited in Fenn investigation
Thelma Grimes /San Pedro Valley News-Sun
Third-party investigator Mary Judge Ryan, a Tucson attorney, told the Benson City Council in a special meeting Monday, that of seven allegations against Mayor Mark Fenn, she has concerns with three of them.
Fenn said he is glad the investigation has been made public and he had been made aware of the allegations against him.
"There's a lot of things that have been omitted in the report or just not put together correctly," Fenn said. "Overall, it was fair and there are some missteps I may have taken in the past that weren't intentional, but I am glad to find out about them. I have learned a lesson to be more careful in the future."
Ryan was hired by the council to conduct an investigation into whether or not Fenn has violated state conflict of interest laws. Ryan said she used a March 18 letter written by Council members Kathy Suagee and Dianne Tipton as the framework.
The letter was originally sent to City Attorney Thomas Benavidez requesting that he set the wheels in motion to begin an investigation.
Ryan stressed to the council that her job was simply to investigate the allegations, and her report should not be construed as a finding of guilt.
"As you read the law, and as you read the case law interpreting the law, although on the surface it often sounds easy to apply, it is not," Ryan said. "The legislature intentionally has made the burden for violation of these statutes tough. The penalties are criminal. Additionally, the legislature repeatedly has made it clear that elected officials are to be put in place and taken out of place through the electoral process. The legislature and courts narrowly construe the statutes. Often to the layperson it sounds easy to determine whether or not there is a conflict of interest and whether or not there is a violation. All lawyers practicing law know it is a difficult thing to prove."
Of the seven allegations posted by Suagee and Tipton, Ryan said there is no proof that he violated conflict of interest laws on at least four of them, but she is seriously concerned with some business deals Fenn had during the last year involving three of the accusations.
The first is over Fenn's purchasing a piece of property from Triple L Management Group, a Las Vegas company, while at the same time trying to push through an annexation for them with the City of Benson.
The council adopted a resolution to authorize negotiations with Triple L Management regarding annexation of their property on State Route 90 on Nov. 13, 2006, according to Ryan's report. Triple L Management is listed as an officer of WM 10 LLC. Robert Lozzi is listed as the resident agent of both entities. Mayor Fenn acted as the agent for WM 10 LLC in their rezoning application filed Dec. 31, 2007.
Ryan said records indicate that Fenn was actively involved in the annexation process since at least July of 2007, and at one point accused former City Manager Martin Roush of dropping the ball on the project.
While Fenn did file a conflict of interest report on March 1, 2008, Ryan said he attended numerous meetings regarding the Triple L annexation before and after the document was filed.
Ryan said it is important to note that neither Fenn, nor the rest of the City Council, have actually voted on the annexation proposal, and he has not signed the final papers to purchase the 10-acre property at 2101 Prickly Pear from Triple L Management.
In her findings on the issue, Ryan said Arizona Revised Statutes require a public official to make known a substantial interest and refrain from any action on the matter.
"The investigation revealed that Mayor Fenn was in escrow to purchase property from some of the owners of Triple L as early as December, 2007," Ryan said in the 23-page report. "Mayor Fenn self-identified this conflict of interest regarding Triple L in a document dated March 1, 2008. There is no clear record that this document was properly filed with the city or of the date that any filing occurred. No record of filing of this document is available, but it appears the document was not filed with the city until May 2008."
Another concern of Ryan's dealt with the same issue, with the accusation being that Fenn has an unfair advantage over other developers because he is the mayor.
In the rezoning process of the property located on 2101 Prickly Pear, Ryan questioned Fenn's actions leading up to the council's approval in March.
Fenn asked city staff to expedite the rezoning process because the purchase of the property was contingent on its being rezoned from residential to business. Ryan said according to interviews conducted with staff, they felt compelled to speed up the process that normally takes six months. The rezoning was approved by the City Council in 53 days. Fenn did not vote with the rest of the council.
