Bayless v. Cottonwood
Annotate this Case
Download PDF
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DENNIS P. BAYLESS, P.C., Plaintiff/Appellee, v. CITY OF COTTONWOOD; COTTONWOOD CITY COUNCIL, DIANE JOENS, COTTONWOOD CITY MAYOR; KAREN PFEIFER, COTTONWOOD CITY VICE MAYOR; TIM ELINSKI, COTTONWOOD CITY COUNCIL PERSON; DUANE KIRBY, COTTONWOOD CITY COUNCIL PERSON; LINDA NORMAN, COTTONWOOD CITY COUNCIL PERSON, Defendants/Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 02/11/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0036 DEPARTMENT B MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Yavapai County Cause No. V-1300-CV-0820080155 The Honorable Michael R. Bluff, Judge VACATED Law Office of Stephen H. Schwartz, Esq. By Stephen H. Schwartz Attorneys for Plaintiff/Appellee Murphy, Schmitt, Hathaway & Wilson, P.L.L.C. By Milton W. Hathaway, Jr. Andrew J. Becke Attorneys for Defendants/Appellants D O W N I E, Judge Sedona Prescott ¶1 The City of Cottonwood ( City ), Cottonwood City Council ( Council ), and members of the Council (collectively, Defendants ) appeal the superior court s order granting Dennis P. Bayless, P.C. ( Plaintiff ) mandamus relief. Defendants contend the court erred in ruling the Cottonwood Municipal Code ( CMC or Code ) requires the Council to follow a public bid procedure before contracting with a law firm to serve as City Attorney and City Prosecutor. For the reasons that follow, we agree with Defendants and therefore vacate the superior court s judgment.1 BACKGROUND ¶2 From the mid-1980s until 2005, the law firm of Mangum, Wall, Stoops and Warden, PLLC ( MWSW ) served as the Cottonwood City Attorney. handled the Plaintiff City s contracted Prosecutor. at least some prosecutions. with the of this Beginning City to time, MWSW also August 1, 2000, the City serve as In April 2006, the City hired its first in-house City Attorney. Attorney For Effective January 2, 2008, the in-house City resigned.2 The City 1 subsequently solicited a We have considered the briefing relating to Plaintiff s post-argument motion to strike. We deny the motion, as well as Defendants request for sanctions associated with the motion to strike. However, in deciding this case, we have only considered matters of record. 2 The City intended for the City Attorney to eventually take over the responsibilities of the City Prosecutor. Apparently, 2 proposal/cost estimate from MWSW to resume serving as City Attorneys and Prosecutors. ¶3 At a special meeting on January 8, 2008, the Council voted to contract out to MWSW all of the City s legal work, including prosecution services, as an interim measure until a replacement in-house City Attorney was hired. The City terminated Plaintiff s City Prosecutor contract. ¶4 On June 16, 2008, Plaintiff commenced this action in superior court, alleging the contract with MWSW violated Code section 2.88.020, entitled Procedure professional services ( § 2.88.020 ). 2.88.020 (2009).3 Plaintiff claimed for contracting with CMC title 2, ch. 2.88, § the contract was not advertised, and no bids were solicited other than from MWSW. Plaintiff sought, inter alia, a writ of mandamus directing the Council to void the agreement with MWSW and re-bid the contract in conformity with § 2.88.020.4 ¶5 In lieu of an evidentiary hearing, the parties agreed to submit the case for a decision on the pleadings and seventeen the City Attorney resigned before that transfer of responsibilities could occur. Also, during the time the City had an in-house City Attorney, MWSW and Plaintiff continued to provide legal services to the City. 3 Unless otherwise stated, all references to the CMC are to the 2009 version. 4 Plaintiff also raised breach of contract and interference with contract claims, neither of which is at issue in this appeal. Plaintiff originally named MWSW as a defendant, but MWSW was later dismissed by stipulation. 3 stipulated exhibits. The superior court accepted jurisdiction and found: The City is required by the plain language of its own code to follow the provisions set forth in Section 2.88.020 in contracting for outside legal services. court granted mandamus relief. Accordingly, the Defendants unsuccessfully moved for reconsideration. This timely appeal followed. jurisdiction to pursuant Arizona Revised Statute We have ( A.R.S. ) section 12-2101(B) (2003). DISCUSSION ¶6 Defendants argue the superior court erred in concluding the Council was required to comply with § 2.88.020 before contracting with MWSW. ¶7 We agree.5 Mandamus is only available to compel a public officer to perform a duty over which he or she has no discretion. Sears v. Hull, 192 Ariz. 65, 68, ¶ 11, 961 P.2d 1013, 1016 (1998). See also A.R.S. § 12-2021 (2003). In the absence of some controlling . . . legislative requirement, competitive bidding is not an essential prerequisite to the validity of contracts . . . by and with public bodies. Hertz Drive-Ur-Self Sys., Inc. v. Tucson Airport Auth., 81 Ariz. 80, 84, 299 P.2d 1071, 1074 (1956) (internal quotes and citation 5 omitted). Whether Because we find § 2.88.020 is inapplicable, we do not address whether the superior court employed the correct standard for reviewing the Council s decision, nor do we decide whether paragraph H of § 2.88.020 allowed the Council to deviate from public bid procedures. 