State v. Ross

• Decision Date: 30 January 2007
• Docket Number: No. 1 CA-CR 05-0200.,1 CA-CR 05-0200.
• Citation: 214 Ariz. 280,151 P.3d 1261
• Parties: STATE of Arizona, Appellee, v. Kevin M. ROSS, Appellant.
• Court: Arizona Court of Appeals

151 P.3d 1261

214 Ariz. 280

STATE of Arizona, Appellee, v. Kevin M. ROSS, Appellant.

No. 1 CA-CR 05-0200.

Court of Appeals of Arizona, Division 1, Department A.

January 30, 2007.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Cassie Bray Woo, Assistant Attorney General, Criminal Appeals Section, Phoenix, Attorneys for Appellee.

Hoidal & Hannah, P.L.C. By John R. Hannah and Martin Lieberman, P.C. By Martin Lieberman, Phoenix, Attorneys for Appellant.

OPINION

IRVINE, Presiding Judge.

¶ 1 Kevin Ross appeals from his conviction and sentence for violating the conflict of interest prohibition of Arizona Revised Statutes ("A.R.S.") section 38-504(C) (2001). He argues that taking and using publicly available information from his own agency for his own business purposes cannot be considered using his position to secure any valuable thing or valuable benefit that is of such character as to manifest a substantial and improper influence with respect to his duties. We agree, and therefore reverse his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2 Ross served as Maricopa County Assessor from 1997 to 2004. In November 2000, Arizona enacted the Senior Property Valuation Protection Act, also known as Proposition 104. Proposition 104 was designed to protect low-income seniors from ever-rising property valuations by "freezing" a qualified taxpayer's property valuation for tax purposes. To obtain this freeze, a homeowner was required to submit an application with supporting documentation.

¶ 3 Promotional materials for the program indicated that some portion of the applicants' personal information would be kept confidential. While the bulk of the materials stated only that participants' income information would be confidential, others noted that applicant information would be kept confidential without limiting it to income. A local paper quoted Ross as stating "people don't have to worry about any information showing up on the Web or in public-disclosure documents . . . [n]or is it shared with any other government agency."

¶ 4 The Assessor's office initially created a list of Proposition 104 participants in early 2001 when the office was first promoting the program. Ross made several public appearances to educate taxpayers about Proposition 104. When people approached him and asked if they were registered for the program, Ross could check the participant list.

¶ 5 In January 2003, Ross approached Colonial Mortgage Company ("Colonial") about originating reverse mortgages¹ for senior citizens. Ross filled out and signed an employment agreement with Colonial in January 2003. As Gary Graham of Colonial testified, Ross needed to complete the agreement so that Ross could earn commissions and share them with Graham.

¶ 6 Ross later gave Graham a spreadsheet containing the names and addresses of approximately 15,000 Proposition 104 participants, to be used in a direct-mail marketing campaign to sell reverse mortgages. Ross explained to Graham that while the spreadsheet contained public information, Ross could provide it in the form of a list.

¶ 7 Ross and Graham planned to split any commissions resulting from the sale of the reverse mortgages. Ultimately, their efforts did not yield a single sale and neither received any money from it. Expressing concern about his public image in March or April 2003, Ross asked Graham to stop sending out the mailings.

¶ 8 In addition to his business relationship with Ross, Graham was a contributor to Ross's re-election campaign. In February 2004, Graham gave Ross one hundred dollars for his campaign. Graham testified that his decision to make a contribution was "completely independent" of his earlier receipt of the list from Ross. Graham further testified that when he made the contribution, the list was virtually worthless to him.

¶ 9 In January or February of 2004, chief deputy assessor Fred Kelly obtained a CD-ROM containing the participant list of taxpayers that Ross had targeted in attempting to sell reverse mortgages. Believing that Ross was wrong to use this information for his own potential profit, Kelly delivered that CD to a tax consultant and lobbyist who served on the Property Tax Oversight Commission. The tax consultant gave the CD to a tax attorney who also served on the Commission, who in turn passed it on to the Attorney General's office.

¶ 10 The Attorney General's office contacted Kelly in February 2004. Kelly asserted that he had a conversation with Ross in February 2004 in which Ross was considering giving a new list to Colonial Mortgage if that company made sufficient campaign contributions.

