Lawfare in Fountain Hills

Fountain Hills was sued by the developer of Park Place, yesterday was sued for election interference in ReferendumGate, and tonight is risking another civil rights lawsuit. This is lawfare and not how to run a town.

Timothy A. La Sota, PLC
2198 E. Camelback Rd., Suite 305
Phoenix, Arizona 85016
P 602-515-2649
[email protected]
March 5, 2024

Via electronic mail to:
Mr. Aaron Arnson
Town Attorney
Town of Fountain Hills
[email protected]
Re: “Ethics” complaints (political kneecapping) regarding Councilman Skillicorn
Dear Mr. Arnson:
This law firm represents Councilman Allen Skillicorn.
I urge this Council to promptly dispense with the “ethics” complaints that have been
“sustained” by lawyer Tina Vannucci (“Lawyer Vannucci”), one of which was brought
by one of Councilman Skillicorn’s detractors on this Council. These supposed
complaints represent nothing more than a politically motivated attempt to smear
Councilman Skillicorn, while trashing his constitutional rights in the process. This has
already subjected the Town to liability. I urge this Council to stand down before any
more damage is done to the Town, its institutions, and its esteem in the minds of the
public.
In terms of these types of political hits, it is a classic good news, bad new situation. The
bad news is that partisans are increasingly engaging in lawfare. That is, abusing various
legal processes to try to damage their political adversaries. The good news, if it can be
called that, is that such efforts have become so commonplace and obvious that the public
is not fooled. The supposed charges, sustained by Lawyer Vannucci, are groundless, and
the simple fact that Councilman Skillicorn is having to hire an attorney, at his own
expenses, to fight these political hits gives rise to liability for violation of Councilman
Skillicorn’s rights. They must be dismissed.
The First Sustained “Ethics” Complaint
Incredibly, Lawyer Vannucci sustained a complaint against Councilman Skillicorn for

Mr. Arnson
March 5, 2024
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comments he made at a Town Council meeting. I cannot think of a better way to shut
down the type of open discussion of the issues that the public desperately needs than for
this Council to exacerbate the civil rights violations that have already been committed
against Councilman Skillicorn by “sanctioning” him for what he said on rezoning matter
being debated by the Council.
To begin with, Lawyer Vannucci apparently forgot all about legislative privilege. That
is, where “statements were made by a town council member at a formal council meeting
during the course of that meeting....the statements are protected by an absolute
immunity.” Sanchez v. Coxon, 175 Ariz. 93, 97 (1993). This is for good reason. Lawyer
Vannucci’s path leads to a situation where elected officials, at least ones of certain
political stripes, are afraid to say anything. In fact, this whole effort is about shutting
Councilman Skillicorn up.
In addition, Councilman Skillicorn’s rights under the free speech provisions of the First
Amendment are being violated. The Ninth Circuit has summed up the law on this topic,
and the wide latitude given to elected officials to discuss matters of public concern, as
follows:
Restrictions on a council member's ability to attend council meetings and
address matters of public concern may infringe the member's First
Amendment rights. See Bond v. Floyd, 385 U.S. 116, 137, 87 S.Ct. 339, 17
L.Ed.2d 235 (1966) (Georgia legislature's disqualification of elected
representative on account of statements about the Vietnam war violated
representative's right of free expression under First Amendment). As the
Court stated in Bond, “[t]he manifest function of the First Amendment in a
representative government requires that legislators be given the widest
latitude to express their views on issues of policy.” Id. at 135–36, 87 S.Ct.
339. But “[t]he central commitment of the First Amendment ... is that
‘debate on public issues should be uninhibited, robust and wide-open’....
[S]tatements criticizing public policy and the implementation of it must be
... protected.” Id. at 136, 87 S.Ct. 339 (emphasis added) (quoting New York
Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686
(1964)).
DeGrassi v. City of Glendora, 207 F.3d 636, 646 (9th Cir. 2000).
It is worth noting that the comments of the would-be legislator in the Bond case, Julian
Bond, were made after his election but prior to his being seated as a Georgia legislator.