4 competitive bidding is required depends construction of the applicable law. on the proper Achen-Gardner, Inc. v. Superior Court In and For County of Maricopa (City of Chandler), 173 Ariz. 48, 51, 839 P.2d 1093, 1096 (1992) (citation omitted). ¶8 The Council clearly has the authority to contract for legal services in lieu of hiring a City Attorney. 2, ch. 2.24, § 2.24.010. CMC title The disputed issue is what process, if any, the Council must follow in contracting for legal services. ¶9 Section 2.88.020(A) outlines the process for selecting and negotiating fees for professional services. services include those provided by attorneys. 2.88, § 2.88.010. The Code provides that Professional CMC title 2, ch. a department or office seeking to engage a professional service provider must follow the procedures in § 2.88.020 (B)(1), (C), (E), (F). The Code does not define the terms department and office, and it does not specifically mention the Council vis-à -vis the bid selection procedures in § 2.88.010. ¶10 We review de novo the superior court s interpretation of the Code. See City of Tucson v. State, 191 Ariz. 436, 437, 957 P.2d 341, 342 (App. 1997). We interpret the Code using rules of statutory construction. See Thomas and King, Inc. v. City of Phoenix, 208 Ariz. 203, 206, ¶ 9, 92 P.3d 429, 432 (App. 2004) (courts interpret ordinances using the rules of statutory construction); Douglass v. Gendron, 199 Ariz. 593, 596, ¶ 10, 20 5 P.3d 1174, 1177 (App. 2001) (municipal ordinances are construed in the same manner as state statutes). ¶11 The primary goal of statutory interpretation find and give effect to the promulgators intent. is to State v. Ross, 214 Ariz. 280, 283, ¶ 22, 151 P.3d 1261, 1264 (App. 2007). We look to the Code s plain language as the best indicator of that intent. See Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7, 111 P.3d 1027, 1030 (App. 2005). When the language is clear and unambiguous, we give effect to it and do not employ other tools of statutory interpretation. Id. When a statute is ambiguous or unclear, however, we attempt to determine legislative intent by interpreting the statutory scheme as a whole and consider the statute s context, subject matter, historical background, effects and consequences, and spirit and purpose. Ross, 214 Ariz. at 283, ¶ 22, 151 P.3d at 1264. ¶12 Although council of the the Code city of department or office. We therefore give understood meanings. those defines Council Cottonwood ), it ( the does common not define CMC title 1, ch. 1.04, § 1.04.020. terms their usual and commonly Washburn v. Pima County, 206 Ariz. 571, 578, ¶ 18, 81 P.3d 1030, 1037 (App. 2003) ( [W]e attribute no specialized meaning to statutory language unless the legislature has clearly conveyed its intent that we do so. ); Kilpatrick v. Superior Court (Rozar) 105 Ariz. 6 413, 421, 466 P.2d 18, 26 (1970) ( Words are to be given their usual and commonly understood meaning unless it is plain or clear that a different meaning was intended. ). ¶13 We cannot conclude the commonly understood meaning of department and office includes the Council, which is the City s legislative body that exercises the corporate powers of the municipality, including the appointment, supervision, and removal of (2008); CMC 2.12.050. city ch. officers. 2.08, § See A.R.S. 2.08.020; §§ ch. 9-239 (2008), 2.12, §§ 2.12.020, The relevant dictionary definitions of department and office do not compel a contrary conclusion.6 6 -274 See State v. Department is defined, in relevant part, as: 1. A distinct, usually specialized division of a large organization, especially: (a) A principal administrative division of a government: the department of public works. . . . . 