"Mayor Fenn was in escrow with the owners to purchase part of the property creating a direct, pecuniary interest in the rezoning of this property," Ryan said. "Mayor Fenn failed to file a disclosure of this conflict and actively participated in the rezoning process. Mayor Fenn conducted public hearings, responded to staff's comments and expedited scheduling of this matter before the council to ensure his pecuniary interests were protected. Review of this matter is complicated by the fact that Mayor Fenn was also acting as the agent for WM 10, LLC on the rezoning. Staff reported that his role in the rezoning pressured them. These actions appear to violate A.R.S. 38-503, which prohibits a public official with a substantial interest in any decision of the city from participating in any manner in the decision and A.R.S. 38-509, which requires filing of a specific disclosure of the conflict with the city. This investigation revealed that no such filing occurred until after the decisions and vote on the zoning application had taken place."
Fenn said he in no way thought his participation was going to be a problem, and had he known he would have gladly taken a step back.
Several times throughout her presentation, Ryan clarified for the council that she is not saying Fenn has violated the law and if the matter is to be pursued it would have to be through the justice system where a prosecutor would review the issue and decide whether the allegations warrant charges and if the charges would hold up in a trial where Fenn would have to be found guilty beyond a reasonable doubt.
"In conflict of interest, you are not looking at perspective or contingent conflict," she said. "The law is very careful to word that it has to be substantial. Again, because of those kinds of intricacies of the law, it is very, very difficult to come to the conclusion that there is an absolute violation of these statutory conditions. What my report outlines for you are serious concerns and that there may be violations."
Fenn asked several questions during the meeting, stating he had documentation to rebuff some of the information provided by Ryan. Fenn requested time to respond to the report in writing.
In the third concern provided by Ryan, the new dental building under construction on 4th Street is in question. The Tucson attorney questioned Fenn's method in getting the contract to build the new facility and whether or not he violated A.R. S. 38-503.
"Mayor Fenn was awarded the contract for the construction of the Benson Dental Building on Feb. 5, 2008, creating a direct, pecuniary interest in the decisions the city made on this matter" Ryan said. "The investigation revealed that staff felt intimidated by Mayor Fenn, resulting in changes in the plan review of this project. A public officer who has a pecuniary interest in a matter must disclose the conflict and refrain from participating in any manner in the decisions affecting the matter."
Ryan said she is concerned that Fenn was involved in the plan-review meetings for the dental building, and then ended up winning the bid for the entire project.
After her presentation, council members were given time to question Ryan on her findings.
Councilman Al Sacco asked Ryan to specify where and how she came upon her conclusions. Ryan said she interviewed city staff, Fenn, and relied on council agendas, emails and other city documentation to back up her conclusions.
Sacco asked if the staff interviewed during the investigation were under oath. Ryan said none were under oath and none of the interviews were taped. The Tucson attorney stressed to the council that if charges are filed against the first-term mayor, all interviews will be under oath and will then be taped.
Suagee and Tipton asked Ryan to go over some of the other allegations, which were not deemed as major concerns.
Suagee asked specifically about the accusations that Fenn has intimidated staff to get what he wants for projects being run by Fenn Homes.
In her findings on the issue, Ryan said Public Works Director Brad Hamilton, Building Official Mike Locket and Roush expressed concerns with the mayor. However, she noted that others said they have no problems with Fenn.
"It is unclear whether any of these employees have been subjected to adverse employment actions as a result of their reporting to authorities," Ryan said.
Roush was terminated in a 4-3 vote on July 28.
Suagee asked Ryan if it's normal to have a large number of "decision-making" staff members complain about an elected official. Ryan said she could not speculate and answer the question.
While no action was taken on the issue, after the meeting, Suagee said the information would be turned over to the Arizona Attorney General's office. Suagee said this is just one step in what will continue to be a long drawn-out process.
During the 56-minute meeting, Ryan said she has never been contacted by the Attorney General's office.
Fenn said while he understands the issues being brought up he in no way feels he has broken the law and if charges were to be filed he would fight them.
Third-party investigator Mary Judge Ryan, a Tucson attorney, told the Benson City Council in a special meeting Monday, that of seven allegations against Mayor Mark Fenn, she has concerns with three of them.
Fenn said he is glad the investigation has been made public and he had been made aware of the allegations against him.
"There's a lot of things that have been omitted in the report or just not put together correctly," Fenn said. "Overall, it was fair and there are some missteps I may have taken in the past that weren't intentional, but I am glad to find out about them. I have learned a lesson to be more careful in the future."
