War of Words
Apache County board denies Hounshell's request for legal fees

Deputy County Attorney Brad Carlyon and County Attorney Criss Candelaria consider Sheriff Brian Hounshell's request for attorney fees to defend himself against the Board of Supervisors. [Photo by Kathy Helms/Independent]

By Kathy Helms
Diné Bureau

Apache County Sheriff Brian Hounshell listens as the board accepts his appeal, which delays its request that the sheriff put up $100,000 cash bond. [Photo by Kathy Helms/Independent]

ST. JOHNS — A last-minute appeal filed Friday by Apache County Sheriff Brian Hounshell has temporarily blocked action by the County Board of Supervisors to strip the sheriff of his powers after he failed to post a $100,000 cash bond requested by the board.

Supervisors also refused to support the sheriff's request for $30,000 to hire an outside attorney to represent his office in potential legal action against the board.

County Manager Delwin Wengert reminded Supervisors Tuesday morning that a performance bond is necessary to cover a gap in insurance coverage from the county's liability carrier, Arizona Counties Insurance Pool (ACIP).

Wengert said the bond was supposed to have been posted on Dec. 20. "That did not happen. The board allowed Sheriff Hounshell to continue then (until) today. As of now, I have not received any information in regard to a bond being posted."

Wengert then sought input from Deputy County Attorney Brad Carlyon, who represents the board in civil matters.

Carlyon said the Notice of Appeal filed Friday in Superior Court "in effect stays any enforcement action by the board at this time. We'll be filing paperwork with the Apache County Superior Court who will hopefully schedule the hearing to set and determine the amount of bond."

He said the sheriff would have 10 days to post bond after it is set by a judge, who will either affirm the board-recommended $100,000, or set a different amount. "If not posted within that 10 days, then the board can take action," he said.

After a year and a half of surveillance, Sheriff Hounshell was indicted in May 2005 by a state grand jury on four charges of misusing public funds amounting to $8,087. Included in that amount is $4,054 for the purchase of an enclosed trailer used for crime scenes, the Grandma Thomas Walk and other support services.

Hounshell also was charged with fraudulent schemes and theft. The indictment against him and Chief Deputy Brian Hough was dismissed without prejudice in late October, leaving the door open for charges to be refiled in another jurisdiction.

Backlash
However, as a result of the May indictment, ACIP notified Wengert on June 3 that an exclusion in the coverage prohibits coverage for "employee dishonesty" once the county has been made aware that a dishonest act has occurred.

As a result, Wengert and the board recommended Hounshell post bond. "We came up with $100,000 because some of the statutes require that some of the other elected officials have a $100,000 bond in place, so we just used that number," he said after the meeting, noting that the amount could change, depending on the judge.

"I don't believe our Superior Court judge will look at it because of conflict, so it will be taken to another judge, maybe in Navajo County. We'll try to expedite it as soon as possible because there is a gap in coverage," Wengert said.

Also Tuesday, Supervisors emerged from executive session only to turn down a request by the sheriff for $30,000 to hire outside legal representation for his office due to a perceived conflict between the Sheriff's office and the County Attorney's Office.

"Because he was indicted for activities outside the scope of his office, the board made the motion today to deny his request for outside counsel on the bond. He'll have to pay for that himself, because the indictment was for things outside the normal scope of his duties," Wengert said.

During his presentation to Supervisors, Hounshell said Supervisor David Brown had asked at the last meeting for more details on the conflict. "Over a week ago, I responded in writing to the board, the manager, and the county attorney's office (about) the conflict and spelled it out," he said.

Carlyon asked about a letter Hounshell had written to County Attorney Criss Candelaria in late December, indicating his intent as sheriff to sue the Board of Supervisors. "You asked for Criss to represent you in suing the county," Carlyon said.

"Exactly," Hounshell responded.

Carlyon cross-examined: "If you initiate litigation against the county, then that does create a conflict because the attorney's office cannot serve two masters, and that would create two masters. So, are you going to sue or not?"

Hounshell countered. "When we do sue, if we do, the board will be notified ... As of today, we have not sued." Carlyon said that since the sheriff has not yet taken legal action, "then there is no conflict at the moment."

The sheriff said, "If and when we file a special action against the Board of Supervisors, that will be when we file a lawsuit."

Conflict of interest
At that time, Carlyon told him, there would be a conflict of interest. "So are you asking for money for an attorney to sue the county? Or are you just asking for generic representation."

Hounshell told him, "It's the same representation that we've asked for from the very beginning: To have representation in reference to bond issues, interference with my office, and the discipline that's come down on my employees ...

"We feel we have no legal representation from your office, so we're asking for an outside source to come in and represent my agency," he said.

Carlyon told him, "At this point in time, because you have filed an appeal on the bond issue, we do have a conflict with you on the bond issue. ... On these other issues, there is a disagreement on personnel issues, but that doesn't mean there is a conflict because you disagree with the advice that you have been given from the County Attorney's Office.

"If you initiate litigation against the board or against Apache County, then we do have a conflict with that limited area of whatever the scope of your lawsuit is," Carlyon said.

Hounshell told him that is just what has occurred with the Notice of Appeal. "We've appealed the board's decision and I need legal representation for that as well." Carlyon questioned whether Hounshell already had hired representation.

"Right," the sheriff said. "And I'm seeking funding to pay the man."

Carlyon told him, "I'm thinking you have jumped the gun on that." He recommended Supervisors go into executive session so that he could further advise them as to their legal obligations to provide counsel for the sheriff.

After a brief session Carlyon told the audience: "The recommendation of the county attorney's office is that the attorney's fees request to appeal the bond be denied. It appears the county attorney's office is more in line with something that's outside the scope of the sheriff's responsibilities and therefore it should be a personal expense.

"If the sheriff decides to go forth with any other civil litigation against Apache County, then he could come back before the board and request an attorney to sue Apache County per state policy."

Hounshell's request for funds was denied 2-0-1 with Supervisors Tom White and David Brown voting to deny the funds and Jim Claw abstaining.

The sheriff said afterward, "They're not going to let up on me. But there comes a point in time as the duly elected sheriff of this county that I have to defend my office on behalf of the people. And that time came at today's meeting by filing the appeal and taking it into Superior Court.

"If they continue to interfere with the day-to-day operations of my office I'll have no choice but to file a special action and sue the Board of Supervisors.

"This is the biggest conspiracy overthrow of a political office that I've ever seen in my life. But I'm not going to quit fighting. It was apparent during the board meeting that the deck was stacked against me," Hounshell said.

"But I will do what the people elected me to do. I will be the sheriff of the county."