Mr. Arnson
March 5, 2024
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That is, they were not even made in a legislative setting! In contrast, Councilman
Skillicorn made his comments at a Council meeting on a rezoning case!
Lawyer Vannucci attempts to use the “time, place and manner” exception to justify the
attempts to squelch Councilman Skillicorn’s free speech rights. Lawyer Vannucci’s
discussion of this issue is cursory, inaccurate, and shameful in how she so cavalierly
dismissed free speech concerns.
On this topic, with seemingly never-ending case law nearly universally supporting the
right to speak freely, Lawyer Vannucci discusses but three cases, none of which even
remotely stand for the proposition that a governmental body may curtail an elected
official’s right to discuss a policy issue at an official council proceeding.
The United States Supreme Court decision in Nevada Com'n on Ethics v. Carrigan cited
by Vannucci merely discussed whether a public official could be disqualified from voting
on an issue on which he or she had a conflict of interest, or could be barred from
advocating the failure or passage of such an item in official legislative debate. 131 S.Ct.
2343, 2347, 564 U.S. 117, 121 (U.S. 2011)(“Restrictions on legislators' voting are not
restrictions on legislators' protected speech”). Clearly such a restriction is legal. Though
Councilman Skillicorn does not have an actual pecuniary interest in this matter, it is the
same reason Councilman Skillicorn is not voting on this matter. That issue has nothing to
do with the attempts to squelch Councilman Skillicorn’s free speech.
The Ninth Circuit case of Garnier v. O'Connor-Ratcliff cited by Vannucci dealt with two
school board members’ social media page and whether those members could restrict
access to it. 41 F.4th 1158 (9th Cir. 2022). It is ironic that Lawyer Vannucci cited this
case in alleged support of sanctioning Skillicorn for his exercise of free speech given that
the Ninth Circuit found the school board members’ squelching of comments by
individuals on a social media platform was a violation of the individuals’ First
Amendment free speech rights! Under Vannucci’s logic, comments on a social media
platform sponsored by two school board members is protected, but comments by a
councilmember in an open session may be stifled if it offends any other councilmember?
Lawyer Vannucci’s perfunctory legal analysis is clearly untenable.
The last case Vannucci cites is a Sixth Circuit opinion (not even binding law in Arizona)
that finds that a personal social media page of the City Manager of Port Huron, Michigan,
James Freed is not a public forum. In that case, the Court found:
[City Manager] James Freed didn't transform his personal Facebook page
into official action by posting about his job. Instead, his page remains

Mr. Arnson
March 5, 2024
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personal—and can't give rise to section 1983 liability [based on a violation
of free speech rights under the First Amendment].
Lindke v. Freed, 37 F.4th 1199, 1201 (6th Cir. 2022).
Any objective reader would be left wondering what in the world that case has to do with
this case. The answer is nothing. Lawyer Vannucci’s analysis appears to have started,
rather than ended with a conclusion. The rationale she comes up with to try to support
her conclusion is simply not availing.
The Second Sustained “Ethics” Complaint
The second complaint deals with a Town employee who removed a political sign under
highly question circumstances. This was also a matter of public concern as this employee
had removed a political sign belonging to Councilman Skillicorn with a political message
urging voters to reject the bond measure, which they did.
As such, everything said above on free speech applies to this supposed complaint also—
and this Council would be invading Councilman Skillicorn’s First Amendment rights if it
were to sanction him. One additional fact is how broad and malleable the Code of Ethics
is on this point and how the malleable language of the Code of Ethics could sustain just
about any allegation against a councilmember. And in contrast to Councilman
Skillicorn’s protected Council speech, the facts in this matter are disputed.
In this supposed ethics violation, Lawyer Vannucci admits that “I am unable to
definitively determine whether any traffic laws were in fact violated...” So in other
words, her standard seems to be that any traffic law violation amounts to an “ethics”
violation for which the Council should consider a sanction. But given that the actual
statements from the Town employee and Councilman Skillicorn cannot even support
an allegation of a traffic law violation, Lawyer Vannucci tries to paper over this
obvious deficiency in this politically motivated ethics complaint by stating that “I do
not believe that following [Town employee] Lucchese to Town Hall and flashing
headlights at him to try to get him to pull over or to try to talk sets ‘a positive example
of good citizenship’ as required by the Code of Ethics.” But what is a positive
example of good citizenship, and how does this language possibly give anyone
appropriate notice as to the type of behavior that might not constitute “good
citizenship” or “bad citizenship”?
Now flashing one’s headlights is an “ethics” violation. What is next, honking one’s
horn?

