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Interim Duncan Town Manager Philip Cushman.

The Town of Duncan last week filed its formal response to a complaint filed by Greenlee County Sheriff Tim Sumner with the Arizona Attorney General’s Office over alleged open meeting law violations.

Interim Town Manager Philip Cushman said they admitted to some of the violations and disputed others. He also said town officials informed the AG’s Office of the many steps taken by council members to educate themselves on Arizona Open Meeting laws. They held a workshop Sept. 24 on the matter and received training from the League of Arizona Cities and Towns on Oct. 15.

Cushman characterized most of the allegations Sumner cited as “pretty trivial.”

Cushman said the town has spent more than $5,000 in legal fees on the matter and more than $2,000 hiring a staff member whose sole duty was to find documents pertaining to the matters at hand.

“We are now doing things in the right way,” he said.

Sumner alleged:

Legal action was taken during an executive session May 12, specifically three votes were alleged to have taken place.

An item about water-related litigation on the May 12 agenda didn’t list the statute allowing it to be in executive session.

The May 25 agenda was not properly posted online.

Then-Interim Town Manager John Basteen did not receive proper notice of executive session on May 25 because it wasn’t posted online.

The town’s response, written by attorney Christina Estes-Werther, paints a picture of a town in disarray in the final months of former Town Manager John Basteen’s tenure.

Council members upset by the results of a financial audit were considering firing Basteen at the May 12 meeting. Instead, after an executive session, it was announced he was assuming the role of Interim Town Manager while they sought his replacement. During the May 25 meeting, council members discussed forming a hiring committee to help replace Basteen.

In August, the council decided to ask for a forensic accounting investigation after a financial expert found irregularities in the town’s finances, including missing cash, dozens of credit card charges not backed up with receipts and extra payroll checks written without explanation. That investigation, by the Arizona Municipal Risk Retention Pool, is ongoing as is a separate but related investigation by the Arizona Attorney General’s Office launched in September.

On Aug. 16, Sumner filed his complaint with the AG’s Open Meeting Law Enforcement Team and two days later, Basteen resigned and Town Clerk Isabel Blancarte was fired.

According to Estes-Werther, town council members believe there is an audio recording of the May 12 executive session but they can’t find it. The person solely responsible for keeping those records was Blancarte. However, the executive session meeting minutes — which were found after several weeks of searching — prove no legal action or final decisions were made during executive session, so no violations took place, she said.

As for the executive session item about water-related litigation, Estes-Werther conceded it wasn’t properly noticed.

She further acknowledged the May 25 meeting wasn’t properly posted online within 24 hours as required. The attorney said Basteen posted the agenda and Zoom link on Facebook, but neither he nor Blancarte gave Council Member Deborah Mendelsohn the agenda and it was she who was responsible for posting it on the town’s website. The agenda was posted at Town Hall and the U.S. Post Office.

The attorney said since Basteen had a hand in posting the meeting at Town Hall and the Post Office and on Zoom, she “has difficulty answering” the allegation he didn’t have advance notice of the executive session. He never complained to the council about a lack of notice, she said.

In the end, the council never did go into executive session to discuss replacing Basteen, anyway, Ester-Werther said. They held an open discussion on the matter.

Attached to the town’s response is an affidavit by Cushman.

In it, Cushman notes that when he started Aug. 23, Basteen and Blancarte — the two people responsible for drafting and posting notices and agendas, minutes and personnel notices and maintaining records, were no longer employed by the town. Moreover, there were no administrative, management or statutorily-required employees in town hall at all.

According to Cushman’s affidavit, “there were piles of papers on desks, chairs, on the floor, in trash cans and documents and items in file cabinets were stored in no particular order.” He also wrote there was rotten food “festering” in desk drawers, trash cans and refrigerators.

“There was no practical way of finding information except by individually looking at each document,” Cushman wrote.

Further complicating the matter was that no one had access to the town’s computers because they didn’t have access codes or passwords and Cushman said he was forced to hire a new IT employee because the town’s contracted IT employee didn’t respond to their calls for help.

“I was not able to remove Mr. Basteen and Ms. Blancarte from access to our financial, information technology, remote access, general ledger or other accounts until after Aug. 25,” Cushman said.

Concerned about the “possible deletion of records,” Mayor Anne Thurman personally delivered hard drives to the town’s attorney to take to the AG’s Office for forensic evaluation, Cushman said.

A temporary employee was hired to specifically look for paperwork pertaining to the May 12 and May 25 meetings and it took weeks to find some of the documents, Cushman said. No audio recordings were found for either meeting.

The Zoom meetings couldn’t be retrieved because the account was under Basteen’s name, he said.

“Based on information and belief, neither Mr. Basteen nor Ms. Blancarte would be motivated to assist the Town to locate records in response to the open meeting complaint,” Cushman said.

At the end of her response, Estes-Werner suggested the AG’s Office contact the detective in charge of the other investigation for further information.

“The Town encourages you to contact Special Agent John Hillman in your office about the investigation involving Mr. Basteen, especially as it relates to the May 12, 2021, allegations,” she wrote. “These factual circumstances and Mr. Hillman’s information may provide you with additional insight as to the Town’s challenges over the past several months...”

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