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Ally Miller may have broken law in ordering staff to use personal email 'to be more secretive'

Supervisor sticking with false claims about public records, faces possible criminal probe

Two months after a set of public records was requested, Pima County Supervisor Ally Miller has doubled and tripled down on demonstrably false claims that she does not use her personal email for public business. Denying their existence, Miller has stonewalled turning over documents — putting herself, her staff and county taxpayers at risk of a lawsuit.

Documents just disclosed show that she instructed staffers to use private emails and encrypted drives to avoid "prying eyes." Those papers show a longstanding practice of handling files that may lead to a criminal probe against her for evading state public records laws. County Administrator Chuck Huckelberry confirmed that he turned over copies of the emails to the Pima County Attorney's Office. He declined to comment further.

Despite widespread knowledge and documented evidence that Miller commonly uses her personal email to direct the government employees in her office, the District 1 Republican has repeatedly claimed that she does not. In written responses to official inquiries and during meetings of the Board of Supervisors, Miller has denied she uses her personal email to carry out her elected duties. She has instead dodged releasing records requested by TucsonSentinel.com, the Arizona Daily Star and other news outlets.

Officials at the County Attorney's Office did not respond to requests for comment about the documents turned over to them.

Miller did not respond to a request for comment on this story.

'We have to be more secretive'

A former staffer has said that Miller is lying about how she handles government files and communications. Documents show that many of the supervisor's claims are not supported by the facts.

In documents provided by another former staffer, Miller instructed her employees to use private email addresses and "encrypted jump drives" rather than saving files on county computers. One of the first staffers she hired on taking office after the 2012 election said she was "paranoid about stuff."

"We have to be more secretive," Miller wrote in 2013.

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Miller has attempted to use the records issue to fundraise for her reelection bid, saying in June 26 email that "the board majority and Chuck Huckelberry have enlisted the corrupt media in a full out smear campaign against me" and asking for donations "if you believe in me and want more transparency and accountability for Pima County."

Miller's attempts to conceal her activities date back to her first year in office.

Emails disclosed by a former employee, who shared the documents while requesting that they not be named, show Miller suspected other officials of spying on her. The emails provided Thursday show Miller's evident intent to hide the activities of her office.

"I am positive they are reading our emails," Miller wrote in July 2013. She also said that "they could very easily (and legally) use a keystroke recorder to get the password" to email accounts. "They can use that to record anything you type and see what the password is."

"I believe IT is watching us closely so we need to do this," she wrote the month before, saying that she password-protected a draft of a statement "so you can send in to office and edit without prying eyes seeing it before we send it out."

In December 2013, Miller sent emails instructing staffers to use "encrypted jump drives" to save files.

The month before, she told a staffer that Supervisor Ray Carroll "is stealing our fundraising idea."

"He is the scum of the earth," she said.

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"We also can't save things on cmputer at work (sic) or they will be ahead of us," she wrote. "We have to be more secretive."

Miller said in that email that she would handle her Constant Contact newsletter list outside the office.

"But I will need the updates emailed to me... preferably from a private email address," she told her staffer. "We have to figure this out. They are hearing our every word down there."

Thursday, Huckelberry said that he had not used keyloggers nor bugged Miller's office, and said that he has never asked the county IT Department to provide copies of emails from any supervisor.

Beyond those records Miller has refused to turn over, hundreds of others she has ham-handedly and improperly redacted before releasing, including using a black marker over her own email address and those of her staffers. She even blacked out the name of a Star journalist who emailed to introduce himself as the new county reporter. Miller covered up evidence that she in fact does use her personal email for public business, redacting her address and those of staffers before turning over emails.

Other copies of those documents, provided directly to TucsonSentinel.com in electronic form after the Board ordered their release, clearly show that Miller and several of her current staffers have continued the practice of using their personal emails to discuss county business.

In fact, an email from May 17, the day before records were first requested and the same day we began investigating DesJarlais' involvement in the so-called "Arizona Daily Herald," evidences that Miller, DesJarlais, and staffers JoAnn DiFilippo and Sherry Potter used their personal emails to craft a press release to post on Miller's taxpayer-funded website. That email was one that Miller attempted to cover up, blacking out all of the personal addresses.

