By Beau Hodai
September, 2013
Intro: the potential bid
A former Corrections Corporation of America “senior director of business development” and lobbyist is planning to run for the office of Arizona’s top law enforcement officer.
View source materials archive.
On September 3, Arizona Department of Gaming Director Mark Brnovich sent a letter to Arizona Governor Jan Brewer, declaring his intention to resign his post, effective September 20. In the months preceding this resignation, Brnovich stated serious consideration of a bid for the office of Arizona Attorney General. While Brnovich has yet to file any formal campaign/committee registration documents with the Office of the Arizona Secretary of State Division of Elections, the Capitol Times reported on September 4, that Brnovich had reserved the website address, “mark4ag.com,” on August 23.
Brnovich, a Republican, would likely be challenging incumbent Arizona Attorney General Tom Horne in the 2014 Republican primary election for the office. Over the past year Horne has been the subject of both federal and Maricopa County (home to Arizona’s urban center, the Phoenix metropolitan area) investigations into alleged campaign law violations, in that Horne allegedly coordinated with an independent expenditure committee in the creation of negative ads targeted at his Democrat opponent during the 2010 election.
While Brnovich may well be qualified for the office of Attorney General, having previously served as an assistant Arizona Attorney General under former Arizona Governor Jane Dee Hull, and having previously served as a deputy Maricopa County Attorney from August of 1991 to May of 1998, Brnovich is not without his own possible serious lapses in ethical judgement. According to statements of financial disclosure filed with the Office of the Arizona Secretary of State Division of Elections by Brnovich’s wife, former Maricopa County Superior Court Commissioner and current Maricopa County Superior Court Judge Susan Brnovich, Mark Brnovich served as a “senior director of business development” for Corrections Corporation of America (CCA) during the course of 2005, 2006 and 2007. As will be discussed, CCA was not Brnovich’s sole source of employment during this time– and Brnovich’s employment by/on behalf of CCA during 2007 in particular may be the source of a severe conflict of interest in the prospective Arizona Attorney General’s past.
The CCA man
Statements of financial disclosure filed by Susan Brnovich, per her employment as a Maricopa County Superior Court Commissioner and Maricopa County Superior Court Judge are only available with the Office of the Arizona Secretary of State Division of Elections dating back to 2005. As such there is no publicly-available record of Mark Brnovich’s financial interests or employment prior to this point. However, biographical data submitted to the Arizona Legislature pursuant to Mark Brnovich’s March 31, 2009 appointment as director of the Arizona Department of Gaming (ADG) also states that Mark Brnovich began his employment with CCA in 2005. Similarly, lobbyist records maintained by the Office of the Utah Lieutenant Governor show that Mark Brnovich was a registered lobbyist for CCA in that state during 2005 and 2006 (Utah lobby reports filed for Brnovich during 2006 and 2007 pertain to Brnovich lobby activity on behalf of CCA during 2005 and 2006). It is also worth noting that, while statements of financial disclosure filed by Susan Brnovich do not reflect any continued financial interest in CCA beyond 2007, Mark Brnovich– in neither his capacity as director of the Arizona Department of Gaming, or as chairman of the Arizona Commission on Privatization and Efficiency (COPE, to which he was appointed by Governor Brewer in January of 2010)– has been required to file any statement of financial disclosure, as Arizona law does not require agency or commission heads to file such disclosures.
Neither Mark Brnovich or CCA Senior Director of Public Affairs Steve Owen responded to multiple inquiries relating to either the nature or duration of Brnovich’s employment with CCA.
While Mark Brnovich’s work as a CCA “senior director of business development” commenced in 2005, a year in which Brnovich was also employed as “director of the Center for Constitutional Government” at the influential Arizona public policy/lobby group, the Goldwater Institute; and while Brnovich served as a Maricopa County judge tempore throughout his entire tenure as “senior director of business development” for CCA, the two worlds of Brnovich’s public service/public policy development and for-profit prison corporation employment seem to have merged fully in 2007.
According to a lobbyist registration amendment filed with the Office of the Arizona Secretary of State Division of Elections, Mark Brnovich was registered as an authorized lobbyist for CCA on February 7, 2007. According to this lobbyist registration form, Brnovich’s travel, dining, lodging and out-of-pocket expenses were compensated for on behalf of CCA.