Ryan was hired by the council to conduct an investigation into whether or not Fenn has violated state conflict of interest laws. Ryan said she used a March 18 letter written by Council members Kathy Suagee and Dianne Tipton as the framework.
The letter was originally sent to City Attorney Thomas Benavidez requesting that he set the wheels in motion to begin an investigation.
Ryan stressed to the council that her job was simply to investigate the allegations, and her report should not be construed as a finding of guilt.
"As you read the law, and as you read the case law interpreting the law, although on the surface it often sounds easy to apply, it is not," Ryan said. "The legislature intentionally has made the burden for violation of these statutes tough. The penalties are criminal. Additionally, the legislature repeatedly has made it clear that elected officials are to be put in place and taken out of place through the electoral process. The legislature and courts narrowly construe the statutes. Often to the layperson it sounds easy to determine whether or not there is a conflict of interest and whether or not there is a violation. All lawyers practicing law know it is a difficult thing to prove."
Of the seven allegations posted by Suagee and Tipton, Ryan said there is no proof that he violated conflict of interest laws on at least four of them, but she is seriously concerned with some business deals Fenn had during the last year involving three of the accusations.
The first is over Fenn's purchasing a piece of property from Triple L Management Group, a Las Vegas company, while at the same time trying to push through an annexation for them with the City of Benson.
The council adopted a resolution to authorize negotiations with Triple L Management regarding annexation of their property on State Route 90 on Nov. 13, 2006, according to Ryan's report. Triple L Management is listed as an officer of WM 10 LLC. Robert Lozzi is listed as the resident agent of both entities. Mayor Fenn acted as the agent for WM 10 LLC in their rezoning application filed Dec. 31, 2007.
Ryan said records indicate that Fenn was actively involved in the annexation process since at least July of 2007, and at one point accused former City Manager Martin Roush of dropping the ball on the project.
While Fenn did file a conflict of interest report on March 1, 2008, Ryan said he attended numerous meetings regarding the Triple L annexation before and after the document was filed.
Ryan said it is important to note that neither Fenn, nor the rest of the City Council, have actually voted on the annexation proposal, and he has not signed the final papers to purchase the 10-acre property at 2101 Prickly Pear from Triple L Management.
In her findings on the issue, Ryan said Arizona Revised Statutes require a public official to make known a substantial interest and refrain from any action on the matter.
"The investigation revealed that Mayor Fenn was in escrow to purchase property from some of the owners of Triple L as early as December, 2007," Ryan said in the 23-page report. "Mayor Fenn self-identified this conflict of interest regarding Triple L in a document dated March 1, 2008. There is no clear record that this document was properly filed with the city or of the date that any filing occurred. No record of filing of this document is available, but it appears the document was not filed with the city until May 2008."
Another concern of Ryan's dealt with the same issue, with the accusation being that Fenn has an unfair advantage over other developers because he is the mayor.
In the rezoning process of the property located on 2101 Prickly Pear, Ryan questioned Fenn's actions leading up to the council's approval in March.
Fenn asked city staff to expedite the rezoning process because the purchase of the property was contingent on its being rezoned from residential to business. Ryan said according to interviews conducted with staff, they felt compelled to speed up the process that normally takes six months. The rezoning was approved by the City Council in 53 days. Fenn did not vote with the rest of the council.
"Mayor Fenn was in escrow with the owners to purchase part of the property creating a direct, pecuniary interest in the rezoning of this property," Ryan said. "Mayor Fenn failed to file a disclosure of this conflict and actively participated in the rezoning process. Mayor Fenn conducted public hearings, responded to staff's comments and expedited scheduling of this matter before the council to ensure his pecuniary interests were protected. Review of this matter is complicated by the fact that Mayor Fenn was also acting as the agent for WM 10, LLC on the rezoning. Staff reported that his role in the rezoning pressured them. These actions appear to violate A.R.S. 38-503, which prohibits a public official with a substantial interest in any decision of the city from participating in any manner in the decision and A.R.S. 38-509, which requires filing of a specific disclosure of the conflict with the city. This investigation revealed that no such filing occurred until after the decisions and vote on the zoning application had taken place."