A month later, after the other supervisors voted to order county staffers to directly release documents to the press, TucsonSentinel.com obtained a copy of that email thread, showing that nearly all of Miller's staffers were using their personal addresses to carry out their public duties.

Former Miller staffers have said that she almost exclusively used her personal email to carry out government business, including directing her employees.

Jeannie Davis, who was Miller's chief of staff until she was fired just after Christmas, said that Miller gave her instructions and "regularly communicated via her personal email and her personal Facebook messenger regarding county business." Davis provided copies of several documents, and said Miller also used text messages for county business.

"Often, Supervisor Miller didn't want the county to know what her plans were so she used personal email and her personal devices to keep (them) hidden," Davis said. "It's disappointing she would lie about using her personal email address for county business and in the process put her current and former staff in this unfortunate position."

Mark Brazier, a Miller campaign advisor who was among her initial staffers until he was fired after less than two months in her office in 2013, said the supervisor "was kind of paranoid about stuff."

"She made us close the door to the office, because she was so paranoid that someone would hear something," he said.

Brazier said he was ready to quit after just weeks in his post because he was concerned about how Miller ran her office.

"I thought we were going to look at data and make determinations based on facts and figures," he said Thursday. "Instead, she was worried about which group was 'against her.'"

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Brazier and Davis are among a long list of staffers who have quit or been fired from Miller's office, including Joe Cuffari, Josh Brown, Jennifer Coyle, Sergio Mendez, Lynne St. Angelo, Naomi Oku-Alonzo and Roxanne Ziegler, as well as DesJarlais, who quit as TucsonSentinel.com and other outlets looked into his masquerading as a reporter, seemingly in support of Miller's campaign.

Even the "confession" email in which DesJarlais finally admitted to many of the lies about the "Arizona Daily Herald" that sparked the investigation was sent to Miller's personal address. She blacked that out when she provided paper copies of the email to reporters.

Despite being repeatedly informed that there was ample evidence, Miller has continued to refuse to disclose the remaining requested records. Earlier, she spent weeks illegally demanding thousands of dollars in fees to provide access to documents, even as attorneys for the county repeatedly told her there was no justification for doing so. It wasn't until the issue was placed on the agenda of a Board of Supervisors meeting that Miller released any documents at all, turning over batches of heavily redacted emails from government email accounts.

On June 20, more than a month after we first asked for documents that might shed light on the connections between her office and the bizarre sham news website surreptitiously launched by her then-aide Timothy DesJarlais, Miller said "I don't conduct county business on my personal email account" in an email to Robin Brigode, the clerk of the Board, as she responded to a records request.

That was Miller's first acknowledgment of the requests for documents that are kept in her private email accounts, as well as those of her employees. Those staffers also, with some prodding from Brigode, made statements that they do not use their personal emails for government work.

The next day, responding to questions from other supervisors during a June 21 meeting, Miller has said, "any records related to county business whatsoever will be provided. Anything I have on my personal devices will be turned over."

Miller equivocated about holding her staff accountable. "I can't speak for other people in my office; I can't control their personal devices," she said.

Illegal to mishandle public records

Under Arizona law, public record must be promptly released upon request. And all documents connected to duties of government employees are public records, even if they came from or were sent to a personal email or Facebook account. It is a class 4 felony for an elected official who "without lawful authority destroys, mutilates, defaces, alters, falsifies, removes or secretes" a public record. For government employees who do so, it is a class 6 felony.

It's not illegal in Arizona to use private communications for public business. It is a clear violation of the law to not release those public records on request. It is also against the law for a record to be "destroyed or improperly maintained," with "potential criminal sanctions," Chief Civil Deputy Pima County Attorney Thomas Weaver told the supervisors last month.

The Board voted 4-0 during that meeting — with Miller absent after she quickly left as she was queried about the documents — for county staff to "immediately" respond to the unfulfilled requests for records.

The supervisors also voted that that any individual not complying with the expedited full release of public documents would be "acting in their own private capacity" — which would mean that the deep pockets of the county may not back their legal defense.

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Despite her statement during that June 21 meeting, Miller did not comply with the law and release the records.