According to a lobbyist registration amendment filed with the Office of the Arizona Secretary of State Division of Elections, Mark Brnovich was removed as an authorized CCA lobbyist on December 21, 2007.
[It is worth noting here, as a quick aside, that these authorized lobbyist registration/amendment forms pertaining to Mark Brnovich were filed by CCA designated lobbyist, and president/CEO of Policy Development Group (PDG), Ron Ober. At the time of Mark Brnovich’s appointment as chairman of the Arizona Commission on Privatization and Efficiency by Governor Brewer in January of 2010, longtime PDG CCA lobbyist Paul Senseman was employed in the Office of the Governor as communications director. During this period, Senseman’s wife, Kathy Senseman, remained with PDG, lobbying on behalf of CCA.
Furthermore, it is interesting to note that CCA lobbyist expenditure reports disclose an apparent meeting between Paul Senseman and Brad Regens on February 2, 2007. Regens was, at the time of this meeting, director of fiscal policy in the Arizona House of Representatives. On November 27, 2007 CCA publicly announced the hiring of Regens as “senior director, state customer relations” (subsequently, Regens has become CCA “vice president, state partnership relations”). Regens, as is reflected by the December 21, 2007 CCA authorized lobbyist registration amendment notification filed by PDG president/CEO Ober, replaced Brnovich in his capacity as a CCA Arizona authorized lobbyist as Brnovich cycled out of the corporation. For more on CCA’s influence in Arizona during this period, see: http://dbapress.com/front-page/brownskins-and-greenbacks-alec-the-for-profit-prison-industry-and-arizonas-sb-1070]
It is important to note that, as required by Arizona Revised Statutes (ARS) 41-1232 (c) (the section of Arizona law that compels the filing of these lobbyist registration and amendment forms), “each principal [the entity employing lobbyists, in this case CCA] shall amend its registration statement within five business days of any change in the information required by subsection A.”
ARS 41-1232 (a) requires that lobbyist principals report, following the reporting schedule (and five business day requirement) promulgated by subsection C, a number of different criteria relating to lobbyists they employ. Among these criteria are: “a description of the expenses for which each lobbyist is to be reimbursed by the principal,” “duration of engagement of any lobbyist,” and “the name and business address of each lobbyist for compensation or authorized lobbyist employed by, retained by or representing the principal.”
In a nutshell, this means that any authorized lobbyist personnel change for a principal must be reported in the form of an authorized lobbyist registration/amendment submitted to the Office of the Arizona Secretary of State Division of Elections within five business days of the authorized lobbyist personnel change. In some states lobbyist reporting laws allow principals or their lobbyists to file such reports of personnel changes quarterly or annually. This is not the case in Arizona. As such, if these CCA lobbyist registration/amendment forms were filed accurately and in accordance with Arizona law, Mark Brnovich was a registered– and potentially compensated (lobbyist registration forms disclose the types of expenses that lobbyists “is to be” reimbursed by the principal, but do not contain any further information pertaining to this, or any other, compensation)– lobbyist in the state of Arizona from within five business days of February 7, 2007, to somewhere within five business days of December 21, 2007.
CCA Senior Director of Public Affairs Steve Owen did not respond to a request for comment on whether the 2007 CCA lobbyist registration/amendment forms (which were provided to Owen) were accurate and filed in accordance with Arizona law.
Furthermore, corporate records on file with the Arizona Corporation Commission show that Mark Brnovich became a director of Foster Angles of Arizona Working Together, Inc. (Foster Angels, a non-profit corporation) on May 1, 2007. According to Arizona Corporation Commission records, information pertaining to Brnovich’s role as director of Foster Angels was last updated on November 14, 2007. This information, as purportedly updated in November of 2007, gives Brnovich’s address as 3131 E. Camelback Road, Phoenix (the source of this information, as reflected in Arizona Corporation Commission records, is the Foster Angels 2007 annual report, filed October 22, 2007). 3131 E. Camelback Road is the address of CCA’s Phoenix corporate office [note: this is a CCA “satellite” corporate office; CCA is a Maryland corporation headquartered in Nashville, Tennessee].
