Democratic Arizona Attorney General Kris Mayes may have broken ethics rules after she recently criticized her client, the Arizona Department of Water Resources (ADWR) over concerns about their handling of the state’s water resources as drought conditions escalate. In a letter to ADWR Director Tom Buschatzke, she said the agency is not reviewing groundwater basins often enough to determine whether the agency should become more heavily regulated. Mayes also expressed concern that water transfers ADWR approves may have “grave consequences.”
But an attorney with substantial experience in government law told The Arizona Sun Times, “Mayes had no authority to make those moves and likely violated attorney ethics rules since she is the attorney for ADWR. It’s a violation of attorney-client privilege.”
The State Bar of Arizona’s Rules of Professional Conduct has an extensive section under Ethical Rule 1.6 discussing the confidentiality of information between a client and their attorney. The Maricopa County Supervisors filed a bar complaint against Andrew Thomas, a Maricopa County attorney, in 2009 for going public with criticism and actions against them, and he was ultimately disbarred.
There are specific exceptions to the attorney-client privilege laid out in ER 1.6, but they primarily consist of stopping a client from committing a crime, there is nothing in there about merely criticizing a client.
Mayes sent the letter on April 17.
She said, “ADWR has had a statutory duty to ‘periodically review all areas which are not included within an active management area to determine whether such areas meet any of the criteria for active management areas,” citing A.R.S. 45-412(C).
However, “two studies of a single basin in a forty-year period does not satisfy the statutory duty to periodically review ‘all areas which are not included within an active management area.’” She demanded to know if there were any other studies done that she did not know about and whether there was a reason ADWR was unable to comply.
Mayes also criticized the department for instituting a policy in 2020 allowing water transfers involving the Colorado River, including one from a farmer to the town of Queen Creek. She said, “These water transfers could have grave consequences for local on-river communities and the River.”
The attorney general added, “When ADWR approved the Queen Creek transfer, it appeared to consider that transfer in isolation, and to ignore the cumulative effect that other anticipated transfers might have.”
Mayes Criticized AWDR for not coordinating better with the Arizona State Land Department on approving wells.
The letter comes at the same time Mayes convinced ADWR to revoke the approval of well drilling permits to a Saudi-owned company, Fondomonte. In an op-ed for The Arizona Republic shortly before last year’s general election, Mayes said she would stop the “giveaway” to “one of the richest nations on Earth.” Mayes said the company was paying a $25/acre land lease in La Paz County which was “well below market rates,” where it grew alfalfa to ship back to Saudi Arabia to feed cows. Growing alfalfa is illegal there due to the amount of water it consumes.
Not everyone believes the state is running out of water. Republican Legislative District Chair Cory Mishkin, who unsuccessfully ran for the Central Arizona Water Conservation District (CAWCD) Board of Directors last fall, said during a candidates’ debate, “We are not running out of water.”
He pointed out that Arizona leads the nation in water conservation and has used less water every year since 1980, currently using the same amount it did in 1957.
He said it was “doable” to solve the water shortage.
“I think you need people who will take the fight beyond Arizona’s borders and go pick on our big neighbor to the left, California,” he said.
The attorney who spoke with The Sun Times said he believed that Mayes — whose Republican opponent Abe Hamadeh claimed that she has never actually practiced law — didn’t understand her role as the attorney general and was acting as if she was still a commissioner on the Arizona Corporation Commission, forcing entities to comply with her instructions.
Even Democratic Governor Katie Hobbs agreed in February that Mayes had no authority to terminate the Saudi leases. The Republic stated, “The issue was more complex than single leases, Hobbs told reporters, and ‘not something that the AG has the authority to, frankly, do on her own.’”
In March, the Goldwater Institute issued a plan to deal with Arizona’s drought that does not increase the size of the government.
– – –
Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
Photo “Kris Mayes” by Kris Mayes for Arizona. Background Photo “Arizona River” by makenzie cooper.
