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Former Arizona Corporation Commission lawyer threatens lawsuit alleging discrimination, retaliation

The Arizona Corporation Commission’s former top attorney is threatening to sue the agency over allegations that some commissioners and staff engaged in a pattern of retaliation and race and gender-based discrimination.

An attorney for Robin Mitchell, who was director of the Corporation Commission’s Legal Division since 2018, sent a notice of claim to the agency last week, alleging three Republican commissioners have systematically attempted to remove non-white staff members from leadership positions.

According to the letter, four of the Corporation Commission’s seven divisions were led by non-white directors before the commission, under the leadership of Republican Chairman Jim O’Connor, underwent a staff shakeup last year.

Since that time, three of those four directors have resigned or otherwise been removed from those positions — like Mitchell, who was reassigned to take a recently created role dealing with “special projects” for commissioners. 

Mitchell, who is Black, characterized the moves as “a purge of the Commission staff."

“Following the purge, there remained only one non-white director,” according to the letter sent by Mitchell’s attorney, Andy Kvesic.

In a statement provided by a Corporation Commission spokesperson, the commission denied those allegations.

“The Commission notes that the claimant is still employed by the Commission and is being paid at a rate higher than when she was the head of the legal division,” according to the statement. “The Commission has not, does not, and will not discriminate on the basis of race or any other category, but bases its employment decisions on objective work-related criteria.”

APS rate case hearings

But Mitchell claims the “purge” began shortly after the Commission voted to hire Executive Director Doug Clark in April 2023, and that she was forced out of her job. Mitchell began as a staff attorney at the Commission in 2006 and was eventually appointed to lead the department in 2018.

“For over a decade, Ms. Mitchell’s performance at the Commission was consistently exemplary, as illustrated by her history of outstanding performance reviews. … She served with distinction under many different Commissioners and Executive Directors,” according to the claim.

Clark told Mitchell she was being removed due to poor performance by some new staff attorneys during the APS rate case hearings while Mitchell was on vacation. Mitchell claimed she had already put together a plan that she shared with Clark to remedy the situation.

“He acknowledged that he told ‘them’ that and then said, ‘they wanted you gone yesterday,’” according to the notice of claim.

Mitchell alleged Clark was referring to O’Connor and Commissioners Nick Myers and Kevin Thompson, both Republicans who were elected to the commission in 2022 and often vote as a bloc alongside O’Connor.

She claims the firing was politically motivated and not justified by her performance, claiming the commission replaced her with a less qualified attorney who is politically aligned with the O’Connor bloc.

New top lawyer

The Arizona Republic reported in February that the Corporation Commission hired Tom Van Flein, formerly chief of staff to Republican Paul Gosar, to replace Mitchell.

Van Flein, who was once an attorney for Sarah Palin, is not an active member of the State Bar of Arizona, which was a requirement listed by the Commission on its job listing to replace Mitchell. Additionally, Mitchell alleged Van Flein had little experience dealing with the Corporation Commission’s primary duties, including utilities and corporate public meetings.

According to Van Flein’s LinkedIn page, prior to working for Gosar, he founded a law firm dealing with “professional liability, product liability, employment law, appellate law, professional licensing and credentialing, insurance coverage, and political consulting.” 

“His role has been far more political than legal in nature, and to the extent it involved any legal work at all, it was general in nature, and unrelated to the laws he will be expected to analyze and enforce at the Commission,” according to the notice of claim.

Kvesic, Mitchell’s attorney, also points to Van Flein’s hiring as evidence of discrimination against his client, because Van Flein, a white male, was given a salary of $190,000, which was $27,000 higher than Mitchell’s salary while holding the same position and well above the $150,000-$160,000 salary on the job listing. 

Mitchell received a raise to $171,000 when she took on the position of Director of Special Projects, a position she still holds today. 

Discrimination allegations

Mitchell claimed her reassignment was part of a larger pattern of discrimination against longtime employees of color.

A few weeks after Clark was hired, according to the letter, he told Elijah Abinah, who is Nigerian, that he would be replaced as the director of the Commission’s utilities division. Abinah, who had come under fire by consumer advocates for his decision making in the past, was given the opportunity to stay on staff in a newly created position dealing with “special projects” for the commission in an largely empty area of the Corporation Commission’s office building near the Arizona Capitol.