The assistant U.S. Attorney
The reason for stressing the minutiae of Mark Brnovich’s lobby activity/employment on behalf of CCA over the course of 2007 is this: according to a statement of financial disclosure filed by Susan Brnovich on January 24, 2008, Mark Brnovich had two sources of personal compensation over the course of calendar year 2007. Those two sources of compensation were: Corrections Corporation of America and the United States Attorney’s Office.
Indeed, according to federal court records, Mark Brnovich, as an assistant U.S. attorney for the District of Arizona, was assigned as a prosecutor on eleven federal criminal cases (this amounted to the prosecution of ten individuals, as one of these eleven cases was redundant) in the U.S. District Court of Arizona, from September through November of 2007.
Of Brnovich’s prosecution of these ten individuals, four individuals served substantial pre-trial detention time (several months to a year and a half) in the custody of the Department of Justice’s (DoJ) U.S. Marshals Service (USMS), or in the custody of a “designated representative” thereof. While it is not known if such a “designated representative” in these specific cases was CCA, two of CCA’s facilities in Arizona, the Central Arizona Detention Center (2,304 beds) and the Florence Correctional Center (1,824 beds)– both of which are located in Pinal County, which neighbors Maricopa County and Phoenix, home to the Sandra Day O’Connor U.S. Courthouse, to the north; and Pima County and Tucson, home to the Evo A. DeConcini U.S. Courthouse, to the south– primarily served the federal court system, with a combined total of 4,128 detention and correctional “beds” under contract with USMS in 2007. It is also worth noting that Arizona was the epicenter of CCA’s involvement with USMS in 2007. Of the total 6,885 CCA beds under contract with USMS during that year, only 2,757 were located outside of the state of Arizona– and of that number, 910 beds contracted with USMS were located in CCA’s Torrance County Detention Facility, in Estancia, New Mexico– leaving the remaining 1,847 2007 CCA USMS beds scattered through three facilities in Leavenworth, Kansas (767 beds), Laredo, Texas (480 beds), and Mason, Tennessee (600 beds).
These four cases also resulted in a total combined 343 months (roughly 28.6 years, or approximately 10,290 days) of prison sentences to be served in the custody of the Federal Bureau of Prisons (BOP) by defendants convicted and sentenced through prosecutions of which Brnovich was a part, while apparently still employed by/on behalf of CCA (it is important to note, however, that while Brnovich commenced these prosecutions while still apparently working for/on behalf of CCA, none of these individuals were sentenced until 2008).
During the time of Brnovich’s apparent career overlap between CCA and the U.S. States Attorney’s Office in 2007, CCA held contracts for the incarceration of BOP prisoners in the California City Correctional Facility (2,304 beds– California City, California), McRae Correctional Facility (1,524 beds in McRae, Georgia), Cibola County Corrections Center (1,129 beds– Milan, New Mexico), Northeast Ohio Correctional Center (2,016 beds in Youngstown, Ohio), and the Eden Detention Center (1,293 beds– Eden, Texas).
While it is not known if any of these four prisoners were accommodated in any of these 8,266 CCA BOP beds (the vast majority of which were, notably, in the southwestern United States), consider this: in 2007, CCA’s per prisoner per diem rate with BOP likely ranged anywhere from $50 to $90; given the fact that these four Brnovich prosecutions resulted in approximately 10,290 days of BOP prison time– sentences that could easily have been served in any of the above-listed CCA facilities– Mark Brnovich’s federal prosecutions during a period of time in which he was still a registered lobbyist for CCA (and during a year in which he was employed as a “senior director of business development” for CCA) could have resulted in up to $514,500 to $926,100 in revenue for CCA (not including possible CCA revenue reaped through pre-trial detention of these defendants via contracts with USMS).
This is not to suggest that boosting the corporation’s bottom line through these prosecutions was either CCA’s or Brnovich’s intention. This is, however, a hell of a price tag to put on an apparent conflict of interest.
Indeed, as stated in CCA’s Securities and Exchange Commission (SEC) annual report for 2007:
“We depend on a limited number of governmental customers for a significant portion of our revenues. We currently derive, and expect to continue to derive, a significant portion of our revenues from a limited number of governmental agencies. The loss of, or a significant decrease in, business from the BOP, ICE [U.S. Immigration and Customs Enforcement], USMS, or various state agencies could seriously harm our financial condition and results of operations. The three primary federal governmental agencies with correctional and detention responsibilities, the BOP, ICE, and USMS, accounted for 40% of our total revenues for the fiscal year ended December 31, 2007 ($594.8 million). The USMS accounted for 14% of our total revenues for the fiscal year ended December 31, 2007 ($210.4 million), the BOP accounted for 13% of our total revenues for the fiscal year ended December 31, 2007 ($189.9 million), and ICE accounted for 13% of our total revenues for the fiscal year ended December 31, 2007 ($194.5 million). We expect to continue to depend upon the federal agencies and a relatively small group of other governmental customers for a significant percentage of our revenues [emphasis original].”