2. . . . One of the principal executive divisions of the federal government of the United States, headed by a cabinet officer. Dictionary.com, The American Heritage® Dictionary of the English Language, Fourth Edition (2004), http://dictionary.reference.com/browse/department (last visited Feb. 4, 2010). Office is defined, in relevant part, as: [1.]c. A subdivision of a governmental department: the U.S. Patent Office. [1.]d. A major executive division of a 7 Mahaney, 193 Ariz. 566, 568, ¶ 12, 975 P.2d 156, 158 (App. 1999) ( In determining the ordinary meaning of a word, we may refer to an established and widely used dictionary. ) (citation omitted). ¶14 We read department and office, as used in § 2.88.020, to refer to such typical municipal bodies as the fire and police departments and the office of the city manager. Code itself recognizes such categorization. The See CMC ch. 2.12, § 2.12.010 (creating offices of city manager/marshal, city clerk, and city magistrate); ch. 2.32, § 2.32.010 (creating office of finance director); ch. 2.44, § 2.44.010 (creating police department); ch. 2.48, § 2.48.010 (creating fire department); ch. 2.52, § 2.52.050 (creating office of library director); ch. 2.76, § 2.76.010 (creating office of director of civil defense); ch. 2.96, § 2.96.010 (creating office of administrative hearing officer). ¶15 Nonetheless, Plaintiff points to, and the superior court apparently relied on, Code § 2.88.020(G)(3) as indicative government: the British Home Office. . . . . 3. A position of authority, duty, or trust given to a person, as in a government or corporation: the office of vice president. Id. at http://dictionary.reference.com/browse/office (last visited Feb. 4, 2010). 8 of an intent that the Council be bound by public bid procedures when procuring professional services. G. That section states: Project Fees . . . . 3. Complex or large projects having an estimated fee of over seventy-five thousand dollars shall be approved by the city council through the process outlined in Section 2.88.020(F). CMC ch. 2.88, § 2.88.020(G)(3). When read in isolation, subsection (G)(3) s reference to subsection (F)- which in turn expressly refers to department[s] or office[s] as the entities required to follow specified procurement procedures for complex or large Council projects - could must follow the outside legal counsel. create ambiguity Code s bid about procedures whether when the hiring Reading the applicable Code provisions as a whole, however, § 2.88.020(G)(3) evidences an intent that the Council not participate in procurement procedures such as notice, review, selection, and fee negotiations that apply to City departments or offices seeking professional services; rather, the Council s approval is required after a department or office has completed the public bid procedures and reached an agreement with a provider for a fee that exceeds $75,000. ¶16 initially Turning to the relevant provisions of § 2.88.020, we note that departments 9 or offices may hire professionals on either an annual no-fee retainer basis, or on a project basis that entails payment of a fee. (E), (F). different CMC § 2.88.020(C), With respect to the latter, the Code provides two procedures for departments depending on the size of the project. and offices to follow, CMC § 2.88.020(E), (F). Complex or large projects require a more detailed process ( § F Procedure ) than small or medium projects ( § E Procedure ).7 Id. Regardless contemplates of that, the size once an of the agreement project, is reached the Code with a professional regarding the scope of work and the fee, further city processing and approval (i.e. consummat[ing] . . . a contract ) is required prior to beginning work. CMC § 2.88.020(E)(4), (5), (F)(8). ¶17 (1) These Code provisions raise the following questions: What determines the size of a project that, in dictates whether a § E Procedure or § F Procedure applies? (2) Who is responsible for final approval? turn, And, The answers to these questions are found in § 2.88.020(G), which states: G. Project Fees 1. Projects having an estimated fee of under five thousand dollars may be approved by the city manager through the specific project negotiation process outlined in Section 288.020 [sic] (E). 7 In any case, the more detailed procedure for complex or large projects may be used for small and medium projects at the option of the department or office. CMC § 2.88.020(E)(5). 10 2. Projects having an estimated fee of over five thousand dollars and less than seventyfive thousand dollars shall be approved by the city council through the specific project negotiation process outlined in Section 2.88.020(E). 