“As such, Mr. Abinah’s new location left him tucked away on the first floor and isolated from the rest of the Commission staff,” according to the notice of claim. 

Clark would later make the same offer to Mitchell, who currently remains employed in that position. Abinah resigned in July 2023.

That came just months after Abinah filed an ethics complaint against Tom Broderick, who was O’Connor’s policy advisor, over allegations Broderick changed recommendations written by Corporation Commission staff he didn’t agree with and attempted to get Abinah fired by former Corporation Commission leadership. Broderick resigned in February 2023, a week after the Yellow Sheet Report reported on the ethics complaint. 

Mitchell also claimed Steven Olea, a special advisor to the commission, and Chief Information Officer Letitia Butner, who are both Hispanic, left under similar circumstances. 

Olea, who first began work at the commission in 1983, eventually became Utilities Division Director before retiring in 2015. He later served as a policy advisor to former Commissioner Bob Burns and became a special advisor after Burns left office in 2021. 

Under Clark, Mitchell alleged Olea was moved to the same empty portion of the building as Abinah.

“Soon after Mr. Clark started, however, Mr. Olea was informed that ‘they don’t want you here,’” according to the notice of claim. “It is our understanding that ‘they’ referred to Chairman Jim O’Connor, Katharine Fredriksen, Commissioner Kevin Thompson, and Commissioner Nicholas Myers, who were essentially the controlling arm of the Commission.”

Fredriksen, who is Thompson’s sister, is also O’Connor’s policy advisor and previously worked on the Thompson and Myers campaigns.

Butner was hired by the commission in 2013. She retired in lieu of termination in July 2023, according to the letter. Mitchell alleged Butner was targeted because she did not support Business One Stop, an initiative that began under former Republican Gov. Doug Ducey and has continued under Democratic Gov. Katie Hobbs that aims to provide all Arizonans looking to start a business in one place.

That caused tension as the Commission sought a budget increase from lawmakers to improve its online services.

“Indeed, during the 2023 legislative session, a Representative commented that he would not support the Commission’s budget request as long as Ms. Butner was an employee,” according to the letter. “Ms. Butner was also aware of negative comments by Commissioner Myers regarding the layout of the Commission’s website.”

Open Meeting law controversy

Mitchell also alleged retaliation played a role in the Commission’s decision to sideline her. 

In November 2023, four of the five Corporation Commissioners — Republicans O’Connor, Thompson, Myers and Lea Márquez Peterson — signed a letter to Hobbs asking her to explore ways she could aid residents living within San Carlos Irrigation Project boundaries that saw utility rates spike in September.

But the commissioners never met in a public meeting before signing the letter, leading their fellow Commissioner Anna Tovar, a Democrat, to suggest the Republicans violated the state’s Open Meeting Law, which requires elected officials to hold public meetings anytime a majority makes a decision on behalf of the public body.

Thompson, who spearheaded the letter, denied that allegation, but Mitchell, the commission’s top attorney, told commissioners “they likely had violated Arizona’s Open Meeting law.”

Mitchell alleged the commissioners then retained an outside attorney because they were dissatisfied with her opinion. 

“We understand that attorney O’Grady came to the same conclusion of Ms. Mitchell, namely, that the Commissioners violated Arizona Open Meeting Law,” according to the notice of claim. “The only difference was that the Commissioners accepted Ms. O’Grady’s conclusions but not Ms. Mitchell’s.”

In a statement, the Corporation accused Mitchell of making “statements in the notice of claim that are misleading or inaccurate and will be addressed through the legal process.” But Corporation Commission spokeswoman Nicole Garcia declined to elaborate on which allegations were inaccurate.

“I was informed that we cannot elaborate on which statements are misleading or inaccurate,” Garcia said.

Mitchell offered to settle the dispute if the Commission agrees to pay her $939,000 to settle back pay she believes she is owed due to the discrepancy between her salary and Van Flein’s pay rate.

“Ms. Mitchell also requests assurances that the Commission will immediately cease its discriminatory employment practices,” according to the letter. 

The commission has 60 days to formally respond to Mitchell’s claims before she can file a lawsuit seeking damages.

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Wayne Schutsky is a broadcast field correspondent covering Arizona politics on KJZZ. He has over a decade of experience as a journalist reporting on local communities in Arizona and the state Capitol.