Yavapai County District 3 Supervisor Donna Michaels attempted to improperly replace two long-time county Planning and Zoning Commission members by sending them a letter announcing she would be appointing their replacements on Jan. 1, 16 days after she was sworn into office. The letter ends by thanking them for their service, which one of the commissioners said gave the appearance that she was either firing them outright or asking for their immediate resignations, neither of which she has the legal authority to do.
Michaels sent the letter to both of the Yavapai County Planning and Zoning Commissioners who represent her district, Mark Mumaw and Curt Lindner.
Village of Oak Creek resident Mumaw was appointed in early 2015 and reappointed in 2019. He was not set to leave his post until 2023.
Jerome resident Lindner has served on the commission for 24 years and has been appointed six times. His current term is not up until later this year.
In her letter, Michaels informed the pair that she won the November election and that the previous supervisor was no longer in office:
“I am the duly elected Yavapai County Supervisor for District 3. The Honorable Judge [John] Napper administered the oath of office to me on December 15, 2020. Mr. Randy Garrison[,] who appointed you to the County Planning and Zoning Commission[,] will no longer be serving as the Supervisor for District 3.”
Michaels then cites state law which grants county supervisors the authority to appoint planning and zoning commissioners.
“In regard to appointments of members to the Yavapai County Planning and Zoning Commission, Arizona Revised Statute §11-802 Section D mandates as follows:
“Two members shall be appointed from each supervisorial district by the supervisor from the district.
“Therefore, pursuant to the statutory authority granted to me under ARS §11-802 Section D, as set out above I shall be appointing two new members to the commission effective January 1, 2021.
“Your past service to Yavapai County is appreciated and I wish you well in your future endeavors.”
No Termination Without Cause
While ARS §11-802.D grants supervisors the ministerial authority to appoint commissioners from their district, ARS §11-802.G. states “… each term shall be four years. If a vacancy occurs otherwise than by expiration of term, the vacancy shall be filled by appointment for the unexpired portion of the term. The board may remove members of the commission for cause.”
The statute does not give supervisors power to fire commissioners, nor does it state that supervisors immediately appoint commissioners after they are elected.
It only states that commissioners serve for four years, supervisors appoint commissioners when seats are vacated and commissioners cannot be removed on a whim, only for cause.
In her letter to Mumaw and Lindner, Michaels lists no cause — i.e., no breach, misfeasance or other inappropriate or illegal action — that would legally warrant either of their removals. The letter only cites Michaels’ election as the reason.
The commissioners doubted the legality of Michaels’ claims and asked the county for advice.
Yavapai County Development Services Director David Williams, who oversees the commission, said he received a copy of the letter from Lindner, informed the commissioners what the state law was on the matter over the phone and directed Lindner to speak with Michaels.
Lindner said he plans to remain until the end of his term in June and work with Michaels in service of the residents of District 3, as he has for nearly 25 years, after which, the decision to reappoint him or someone new is Michaels’ choice. He said he would like to remain.
After a phone call with Michaels on Jan. 12, however, Mumaw did resign on Jan. 13, writing: “Per our phone conversation on 1/12/2021 and per your request, I tender my resignation of my position on the Yavapai County Planning and Zoning Commission effective 1/31/2021.”
At the end of the Planning and Zoning meeting on Jan. 21, Williams announced Mumaw’s departure, thanked him for his five years of service and presented him with a Yavapai County flag.
Non-Political Post
The request to replace long-term commissioners without cause is highly unusual. District 2 Commissioner Linda Buchanan said, “I think it set precedent. At least for Yavapai County. Theoretically, [commissioners are] not political appointments, and service continues unless removal for cause.”
Despite the nonpolitical nature of a commissioner’s seat, Michaels appears to view the posts as political appointments.
In Jan. 14 emails to Williams after forwarding Mumaw’s Jan. 13 resignation letter, Michaels asked, “Let me know the vetting process/policy and by whom for my commissioners.
“I didn’t think vetting was correct for a political appointee either but that was the term used.”
Williams replied, “We just verify that they live within your district [since it is a district-specific appointment] and provide them a volunteer application. That is turned into the Clerk’s Office when it is being prepared. Vetting is truly not the right word for that, rather a quick screening.”
The Yavapai County website states that commission and board seats are volunteer posts. Both because they are nonpartisan seats and appointed by members of legislative bodies, not elected executives, they are not legally defined as “political appointments.”
No Response From Michaels
In regards to numerous inquires for this story, Michaels did not answer questions multiple times about why she requested the current commissioners resign.