Mr. Arnson
March 5, 2024
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This Ethics Code is clearly deficient in terms of the notice it gives of what behavior it
requires or expects. The United States Court of Appeals for the D.C. Circuit has
summed up the law on this well:
“A fundamental principle in our legal system,” the Supreme Court observed
in F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 132 S.Ct. 2307,
183 L.Ed.2d 234 (2012), “is that laws which regulate persons or entities
must give fair notice of conduct that is forbidden or required.” Id. at 253,
132 S.Ct. 2307. Such “[e]lementary notions of fairness,” the Court
explained in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct.
1589, 134 L.Ed.2d 809 (1996), “dictate that a person receive fair notice not
only of the conduct that will subject him to punishment, but also of the
severity of the penalty that [the government] may impose.” Id. at 574, 116
S.Ct. 1589. “This requirement of clarity[,] ... essential to the protections
provided by the Due Process Clause of the Fifth Amendment,” Fox
Television, 567 U.S. at 253, 132 S.Ct. 2307, “is implicated” whenever the
government imposes “civil penalties,” Gore, 517 U.S. at 574 n.22, 116
S.Ct. 1589 (emphasis omitted). Where such penalties “threaten[ ] to inhibit
the exercise of constitutionally protected rights[,] ... a more stringent
vagueness [and fair-notice] test should apply.” *665 **112 Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498–99,
102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).
Karem v. Trump, 960 F.3d 656, 664–65, 447 U.S.App.D.C. 103, 111–12 (D.C. Cir.
2020)(emphasis added).
Councilman Skillicorn was understandably unhappy about his political sign being
removed, under questionable circumstances, and wanted an explanation. And of
course, the facts of exactly what happened are disputed. Councilman Skillicorn flatly
denied approaching anyone in an “aggressive” or improper manner, but somehow
that does not make its way into Lawyer Vannucci’s report. And of course, the sole
witness to this, which amounts to an allegation merely that Councilman Skillicorn
approached him “aggressively” is a single person. Even allegations of witchcraft
required two witnesses!
Lawyer Vannucci also states that “[o]nce Councilman Skillicorn realized it was a
Town truck he was following, he could have contacted the Town Manager to
determine how to retrieve the sign and for an explanation of why it was removed.”
(Emphasis added). Wrong answer. The government is not permitted to dictate the

Mr. Arnson
March 5, 2024
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manner in which a citizen decides to approach a government employee, and may
impose know malleable “politeness” or “civility” requirement, which means different
things to different people anyway. Councilman Skillicorn took this action purely as a
private citizen. A private citizen could not conceivably be punished for a simple
exercise of one’s right this way. Nor can a councilmember. Councilmembers enjoy
no fewer rights than anyone else. DeGrassi, 207 F.3d at 646.
Conclusion
It is unfortunate that the Town has adopted an Ethics Code that purports to permit
this Council to punish a member of their Council for not adhering to principles of
“good citizenship” or for free speech that certain members of Council disapprove of.
It is also unfortunate that Lawyer Vannucci, who is being paid at Fountain Hills
taxpayer expense, has been willing to sustain these obviously baseless complaints.
This whole exercise has been a mockery and complete waste of money.
But be that as it is, some things are clear. The public is not the least bit fooled by the
modus operandi of the political detractors of Councilman Skillicorn who would
sacrifice the First Amendment and due process to try to harm Councilman Skillicorn
politically. The agenda of Councilman Skillicorn’s opponents it obvious—file a
series of baseless ethics complaints that invoke a wholly ambiguous Ethics Code,
then run to their media comrades to write about ethics violation allegations that are
“piling up.” And then convince four political opponents of Councilman Skillicorn to
sanction him for these alleged violations.
The public sees through such obvious smear efforts, and understands that certain
politicians, based on their viewpoints will inevitably be the target of such smear
campaigns.
The first order of business for the Town is to dismiss these baseless charges. If these
allegations are sustained, it will constitute an actionable claim by Councilman
Skillicorn for violation of his First and Fifth Amendment rights under Section 1983
of the United States Code.

Mr. Arnson
March 5, 2024
Page -7-
The second order of business is to amend the “Ethics” Code so that it cannot be
readily used by partisans with assistance from taxpayer funded attorneys. Please take
no action on these baseless ethics complaints.

Very truly yours,
TIMOTHY A. LA SOTA, PLC

Timothy A. La Sota