Neither Brnovich or CCA Senior Director of Public Affairs Steve Owen responded to multiple inquiries relating to either the nature or duration of Brnovich’s employment with CCA.
[Note: actual CCA BOP per diem rates for 2007 are not known. Furthermore, according to CCA SEC filings, per diem rates fluctuate between facilities based upon “actual or minimum guaranteed occupancy levels” specific to each contract. The above-given range is a conservative estimate based on known current and past CCA per diem rates with a variety of governmental clients. For example, according to the U.S. Department of Justice’s Office of the Federal Detention Trustee, the average per diem rate paid to a private contractor under a direct contract with USMS in 2007 was $86.20. On the other side of the governmental spectrum, the state of Arizona currently contracts medium security beds with CCA at a per diem rate of $65.43 (these beds go online in 2014 at CCA’s Red Rock Correctional Center, also located in Pinal County). Adjusting for per diem rate increases/fluctuations, as well as rate reductions in cost through contactual occupancy guarantees, a range of $50 to $90 per prisoner per diem is a fair conservative estimate.
Unfortunately, it is nearly impossible to zero in on a more accurate per diem rate for CCA BOP contracts (or any other federal contracts with any private prison contractor) due to the fact that contracts between private prison contractors and federal agencies obtained through Freedom of Information Act (FOIA) requests are consistently redacted to remove any information relating to per diem rates, or other payments, to the contractor. These redactions are applied to financial, or other, data pertaining to public-private partnerships under FOIA’s “trade secret” exemption (5 United States Code, sec. 552 (b) 4). As such, while public tax dollars finance this industry (and other public-private partnership industries), it is next to impossible to determine the true cost/efficacy of such federal partnerships, absent the leaking of documents through the actions of whistleblowers.]
Interestingly, according to Executive Office for United States Attorneys (EOUSA) General Counsel’s Office Management Analyst Lucy Hurley, assistant U.S. attorneys are not required to file any financial disclosure other than a statement disclosing conflicts of interest, should any exist, with each individual case they are assigned.
According to Hurley, these disclosures are known as EOUSA Forms GC01. While U.S. Attorney’s Office for the District of Arizona Public Affairs Officer Cosme Lopez initially stated that his office would be more than willing to aid in locating disclosure material, if any, pertaining to former Assistant U.S. Attorney Mark Brnovich, U.S. Attorney’s Office for the District of Arizona public affairs personnel quickly adopted a stonewall posture when asked if Brnovich had filed any forms GC01 in 2007. The Arizona U.S. Attorney’s Office attitude of non-cooperation became so complete that Public Affairs Officer Debra Massey stated, on September 12, that no question relating to Brnovich (including such rudimentary questions such as those pertaining to Brnovich’s dates of employment as an assistant U.S. attorney general), or any other matter, would be answered (if even by a rejection) without the submission of a formal FOIA request to EOUSA or the U.S. Attorney’s Office for the District of Arizona’s “FOIA section” (which seems to consist of one man, by the name of Howard Woodberry, who– like most of the Arizona U.S. Attorney’s Office– seems to be permanently unavailable). As such, DBA Press has filed FOIA requests with EOUSA and the Arizona U.S. Attorney’s Office “FOIA section” for both Mark Brnovich’s dates of employment with the U.S. Attorney’s Office for the District of Arizona (even though such a FOIA does not identify any set of actual records, as is typically the purpose of a FOIA request), as well as any disclosures of conflict of interest that may have been filed by Brnovich during the course of 2007. Neither the Arizona U.S. Attorney’s Office or EOUSA has delivered any information per these requests.
As for himself, Brnovich did not respond to repeated inquiries regarding potential conflicts of interest during this period.
