Fight continues over documents in Don Shooter sexual-harassment investigation
Dustin Gardiner
Former state lawmaker Don Shooter's quest for redemption has hit a snag as the Arizona House refused to give him documents from the sexual-harassment investigation that led to his ouster.
The House of Representatives has rejected a series of subpoenas Shooter issued last month in response to a lawsuit brought against him by a female accuser.
Shooter argued the documents will show House Speaker J.D. Mesnard covered up another lawmaker's misbehavior and conspired to oust Shooter because of Shooter's concerns about no-bid state contracts.
"I had to be out of there at any cost because I was willing to expose millions of dollars of corrupt contracts," Shooter told The Arizona Republic.
Mesnard, R-Chandler, declined to comment on Tuesday. He has defended the findings of the investigation, which resulted in Shooter's historic removal.
House members voted 56-3 to expel Shooter in February after an investigation, led by an outside law firm that compiled a graphic public report, found "credible evidence" that he harassed at least seven women.
Gregory Falls, an attorney for the House, rejected the subpoenas in a July 27 letter to Shooter's attorney. Falls wrote that Shooter's aim is simply to harass state officials as he tries to repair his own reputation.
"In the end, the subpoenas are so overbroad and intrusive they could have but one purpose: to unreasonably burden and harass investigative counsel and our client," Falls wrote.
Falls argued the investigative records Shooter subpoenaed are shielded by attorney-client privilege, a legal right that protects communications between a client and attorney from disclosure in most cases.
Shooter, a Republican from Yuma, has sought to challenge the investigation's findings as he attempts a political comeback, running for state Senate in the Aug. 28 Republican primary.
Mesnard has already denied requests from Republican House members and The Arizona Republic for documents that weren't released in the public report. He has said he's protecting the privacy of confidential witnesses.
Shooter fights accuser in court
The subpoenas were issued as part of a legal conflict between Shooter, the first Arizona House member expelled from the body since 1948, and Rep. Michelle Ugenti-Rita, R-Scottsdale.
In June, Ugenti-Rita filed a lawsuit against Shooter claiming comments he made damaged her reputation. She was the first woman who publicly accused him of inappropriate behavior last year.
Shooter filed a countersuit in July, claiming defamation. He is also preparing to file a third lawsuit against the state, arguing the process used to remove him was rigged.
He has welcomed Ugenti-Rita's lawsuit, saying it will help unearth records key to exposing how state officials conspired to oust him because he questioned a series of technology contracts, collectively worth millions, that were awarded with no bids.
The subpoenas ask for, among other records, all "notes, tapes, memos, and all other writings and electronically gathered information" from the investigation.
Shooter's attorneys contend that the records must be made public because the House waived its right to attorney-client privilege, among other protections, by making the investigation report public.
ALSO:Women slam Shooter's campaign for Legislature after harassment expulsion
"We believe that the decision to release the report means that you have to release the report," said attorney Tom Moring. "We think the objections are not sound."
Ugenti-Rita accused Shooter of a pattern of sexually inappropriate behavior, including remarks about her breasts. In one instance, she told investigators, he said, "I wish I was that baby" when she left a meeting to breastfeed her infant.
In another instance, she alleged, he showed up at her hotel room door carrying a six-pack of beer during a conference attended by lawmakers.
Judge shields Ugenti-Rita photos
The House's investigation also looked at the behavior of Ugenti-Rita. But the report found her behavior, including a reputation for sexually-charged jokes, did not violate its policy.
However, the report did find evidence that Ugenti-Rita's then-fiancé on three occasions sent unsolicited and sexually-explicit messages to a House staff member. The report concluded that Ugenti-Rita did not know about the messages between her then-fiancé Brian Townsend, a longtime Capitol insider, and the staff member.
But Shooter alleges the House is withholding investigative records to "cover up" inappropriate behavior involving Ugenti-Rita and Townsend.
In July, Maricopa County Superior Court Judge Bruce Cohen granted a protective order prohibiting the state from releasing personal photographs of Ugenti-Rita that may be part of its investigative file.
Her attorney Daniel Massey said during the court hearing that the file contains nude photos of Ugenti-Rita. Massey didn't respond to a request for comment Monday.
"Mrs. Ugenti’s former fiancé had passed along some naked photos and those somehow, and I don’t know how it would have happened," Massey told Cohen, "but somehow made it into the investigator’s file."
"There is no purpose for those being disclosed to anyone, including defense counsel here."
Shooter's attorney didn't object to the order, saying he would have voluntarily agreed to not publicly release the photos.
Investigators' notes not released
While Shooter has focused on records related to Ugenti-Rita and state contracts, the House hasn't released a broad swath of other documents, including investigators' notes.
The House report cost taxpayers approximately $213,800, according to legal invoices obtained by The Republic through a public records request.
The Republic requested documents related to the investigation in December, before the report's January release. The House denied that request. At the time, Mesnard said he was protecting the privacy of witnesses, some of whom, he said, had requested confidentiality.
The Republic pressed the matter and the House released 340 pages of materials in March.
But those records still did not include notes from investigators' interviews of about 40 witnesses, including those who did not speak on the condition of anonymity.
In his July letter to Shooter's attorney, Falls said the unreleased investigative file is protected by the "attorney work product doctrine," a legal rule that shields attorneys from having to disclose documents prepared in anticipation of litigation.
Falls wrote that documents created as part of the investigation "were prepared with the anticipation that litigation was probable, if not highly likely."
Attorneys representing Shooter and the House are expected to discuss his subpoenas this week. If they cannot reach an agreement — which appears likely — a judge could decide which records must be turned over.
Republic reporter Richard Ruelas contributed to this article.
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