Fenn said he in no way thought his participation was going to be a problem, and had he known he would have gladly taken a step back.
Several times throughout her presentation, Ryan clarified for the council that she is not saying Fenn has violated the law and if the matter is to be pursued it would have to be through the justice system where a prosecutor would review the issue and decide whether the allegations warrant charges and if the charges would hold up in a trial where Fenn would have to be found guilty beyond a reasonable doubt.
"In conflict of interest, you are not looking at perspective or contingent conflict," she said. "The law is very careful to word that it has to be substantial. Again, because of those kinds of intricacies of the law, it is very, very difficult to come to the conclusion that there is an absolute violation of these statutory conditions. What my report outlines for you are serious concerns and that there may be violations."
Fenn asked several questions during the meeting, stating he had documentation to rebuff some of the information provided by Ryan. Fenn requested time to respond to the report in writing.
In the third concern provided by Ryan, the new dental building under construction on 4th Street is in question. The Tucson attorney questioned Fenn's method in getting the contract to build the new facility and whether or not he violated A.R. S. 38-503.
"Mayor Fenn was awarded the contract for the construction of the Benson Dental Building on Feb. 5, 2008, creating a direct, pecuniary interest in the decisions the city made on this matter" Ryan said. "The investigation revealed that staff felt intimidated by Mayor Fenn, resulting in changes in the plan review of this project. A public officer who has a pecuniary interest in a matter must disclose the conflict and refrain from participating in any manner in the decisions affecting the matter."
Ryan said she is concerned that Fenn was involved in the plan-review meetings for the dental building, and then ended up winning the bid for the entire project.
After her presentation, council members were given time to question Ryan on her findings.
Councilman Al Sacco asked Ryan to specify where and how she came upon her conclusions. Ryan said she interviewed city staff, Fenn, and relied on council agendas, emails and other city documentation to back up her conclusions.
Sacco asked if the staff interviewed during the investigation were under oath. Ryan said none were under oath and none of the interviews were taped. The Tucson attorney stressed to the council that if charges are filed against the first-term mayor, all interviews will be under oath and will then be taped.
Suagee and Tipton asked Ryan to go over some of the other allegations, which were not deemed as major concerns.
Suagee asked specifically about the accusations that Fenn has intimidated staff to get what he wants for projects being run by Fenn Homes.
In her findings on the issue, Ryan said Public Works Director Brad Hamilton, Building Official Mike Locket and Roush expressed concerns with the mayor. However, she noted that others said they have no problems with Fenn.
"It is unclear whether any of these employees have been subjected to adverse employment actions as a result of their reporting to authorities," Ryan said.
Roush was terminated in a 4-3 vote on July 28.
Suagee asked Ryan if it's normal to have a large number of "decision-making" staff members complain about an elected official. Ryan said she could not speculate and answer the question.
While no action was taken on the issue, after the meeting, Suagee said the information would be turned over to the Arizona Attorney General's office. Suagee said this is just one step in what will continue to be a long drawn-out process.
During the 56-minute meeting, Ryan said she has never been contacted by the Attorney General's office.
Fenn said while he understands the issues being brought up he in no way feels he has broken the law and if charges were to be filed he would fight them.
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Reader Comments
The following are comments from the readers. In no way do they represent the view of bensonnews-sun.com.
concerned citizen wrote on Aug 20, 2008 7:18 PM:
" In response to Larry K's comment, thank you Suagee and Tipton for bringing this to light. "
the whiner wrote on Aug 21, 2008 6:33 AM:
" So, here we have the mayor of Benson whining to city employees that he doesn't want them to do their job properly. Please cut some corners for me and other developer/partners/business interests, because it's too hard. Waa waa waa.
This is just the guy we need leading Benson into the future. Is it any wonder his buildings blew down. Good thing he's not a surgeon. "
This is just the guy we need leading Benson into the future. Is it any wonder his buildings blew down. Good thing he's not a surgeon. "
Michael wrote on Aug 21, 2008 2:38 PM:
" Who wouldn't want to do what Mark did if you were in that position?I don't believe he did anything he wouldn't have done for any other person that needed something like that in the same situation.
