Research and public records can be a wonderful thing. There is an outstanding case regarding the development of Rumsey Park and the agreement with Varxity. As you will recall, we discussed a motion for summary judgment filed by the Town of Payson that relied, in part, on the passage of Propositions 401 and 402. That discussion may be found here. Plaintiffs filed an opposition to the motion for summary judgment. In that motion, Plaintiff (Varxity) states:
23. Opposed. The voter-initiated propositions (Propositions 401 and 402) did not restrict the Town’s ability to lease property and the Town treated those propositions as ineffective and unconstitutional. (Deposition of Town of Payson (Troy Smith) attached hereto as Exhibit A, 49:7 – 50:20.)
Plaintiff (Varxity) is referring to statement 23 found on the statement of facts by the Town, page 3, line 23 and page 4, lines 1 through 13. The full document can be found in our discussion, or directly here. It reads in part as follows:
The Town, Varxity, and CCP recognized, at the time, that the election results effectively prevented the Town from moving forward with the validation phase.
As a reminder, the Town of Payson via Resolution 3132 of 2018 stated: “WHEREAS, on August 28. 2018, the electorate of Payson passed two ballot initiatives (401 and 402) which will become effective on January 1, 2019….”
Plaintiff exhibits included a partial transcript of the deposition of Town Manager Troy Smith. That deposition occurred on February 3rd, 2022, that was a year before the motion to repeal by Town Council. Well, 433 days before, to be exact.
401 and 402, in our town attorney’s opinion, are unconstitutional, and they do not apply to the Town government. They should not have been authorized to have been on the ballot because the citizens did not have the authority, as provided by Arizona state statute or by the constitution of Arizona, to have been referred to the ballot in the first place.
When asked if the Propositions would apply to the development of Rumsey Park, Mr. Smith states:
So, specifically, answering your question with respect to this development, there is not a provision in 401 or 402 that, if they were valid measures, would apply to this project.
The .pdf documents may be found in their entirety below.
The Town has long disregarded the validity of the Propositions. Although adopted Town Code at the time, it appears that Mr. Smith has little concern for the validity of the Propositions. Perhaps Mr. Smith and the Town of Payson, by extension, are judge, jury, and executioner on all things constitutional in Arizona and the will of the citizens they were hired to serve. The Town effectively repealed the Propositions in practice based only on the opinion of Town Legal. Town Code and the voters’ will can, and apparently will, be disregarded.
The Town Manager acts under Town Council’s direction; it seems not all direction has equal weight. To reference the Town’s website, “The Town Manager is responsible for carrying out the policies, ordinances, and resolutions of the Council, and for overseeing the day-to-day operations of the Town.” The Town Council’s authorization of the purported repeal did not occur until April 12th, 2023.
It seems odd that the Town Manager or Town staff could take such a position before the purported repeal by Town Council. We wonder under what authority that was done. It seems beyond a town manager’s scope of employment to act unilaterally. Perhaps that is a topic for the elected Town Councilors to have during contract renewal.