Michaels did not list any cause — breaches, acts of misfeasance or other inappropriate or illegal actions — about either commissioner that would legally warrant either of their removals.
Instead, she sent an amended press release merely containing a link to ARS §11-802.
In a press release Feb. 23 announcing Mumaw’s replacement, Michaels stated, “On behalf of the District 3 constituents, I extend our thanks to Mark for his years of service on the commission.”
Michaels has named Charley Pitcher to replace Mumaw on P&Z. Pitcher’s wife, Rhoda Pitcher, made a large donation to Michaels’ campaign. The Pitchers have been fighting a development near their home that may come before P&Z for preliminary approval.
For the story on Pitcher’s appointment, please click here.
Arizona Revised Statute §11-802
with relevant parts highlighted:
County planning and zoning commissions
A. The board of supervisors of a county, in order to conserve and promote the public health, safety, convenience and general welfare and pursuant to this chapter, shall plan and provide for the future growth and improvement of its area of jurisdiction, coordinate all public improvements pursuant to the plan, form a planning and zoning commission to consult with and advise it regarding matters of planning, zoning and subdivision platting and, in the manner provided in this chapter, adopt and enforce those rules, regulations, ordinances and plans as may apply to the development of its area of jurisdiction.
B. The commission shall act in an advisory capacity to the board and may or, if requested by the board, shall make a report or recommendation in connection with any matter relating to the development of the county under the jurisdiction of the board. The commission shall make those investigations, maps, reports and recommendations in connection with those investigations, maps and reports as seem desirable within the limits of the monies available.
C. In the counties having three supervisorial districts, each county planning and zoning commission shall consist of nine members who shall be qualified electors of the county. Three members shall be appointed from each supervisorial district by the supervisor from that district, and not more than one of the three may be a resident of an incorporated municipality. Members of the commission shall serve without compensation except for reasonable travel expenses.
D. Except as provided in subsection E of this section, in the counties having five supervisorial districts, each county planning and zoning commission shall consist of ten members who shall be qualified electors of the county. Two members shall be appointed from each supervisorial district by the supervisor from that district. Members shall be residents of the district from which they are appointed. Members of the commission shall serve without compensation except for reasonable travel expenses.
E. If any supervisorial district is at least ninety per cent Indian reservation and at least ninety per cent of the district is not subject to county zoning regulations, the supervisor from the district may appoint some or all of the members to the commission from any supervisorial district in the county if there is no appointee who is willing to serve within the supervisorial district. These appointments are subject to the limitations on residency required by subsections C and D of this section. Members appointed to the commission pursuant to this subsection require the approval of the board.
F. In counties with a population of less than one hundred seventy-nine thousand persons, an alternate member may be appointed by the appointing supervisor for each commission member appointed pursuant to subsections C, D and E of this section to serve in the absence of that member. Alternate members may be appointed from any supervisorial district in the county. During any meeting of the commission, if the regularly appointed member becomes available, the alternate member shall conclude any action on the agenda item under consideration and the regularly appointed member shall be seated for the remaining items.
G. The terms of the members of the commissions shall be for four years except for those initially appointed. Of those members initially appointed pursuant to subsection C of this section, five members shall be appointed to a two year term and four members shall be appointed to a four year term. Of those members initially appointed pursuant to subsection D of this section, five members shall be appointed to a two year term and five members shall be appointed to a four year term. Thereafter, each term shall be four years. If a vacancy occurs otherwise than by expiration of term, the vacancy shall be filled by appointment for the unexpired portion of the term. The board may remove members of the commission for cause.
H. On a conversion from three to five supervisorial districts pursuant to section 11-212, the board of supervisors, on expiration of the terms of members of the commission serving on the date of the conversion, shall make those appointments to fill the vacancies to conform to subsection D of this section as soon as is practicable.
I. The county assessor, county engineer, county health officer and county attorney shall serve in an advisory capacity to the commission and to the boards of adjustment.
J. The commission shall:
Elect a chairperson from among its members for a term of one year and those other officers as it determines.
By resolution fix the time and place within the district of regular meetings, hold at least one regular meeting each month when there is new official business to transact and hold additional meetings as the chairperson or a majority of the commission deems necessary.
Adopt rules for the transaction of business and keep a record of its resolutions, transactions, findings and determinations, which record shall be a public record and be open to public inspection.
Transmit all of its recommendations, decisions, findings, reports and official actions, regardless of vote, to the board of supervisors.
K. A majority of the commission constitutes a quorum for the transaction of business and a majority vote of the quorum is required for any official action.