I believe Mark to be a man of character and wouldn't have don't anything that he felt was unethical or harmful to the community.
Shame on you for thinking otherwise. Has he ever done anything that was not in the best interest of the community? I think not!
It definitely shows his character by taking accountability and manning up to his actions and making change. There was no hiding behind his position, pointing fingers or lying
We should only be so lucky to have more people in positions of power that see when they are not doing something perceived as right to change and do the right thing, even if it means loosing their powers, wouldn't you say? "
I believe Mark to be a man of character and wouldn't have don't anything that he felt was unethical or harmful to the community.
Shame on you for thinking otherwise. Has he ever done anything that was not in the best interest of the community? I think not!
It definitely shows his character by taking accountability and manning up to his actions and making change. There was no hiding behind his position, pointing fingers or lying
We should only be so lucky to have more people in positions of power that see when they are not doing something perceived as right to change and do the right thing, even if it means loosing their powers, wouldn't you say? "
dissappointed wrote on Aug 21, 2008 4:31 PM:
" Oh please!? why is this still being dragged out? didn't this happen months ago? it doesn't seem to me that any corners were cut, just a request to expedite something. If we don't do something to help growth, we are going to end up like Payson and have a bad image of anti-growth.. "
KAK wrote on Aug 21, 2008 10:18 PM:
" This is no different than the national elections right now: debating how many homes the candidates have instead of focusing on real issues that impact the voters. Please let this one go! "
JV wrote on Aug 22, 2008 8:44 AM:
" Sad thing is that the taxpayers paid an attorney $25k + for a 56 minute meeting coming to a decision stating "yeah, I guess he did some things incorrectly but nothing I believe to be guilty of breaking laws".
WOW, money well spent. I thank you Suagee and Tipton. "
WOW, money well spent. I thank you Suagee and Tipton. "
just definitions wrote on Aug 22, 2008 9:06 AM:
" disappointed
Saying "just a request to expedite something" is like saying "I just borrowed the car" when what you did was go for a joy ride. Or "I didn't stop at that stop sign because I just wanted to expedite myself around that corner so I could get to work on time". Or hey how about this "I wanted a good grade so I just looked at the "A" student's test paper so I wouldn't fail"
Just because someone isn't for growth at any cost doesn't mean they are anti-growth. "
Saying "just a request to expedite something" is like saying "I just borrowed the car" when what you did was go for a joy ride. Or "I didn't stop at that stop sign because I just wanted to expedite myself around that corner so I could get to work on time". Or hey how about this "I wanted a good grade so I just looked at the "A" student's test paper so I wouldn't fail"
Just because someone isn't for growth at any cost doesn't mean they are anti-growth. "
Draw the line wrote on Aug 22, 2008 10:44 PM:
" Michael, Dissappointed ,KAK andJV,
Have you no respect for the law? Obviously Mayor Fenn does not. I hope the rest of us do.
Seeing your comments tells me just how bad the wrong kind of leadership can be for our community.
Any council member that supports Mayor Fenn in this action should be recalled and I will be glad to lead the way. We can not reward corruption.
Anyone of them that thinks they may have a future in politics needs to know that what they do and say and how they vote about Fenn will follow them around for ever.
What don't you understand about item # 2 in the report. It says that Mayor Fenn broke the law. On two other issues #'s 5 and 6, there are very serious concerns. This means you need to hire a good attorney Mayor Fenn to keep yourself from going to jail.
. As for the other counts I believe that there was much talk about ethics. This is also serious. The man is our Mayor. All that he says and does reflects on us and defines us as a community.
This is more than a little dispute between two council members and the Mayor. This goes to the core of who we are and what we stand for as a community. READ the REPORT. We waited for it and we paid for it so READ IT. This is not just a slap on the had. This is a smoking gun and the News Sun knows it and so does this community. You can get a copy from our City Clerk Vicky Vivian at the City Hall. If you can not afford to have her make you a copy then just ask to review it right there.
How many times does someone have to break the law before you will say he he is guilty. Once, Twice, Three times? How many? Do you think that this or any other community would give you the same break that you want us to give Fenn if you broke the law?
This report had nothing to do with trying to do something good for this community or any community member. This has to do with Mayor Fenn illegally lining his own pockets.