Nevertheless, it is clear– whether Brnovich disclosed any conflict of interest or not– that he prosecuted these eleven federal criminal cases (against ten individuals) in the U.S. District Court of Arizona at a time when he was a registered lobbyist for CCA in the state of Arizona, and during a year when he had been employed by the for-profit prison corporation as a “senior director of business development.”
Redskins and Greenbacks, precursor to CCA’s Brown Period
Another interesting pattern emerges from Brnovich’s period of employment with CCA:
From January of 2004 to July of 2007, a team of in-house CCA lobbyists expended a total of $9,620,000 in lobbying a number of federal agencies– most notably the Department of the Interior’s Bureau of Indian Affairs (BIA). The sole definite lobbying issue identified by this group of CCA representatives on any of the lobbying disclosure forms filed with the Office of the Clerk of the House of Representatives (House Clerk) or the U.S. Senate Office of Public Records (SOPR) during this period of time was the “privatization of BIA detention facilities” [note: the only other lobbying purpose stated by this group of CCA lobbyists during this time was “legislation and regulatory activities related to the private prison industry.” No specific purpose, outside of the privatization of BIA detention facilities, was explicitly stated during this time period].
[Note: this group of CCA lobbyists, only one of several teams of CCA federal lobbyists during this time period, consisted entirely of CCA executives and directors. This executive CCA lobby group was composed, at various times, from 2004 through 2007, of: then-CCA Senior Vice President of Customer Relations Damon Hininger (Hininger became president and chief executive officer of CCA in 2009), CCA Senior Director of Federal Government Relations Jeremy Wiley, then-CCA Managing Director of Federal Partnership Relations Bart Verhulst, then-CCA Executive Vice President and Chief Development Officer Ken Bouldin, CCA Senior Vice President J. Michael Quinlan (a former BOP director), and then-CCA Executive Vice President and General Counsel Gustavus A. Puryear, IV.
It is important to note the positions held by members of this group of lobbyists within CCA, as all these men were either Brnovich’s employers or colleagues during his time with CCA.
It is also worth noting, in light of Brnovich’s activities within the U.S. Attorney’s Office during 2007, that Puryear was nominated as a federal judge in the United States District Court for the Middle District of Tennessee by President George W. Bush on June 13 of 2007. This nomination occurred while Puryear was still acting as a CCA executive vice president and general counsel– as a matter of fact, according to SEC records, Puryear purchased 31,100 shares of CCA stock through his employee stock options a little more than two months following his nomination, increasing his total CCA stock holdings at this time to more than 65,000 shares.
Due to public outcry, Puryear’s nomination was not confirmed. This public outcry was organized largely by former CCA prisoner and current Prison Legal News Managing Editor Alex Friedmann. In response to Friedmann’s organization of opposition to the Puryar appointment, CCA (through their corporate blog, “thecca360.com”) published a graphic account of Friedmann’s criminal history in an effort to discredit him and derail opposition to the Puryear nomination. Puryear departed from CCA in 2010 (he had been employed by CCA since 2001). For more on the Puryear nomination and opposition, see: http://www.againstpuryear.org/.]
Furthermore, from July through December of 2007, this group of CCA lobbyists expended an additional $1,320,000 in lobby activities that included the explicit purpose of lobbying BIA on the issue of the privatization of BIA detention facilities. During the second half of 2007, however, this CCA executive lobby group commenced lobbying activities against the Private Prison Information Act of 2007 (PPIA, this bill would brought private prison corporations under contract with federal agencies under the purview of the Freedom of Information Act. CCA vehemently opposed PPIA 2007, as well as PPIA 2009 and 2011. For more on CCA’s opposition to PPIA, see: http://fair.org/extra-online-articles/freedom-forum-ceo-tied-to-for-profit-prisons/) as well as the Public Safety Act (PSA), which would have banned federal use of private prisons/detention centers.