3. Complex or large projects having an estimated fee of over seventy-five thousand dollars shall be approved by the city council through the process outlined in Section 2.88.020(F). (Emphasis added.) ¶18 To the extent the superior court found that the emphasized language in § 2.88.020(G)(3) required the Council to follow the § F Procedure before awarding the legal services contract to MWSW, we disagree.8 To construe that language in such a manner would lead to the nonsensical result that the Counsel must approve fee agreements that already negotiated to its satisfaction. (G)(3). the Council itself See § 2.88.020(F)(6), We do not construe statutes in a manner that leads to absurd results. In re Estate of Zaritsky, 198 Ariz. 599, 603, ¶ 11, 12 P.3d 1203, 1207 (App. 2000). ¶19 Instead, 2.88.020(G) emphasized contain in because subsections substantially subsection (3), we 8 the (1) same interpret and (2) language § as of § that 2.88.020(G) as Because the fee agreement between the City and MWSW exceeds $75,000, it is not disputed that, if the contract is subject to a public bid requirement, § F provides the relevant procedure. 11 serving two necessary purposes. First, it establishes the fee amounts that determine whether the § E Procedure or the § F Procedure must be followed for a particular project. Second, § 2.88.020(G) delineates the responsibility for final approval of projects terms that have been agreed on by a department or office and a service provider; namely, and sensibly, that responsibility lies with the city manager for smaller projects and the Council 2.88.020(G)(3) for does projects not, as exceeding Plaintiff $5000. contends, Thus, require § the Council to participate in the § F Procedure in the same manner as a department or office for purposes of notice, selection, and fee negotiations when contracting with service providers.9 ¶20 Other factors support our interpretation. Code s drafters manager, and respective contracting 2.88.020. used city the terms council responsibilities with department, when in professional the office, referencing procurement service First, the those city bodies process providers. CMC for § Had the drafters intended the Council to follow the same bid procedures as departments and offices, they presumably would have mentioned the Council in § 2.88.020(E) and (F). See HCZ Constr., Inc. v. First Franklin Fin. Corp., 199 Ariz. 361, 9 Additionally, § 2.88.020(G) specifically applies to projects. Although we need not reach this issue, it is questionable whether MWSW s provision of general counsel and prosecutor services qualifies as a project. 12 365, ¶ 15, 18 P.3d 155, 159 (App. 2001) (use of different words in a statute demonstrates an intent to give each word its separate and ordinary meaning). ¶21 Second, if references to department or office in § 2.88.020 are deemed to include the Council, the city manager would be required to concur with the Council s decision to deviate from the § E or § F Procedures in those instances when the Council determines negotiating on a sole-source basis with a specific person is clearly advantageous to the City. 2.88.020(H). See CMC § This would be an absurd result given the city manager s subordinate status vis-à -vis the Council.10 ¶22 Finally, Code § 2.24.010 states, without reference to the public bid procedures in § 2.88.020: The city, in lieu of appointing a city attorney, may contract for its required legal services with an attorney or a firm licensed to practice law in the state of Arizona. Had the Code s drafters intended the Council to abide by the public bid procedures for engaging legal service providers, they could have manifested this intent by referring to § 2.88.020 in § 2.24.010. 10 We will not read into See CMC ch. 2.16, §§ 2.16.010, 2.16.080 (city manager appointed by the Council and serves under the direction and control of the Council). Further, the Council is required to review all contracts negotiated pursuant to § 2.88.020(H) prior to final award. CMC § 2.88.020(I). This requirement would be nonsensical if the Council, as a department or office, negotiated the contract at issue pursuant to § 2.88.020(H). 13 the Code such a requirement. See Hertz, 81 Ariz. at 84-85, 299 P.2d at 1074 ( It is reasonable that a statute requiring bids is restrictive and should not be extended beyond the language used in it. ) (citation omitted). ¶23 In sum, the Code provisions mandating public bid procedures before contracting for professional services did not require the Council to follow the § F Procedure before engaging MWSW. Therefore, the superior court erred in granting relief to Plaintiff. CONCLUSION ¶24 For the foregoing reasons, we vacate the court s order granting mandamus relief to Plaintiff. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ SHELDON W. WEISBERG, Judge 14 superior
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