¶ 11 In April 2004, Ross explained to Graham that he had political enemies who were trying to make trouble for him regarding the list. Ross asked whether Graham had the list and added that if anyone asked, Graham should act like he did not know about it. Graham replied that he no longer had it.

¶ 12 On April 28, 2004, Scott Blair, a private citizen, filed a public records request to obtain a list of 6,000 Proposition 104 participants who resided in certain zip codes. Jim Meulemans, deputy assessor of finance for the Assessor's office, was notified of the request and consulted with Ross about whether the Assessor's office should release the information. Ross told Meulemans to ask the county attorney's office whether the list should be disclosed.

¶ 13 On May 10, 2004, Meulemans followed up on his request for Deputy County Attorney Bruce White's professional opinion about whether Arizona law required the Assessor's office to designate the participants' names and addresses as confidential. White replied that Arizona statutes did not require the office to keep the participant information confidential. While the Assessor's office could argue that releasing the information would interfere with its operations, White cautioned that the courts seldom grant privacy claims that are unsupported by a specific statute. White characterized the ultimate decision as a policy call for the office.

¶ 14 Meulemans discussed White's opinion with Kelly, who typically handled public records requests. Meulemans recalled Kelly recommending that the office should refuse Blair's request and see how he responded. Meulemans also testified that when he told Kelly that Blair's attorney wanted to meet with the Assessor's office, Kelly told him to release the data. Kelly testified that Meulemans was the one who decided to disclose the data. Whoever made the decision, the Assessor's office released the records on May 24.

¶ 15 On May 27, 2004, a grand jury indicted Ross for (1) conflict of interest by disclosing confidential information in violation of A.R.S. § 38-504(B) ("count one"); (2) conflict of interest by attempting to secure a valuable benefit that would not normally accrue through an officer's official duties and that is "of such [a] character as to manifest a substantial and improper influence on the officer" in violation of A.R.S. § 38-504(C) ("count two"); and (3) obstructing a criminal investigation in violation of A.R.S. § 13-2409 (2001) ("count three").

¶ 16 The case went to trial in December 2004. After the prosecution completed its case-in-chief, the trial court granted the defense motion for a directed verdict on count one, ruling that the State failed to prove that the information was confidential. The trial court concluded, however, that count two and count three presented questions of fact that remained for the jury.

¶ 17 With regard to count two, the trial court denied the motion for acquittal because it believed there was

substantial evidence sufficient to allow the jury to return whether or not the defendant used or attempted to use his position as assessor to [secure] a valuable benefit, that is marketing and selling the list for what he and Mr. Graham hoped was separate and profitable income. There certainly is a question as to whether or not this exercise of his position to secure a valuable benefit would not ordinarily accrue to him in his position as the assessor, and whether or not it was of such character as to be a substantial and improper influence on his performance of his official duties as county assessor.

The trial court apparently concluded that the elements of the offense would be satisfied because Ross's taking the information could be considered an official act influenced by his hope for commissions.

¶ 18 The jury convicted Ross of conflict of interest, but acquitted him of obstructing a criminal investigation. The verdict resulted in Ross immediately forfeiting his office, pursuant to A.R.S. § 38-510(B) (2001). The court denied the defense motion for a new trial. It designated the offense as a class 6 felony, placed Ross on probation for three years, and ordered Ross to pay a total of $18,000 in fines and surcharges.

¶ 19 On appeal, Ross argues that the trial court should have granted his motion for acquittal on count two because the indictment failed to allege conduct that would constitute a violation of A.R.S. § 38-504(C) and the State failed to present substantial evidence to prove that he violated § 38-504(C) beyond a reasonable doubt.² We have jurisdiction pursuant to A.R.S. §§ 12-120.21 (2003), 13-4031 and -4033 (2001).

DISCUSSION

¶ 20 The central issue in this case is the scope of A.R.S. § 38-504(C). That statute states:

A public officer or employee shall not use or attempt to use the officer's or employee's official position to secure any valuable thing or valuable benefit for the officer or employee that would not ordinarily accrue to the officer or employee in the performance of the officer's or employee's official duties if the thing or benefit is of such character as to manifest a substantial and improper influence on the officer or employee with respect to the officer's or employee's duties.

Thus, the statute prohibits a public officer from (1) using or attempting to use the officer's official position to secure (2...