It is also worth noting that this group of CCA executives/lobbyists added the immigration issue code to their laundry list of general lobby activity for the first time in 2007, though no specific lobby issue regarding this subject was identified during this year [note: this is not to say that this was the genesis of CCA’s interest in immigrant detention. This was simply the first time this issue code had been used by this set of lobbyists]. This is important to note, as lobby reports filed by the CCA executive lobbyist group from 2008 to 2010 and beyond, show a distinct shift of focus from the BIA detention facility privatization issue that had dominated their attention from 2004 through 2007, to activity more centered on matters relating to ICE immigrant detention. According to lobby disclosure records filed with both the House Clerk and SOPR, the CCA executive lobby group did expend an additional $2,010,000 on lobby activity from 2008 through 2009 that including the lobbying of BIA on “issues related to the private prison industry,” though this activity does not appear to have been the primary focus of lobby efforts as it was during 2004 through 2007. The sole explicitly-stated issues identified by the CCA executive lobby group during 2008 and 2009 pertained to PPIA, PSA, the Prison Safe Communication Act, and several appropriations bills relating to ICE immigrant detention. According to federal lobby records, the CCA executive lobby group ceased all BIA lobby activity after the fourth quarter of 2009.
Interestingly, the quarterly average of lobbying expenditures reported by the CCA executive lobby group dropped markedly with the outset of this shift in focus from the privatization of BIA detention centers, to matters of immigrant detention and other problem legislation. To illustrate: from 2004 through 2007 (the sole explicitly-stated purpose from January of 2004 through July of 2007 being the privatization of BIA detention facilities) this group of CCA lobbyists reported an average expenditure of $672,500 per quarter [note: BIA-centered lobby activity peaked from July through December of 2005 with $2,260,000 in reported expenditures. While other general private prison industry-related legislative/regulatory affairs are eluded to in lobby reports filed by this group from 2004 through mid-2007, the weight of lobby activity directed toward BIA can be gauged by the 2006 mid year report. While all other reports filed by this group of CCA lobbyists from 2004 through 2007 (reports from this period were filed in half year increments, rather than quarterly) range from $1,120,000 to more than $2 million, the 2006 mid year report disclosed a lobby expenditure of only $880,000. By way of rationalizing this drastic lobby expenditure drop, consider this: this report was the sole report filed by this group of CCA lobbyists from 2004 through 2007 that did not list lobbying activity directed specifically at BIA]; by comparison, lobby expenditures reported by the CCA executive lobby group dropped to $251,250 per quarter during 2008 and 2009– a time when their BIA lobby efforts had clearly slackened.
[Another quick aside: so why would the federal lobby expenditures of this group of CCA executives drop off so drastically as they their focus to the much larger, and more lucrative, field of immigrant detention? One consideration to bear in mind is this: this is only one group of CCA federal lobbyists– over the years CCA has employed multiple firms lobbying on issues related to immigrant detention, so this may not have been the priority focus of the executive lobby group.
Another consideration is this: at various times over the course of 2009 and 2010 CCA (the nation’s largest operator of private prisons and immigrant detention centers), Geo Group (the nation’s second largest private prison/immigrant detention center operator) and Management and Training Corporation (MTC, at the time the nation’s fourth largest private prison/immigrant detention center operator. Following Geo Group’s merger with Cornell Companies in August of 2010, MTC rose to its current rank as the nation’s third largest private prison/immigrant detention center operator) were active in the functions of the American Legislative Exchange Council (ALEC) in Arizona. It was at the December, 2009 ALEC States and Nation Policy Summit that then-Arizona Senator Russell Pearce introduced a piece of legislation to the ALEC Public Safety and Elections Task Force (PS&E, a task force on which CCA representatives were at the time active, and which had been chaired by CCA throughout much of the 1990s) for adoption as a piece of ALEC “model legislation.” This bill, once adopted by ALEC (through a unanimous vote, in which CCA personnel took part), became known as the “No Sanctuary Cities for Illegal Immigrants Act,” otherwise known (upon its introduction to the Arizona State Legislature, a month and a half later, in mid-January of 2010) as SB 1070. This bill– which effectively would essentially compel every municipal, county and state law enforcement officer to perform the duties of immigration enforcement officers under certain circumstances– was, with the backing of private prison/immigrant detention center operators, distributed and promoted to state lawmakers nationwide through the ALEC PS&E Task Force. As such, it could be argued that a substantial portion of CCA’s immigrant detention business growth model may have shifted to the state level around the period of 2009 and 2010. For more on this, see: http://dbapress.com/front-page/brownskins-and-greenbacks-alec-the-for-profit-prison-industry-and-arizonas-sb-1070.
Apropos Brnovich’s prospective bid for the office of Arizona Attorney General and his past employment with CCA, it is important to note, in the context of SB 1070, that it is the role of a state’s attorney general to defend such pieces of state legislation should their legality/constitutionality be challenged.]
