Bob Shelstrom, a candidate for the Fountain Hills Sanitary District Board of Directors, has been warned by the District’s legal counsel that comments Shelstrom made in letters to District Manager Dana Trompke may expose him to potential legal liability for defamation and extortion.
In a letter to Trompke in June Shelstrom challenged the process the district used to award the bid for the recharge well-restroom project in Fountain Park. He expressed his concern that he believed the “construction manager at risk” (CMAR) process was illegal, adding that by his reading of state statute this is a violation of the law.
“It appears that the district is in violation of…statute by hiring Hunter Contracting and its subcontractors NOT [his emphasis] by sealed bid, but by selection through only Statements of Qualifications where cost could not be considered in selection,” Shelstrom stated in the letter.
“Please explain why the district is not in violation of ARS 48-2018 by using the CMAR process instead of the apparently required sealed bid/lowest responsible bidder process in order to avoid my having to refer this to the Attorney General’s office, which I will do if I have no response by June 18.”
In his response to this issue the district’s legal counsel told Shelstrom his review of Arizona statutes “was incomplete and your legal conclusion wrong.
“Your particular issue is addressed in Title 48, Chapter 1, Article 12, ‘Procurement of Design Services and Construction Services…’” Sullivan said. “These statutes authorize all Title 48 special taxing districts, including sanitary district, to use CMAR for the procurement of design services and construction.
“The district appreciates your interest in its operations. However, please use caution not to misrepresent facts, disparage district employees or to use incomplete legal analysis to make inaccurate statements regarding the district’s operations. Such activity on your part, if negligent, reckless or willful, could be actionable.”
In response to the allegation that this letter may have constituted defamation or extortion Shelstrom said, “This was no threat to the district manager’s job at all. If the act was legal, there was no problem. If they could not validate its legality, that would be the district attorney’s responsibility.”
Shelstrom also told The Times he was satisfied with the explanation he received from Sullivan, and said he thanked him for the clarification.
In a second letter to Trompke sent at about the same time, Shelstrom challenged information attributed to Trompke in an article in The Times published on March 20, 2019.
Trompke was explaining to this reporter some of the reasoning behind the district and board’s decision to relocate below-ground electrical and control equipment for two recharge wells in Fountain Park. She described safety issues with the below-ground confined space including the potential for the collection of noxious gases. As a safety precaution employees use a testing device to check the air quality in the confined space before entering.
Shelstrom has consistently stated his opposition to the project to relocate the well equipment above ground to be housed in buildings that will also serve as public restrooms in the park.
“I am providing you with this letter as a professional courtesy in an attempt to avoid making a professional complaint concerning your deceptive public statements regarding the presence of ‘methane, hydrogen sulfide and other toxic fumes’ in the ASR Vault Removement and Replacement project, and falsely claiming…‘confined space regulations and dangers of noxious fumes make the renovation of the well vaults necessary,’” read the letter.
Shelstrom alleges in the letter that these statements are in violation of the National Society of Professional Engineers (NPE) code of ethics.
“I understand that the impact of a complaint on this issue may damage your professional reputation, especially if disciplinary action is not taken by the review board and other things that may be found during the committee investigation,” Shelstrom stated in the letter. “I assure you that damaging your career for this situation is not my intent, but properly informing the public of the inaccurate and misleading statements you made in The Fountain Hills Times is necessary to the public interest.
“If a sufficient and complete correction of statements you made and an apology by you are published in The Fountain Hills Times before July 8, 2019, I will refrain from filing a complaint on this matter.”
Sullivan responded to this letter stating that “you (Shelstrom) have previously been cautioned not to misrepresent fact, disparage district employees or to use incomplete legal analysis to make inaccurate statements regarding the district’s operations as such activity, if negligent, reckless or willful, could be actionable. Making false statements with knowledge that damage will result to one’s professional reputation constitutes defamation per se. A person commits theft by extortion by knowingly obtaining or seeking to obtain services or property by means of a threat to do in the future various actions, including to cause a public servant to take or withhold action.
“Your letter contains false and misleading statements in an effort to compel the district manager to make an ‘apology’ and secure its publication in The Fountain Hills Times…You also threaten that if such action is not taken…you intend to file an ethics complaint with the (NSPE), with full knowledge that such action on your part may damage her professional reputation.
“The District…will not tolerate further false or misleading assertions against the professionalism of any member of its staff, including, but not limited to the district manager. It is you who owes Ms. Trompke an apology.”
Sullivan also points out that with regard to the earlier Times story, the references to methane and hydrogen sulfide were not part of a direct quote from the district manager.
“The statements, while attributed to Ms. Trompke, are not purported to be her exact words or her complete statement,” Sullivan said. “Ms. Trompke had no control over the reporter’s interpretation of her remarks.”
Sullivan continued his challenge of Shelstrom and his actions.
“Your misrepresentation of the context of the phrases upon which you rely is reckless and intentionally attempts to place Ms. Trompke in a false light in an effort to compel her, as a public servant, to take action,” Sullivan said. “Moreover, you threaten to knowingly publish these phrases as direct statements of Ms. Trompke in a manner in which you know or should know could damage her business reputation. These actions may rise to the level of defamation per se and/or theft by extortion.
“Even more egregious is your baseless and reckless suggestion that Ms. Trompke received a substantial raise as ‘a quid pro quo dependent upon the project being awarded outside competitive bidding, and using the [CMAR] method to awarding the contract which appears to be in violation of requirements of [state statute].’ There is no factual basis for such a libelous statement.”
Shelstrom said the nature of his request to the district manager in seeking a correction in The Times is being misunderstood.
“It appeared to me that inferring there were dangerous ‘methane, hydrogen sulfide and other noxious gasses’ in the vaults as a basis for removing them was knowingly false and I wanted to give Ms. Trompke the opportunity to correct this misstatement per the Code of Ethics,” Shelstrom said. “If she chose not to do so, my obligation may be making the Arizona Board of Technical Registration aware of the situation for them to determine whether a breech of ethics occurred or not. That’s not ‘extortion’ by any definition. The false claim that it was was just part of attempted threats, bullying and intimidation by the district to suppress questioning of questionable district activities that I've come to expect.”
Shelstrom said that he believes he has done nothing for which an apology is necessary or appropriate.
“This is America. It’s never an ‘error’ to challenge something government does here when it appears contrary to the statutes,” Shelstrom said. “ARS 48-2018, which specifically provides requirements for Sanitary Districts to be competitively bid for projects like the restroom/vault removal project, was quite specific. The statutes being what they are, however, I suspected there was some other ‘loophole’ by which competitive bidding could be avoided, so I asked the question of the district. They identified this loophole for me and I thanked them for providing it in an open meeting.
“You have to do something wrong to apologize, and unless you consider questioning government ‘wrong,’ I did nothing for which to apologize.”