In fact, she again claimed that she does not use her personal email for her official duties.

In a June 30 response to a followup records request sent three days prior, one of her staffers wrote that "Supervisor Miller and her staff also informed you as part of those previous responses that she and her staff do not have county-owned phones, that they do not conduct county business using personal devices and that no county records are maintained on personal devices, whether in email or text form. Supervisor Miller further informed you that all county records are maintained on county servers and have been provided."

The Board of Supervisors again took up the records issue during a meeting, addressing it on July 5.

Miller, vacationing in Idaho, phoned in to the meeting, taking part in several votes. But when the agenda item on the records requests came up, she was not on the phone, with her staff saying there was a "power outage."

When Carroll, a Republican with whom Miller has frequently clashed, said he was concerned that the county was "incurring liability for taxpayers so long as this is delayed" but that they supervisors should "hear the item while she's here in the room" and should perhaps delay discussion to another meeting, Miller called in again.

"We have responded to all public records requests effective as of June 30," Miller claimed.

Carroll was "presenting a biased point of view" and the discussion was part of a "coordinated attempt to influence the outcome of an election," she said. "I will state clearly and unequivocally that we have fully complied with all public records requests."

Miller later posted a Youtube video of me and Star reporter Joe Ferguson speaking briefly with Carroll and Supervisor Sharon Bronson just before the meeting, as well as claims of a "coordinated smear campaign" involving supervisors and the media. In fact, Ferguson and I were asking the supervisors to not again call on us to answer questions about the ongoing issues with records, as they had done during the previous meeting.

Despite that request (which wasn't made to each member of the Board), Supervisor Ramon Valadez asked for input from the public. Ferguson and I demurred. Supervisor Richard Elias then specifically asked for our assessment of whether Miller had complied. We each stated that we had reasons to believe that she had not.

"We are facing some serious problems here," Elias said. "The truth is, is that our taxpayers are on the hook for this, and Pima County's reputation is on the hook for this."

"As is my reputation, Supervisor Elias," Miller interjected.

"I understand that, Ally," he responded, "but there are larger considerations, frankly."

At that point, the documents showing Miller's intent to use private emails and encrypted drives to work in secret had not yet been provided by her former staffer.

Nonetheless, the other supervisors and the Board's legal advisor characterized the records issue as serious.

"At this point, we're at an impasse — it's really in the hands of the requesters," board attorney Thomas Weaver told the supervisors. "There's a statute which allows them to file a legal action ... there are certain sanctions that can be imposed," including attorney's fees and damages if records have been improperly withheld, he told the Board.

"That's a pretty strong statement from counsel in the midst of a board meeting," Elias said.

"I'm concerned about financial and legal liability," said Valadez, who crafted the motion at the previous meeting to legally distance the county from anyone not complying with the records requests. He asked Weaver to draft a memo for the Board on the issue. Carroll said he would again put the issue on the agenda, with the next Board meeting scheduled for Aug. 2.

The meeting degenerated into Miller and other supervisors talking over each other.

"I think we are all out of order on this, at this point," Bronson said, drawing the discussion to a close.

Eight weeks after documents were first requested, Miller and her staffers have yet to turn over public records from their private emails, as well as providing no public data from her personal Facebook chat sessions, nor text messages.

Losing a lawsuit filed by the press could leave Miller, and each of her staffers, on the hook for attorney's fees and court costs, along with damages of up to $5,000 each.

If she finds herself the target of a criminal investigation for evading records laws, Miller could face steeper penalties: the presumptive sentence for a class 4 felony is 2.5 years in prison.

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photo illustration by Dylan Smith/TucsonSentinel.com

Miller and a public record which she blacked out to hide her personal email address and those of her staff.

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Arizona public records laws

ARS 39-121. Inspection of public records

Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.

ARS 38-421. Stealing, destroying, altering or secreting public record; classification

A. An officer having custody of any record, map or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his hands for any purpose, who steals, or knowingly and without lawful authority destroys, mutilates, defaces, alters, falsifies, removes or secretes the whole or any part thereof, or who permits any other person so to do, is guilty of a class 4 felony. B. A person not an officer who is guilty of the conduct specified in subsection A of this section is guilty of a class 6 felony.


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