He broke the law. Instead of standing up and admitting it he wants us to ignore it and let life gone on as usual. Sure, that will do much for our reputation as a community. This is tough love Mark. RESIGN it is the only decent thing to do. If you don't, then we can all look forward to more embarrassment and turmoil within the community.
The Attorney Generals office will be looking into this and continuing the investigation and I for one believe that there will be a pending trial followed by a conviction.
Don't ask this community to to stand behind you any more Fenn. YOU BROKE the LAW not Tipton and Suagee, YOU plain and simply willfully broke the law. Make the wrong you caused this community right. RESIGN NOW. Give us all a break. "
Have you no respect for the law? Obviously Mayor Fenn does not. I hope the rest of us do.
Seeing your comments tells me just how bad the wrong kind of leadership can be for our community.
Any council member that supports Mayor Fenn in this action should be recalled and I will be glad to lead the way. We can not reward corruption.
Anyone of them that thinks they may have a future in politics needs to know that what they do and say and how they vote about Fenn will follow them around for ever.
What don't you understand about item # 2 in the report. It says that Mayor Fenn broke the law. On two other issues #'s 5 and 6, there are very serious concerns. This means you need to hire a good attorney Mayor Fenn to keep yourself from going to jail.
. As for the other counts I believe that there was much talk about ethics. This is also serious. The man is our Mayor. All that he says and does reflects on us and defines us as a community.
This is more than a little dispute between two council members and the Mayor. This goes to the core of who we are and what we stand for as a community. READ the REPORT. We waited for it and we paid for it so READ IT. This is not just a slap on the had. This is a smoking gun and the News Sun knows it and so does this community. You can get a copy from our City Clerk Vicky Vivian at the City Hall. If you can not afford to have her make you a copy then just ask to review it right there.
How many times does someone have to break the law before you will say he he is guilty. Once, Twice, Three times? How many? Do you think that this or any other community would give you the same break that you want us to give Fenn if you broke the law?
This report had nothing to do with trying to do something good for this community or any community member. This has to do with Mayor Fenn illegally lining his own pockets.
He broke the law. Instead of standing up and admitting it he wants us to ignore it and let life gone on as usual. Sure, that will do much for our reputation as a community. This is tough love Mark. RESIGN it is the only decent thing to do. If you don't, then we can all look forward to more embarrassment and turmoil within the community.
The Attorney Generals office will be looking into this and continuing the investigation and I for one believe that there will be a pending trial followed by a conviction.
Don't ask this community to to stand behind you any more Fenn. YOU BROKE the LAW not Tipton and Suagee, YOU plain and simply willfully broke the law. Make the wrong you caused this community right. RESIGN NOW. Give us all a break. "
ashamed wrote on Aug 24, 2008 1:39 AM:
" Wake up Benson, the rest of the state is laughing at you. Tucson Weekly had a story in it about Benson politics and it makes you look like the Beverly Hillibillies. Better get it together people! "
arizonadonald wrote on Aug 25, 2008 9:36 AM:
" I believe the fuss by Tipton and Suagee is counterproductive and is on the maturity level of seventh and eighth graders. "
Good Night wrote on Aug 28, 2008 11:52 PM:
" Don't you people get it! Break the Law=WRONG. Wrong should equal Punishment. Abusing public trust is not a small thing! Stealing from the public is wrong! Yes stealing. when someone uses their office for personal gain that is stealing! Stealing from the people of Benson. It is not childish to require good conduct of public, elected officials, it is maturity at the highest degree! Willing to face ridicule from those who have less than honorable character. No, I did not say they are mafia toting tommy guns, but at what point will it stop? Perhaps it is time to recall our Mayor before the coffers are emptied and the city is bankrupt and Daddy Warbucks is walkingaround with swollen pockets with little or no thanks to the tax payers. But it is time for the citizens to take a stand for dong the RIGHT things and sweeping things under the carpet or we will soon have a huge mountain of dirt under our carpet. TSk Tsk. "
Larry K. wrote on Aug 20, 2008 4:44 PM:
It appears Fenn had his finger in the pie. It is all Suagee and Tipton’s fault for bringing this to light. Benson has reverted back to the mid 90's. "