So, in broad strokes, what are we looking at here? From all these numbers, a clear pattern emerges: from 2004 through 2007 CCA executives expended almost $11 million lobbying, primarily for their sole explicitly-stated lobbying purpose: the privatization of Bureau of Indian Affairs detention centers. These years correspond with the known years of Mark Brnovich’s employment with/on behalf of CCA (2005 through 2007). These facts may provide an interesting insight into the possible nature of Brnovich’s employment with/on behalf of CCA.
Mark Brnovich is an attorney who specializes in tribal law and tribal government. During Brnovich’s work as an assistant attorney general under then-Arizona Governor Jane Dee Hull over the course of 1998 through 2002 (Brnovich states, in materials provided to the Arizona Senate that he worked as an assistant attorney general through 2003. The Hull administration ended in January, 2003), Brnovich developed ties within Arizona tribal governments, as well as experience with tribal law and state-tribal relationships. This is attested to in Brnovich’s own words to the Arizona Senate Committee on Commerce and Economic Development during the confirmation hearing pursuant to his appointment as director of the Arizona Department of Gaming, May 19, 2009:
“My resume and biography summarize my experience in matters involving Indian gaming, and I believe I am well qualified and well suited for this position. For example, I represented the Department of Gaming from 1998 through 2003, which was a very critical period. These were the pivotal years in which we negotiated the current [tribal] gaming compacts under which we operate. Additionally, that was a time period in which the state of Arizona and the indigenous tribes strengthened their cooperative relationships. Immediately prior to my appointment, I was an assistant United States attorney here in the District of Arizona, where I focused primarily on gambling and casino-related crimes. During this period I have successfully worked with federal, state and tribal regulators, and police agencies to prosecute criminal activity and coordinate crime prevention programs [sic].”
Indeed, of the ten individuals Brnovich prosecuted during his period of apparent overlap between employment by/on behalf of CCA, and the U.S. Attorney’s Office for the District of Arizona, all but one of these individuals were accused of either crimes committed against casinos operated by Indian tribes on Indian lands (pertaining to thefts/embezzlements perpetrated against casinos owned and located within the Salt River Indian Community and the Gila River Indian Community– both of which are located in or near the Phoenix metropolitan area), or against Indian individuals committed in “Indian Country” (in this case, a Navajo male accused of deliberately wounding another Navajo male with a .22 caliber rifle on the Navajo Reservation in northern Arizona).
While it is not known whether BIA was involved in any of the arrests, investigations, or in the detention of any of the defendants in Brnovich’s 2007 federal prosecutions, it is certainly clear that Brnovich, through the U.S. Attorney’s Office for the District of Arizona, had his fingers deep in Indian Country at a time when he was– in the least, since he had also been employed as a “senior director of business development” for CCA during the same year– a registered lobbyist for a corporation that had a clear and documented desire for profits derived from the incarceration of Indians.
Just as Arizona was the focal point of CCA’s involvement with USMS in 2007, and as Arizona was the epicenter of private prison industry-backed immigration enforcement ALEC “model legislation” in 2009 and 2010, Arizona is an excellent starting point for any for-profit prison corporation looking to incarcerate Indians; the state contains nearly 240,000 members of 22 tribes, living on nearly 15 million acres of tribal land. Perhaps most notably, the bulk of the Navajo Nation (consisting of the Navajo Reservation and Navajo Nation off-reservation trust land) is contained within Arizona. This combined Navajo land, which spreads out from northern Arizona into northwestern New Mexico and southeast Utah (a state in which Brnovich was also registered as a CCA lobbyist), is the largest and most heavily populated piece of Indian Country within the borders of the United States, with (according to 2010 Census Bureau data) 173,667 total residents. By comparison, the Navajo Reservation’s population dwarfs the nation’s second most populous reservation, the Osage Reservation in Oklahoma, total population 47,472. All told, five of the top ten most populous Indian reservations in the United States fall within the political boundaries of Arizona.
The Native American populations of Arizona’s reservations are policed by a mixture of tribal officers, BIA Division of Law Enforcement, the U.S. Department of Justice (Federal Bureau of Investigation, U.S. Marshals Service and U.S. Attorney’s Office), and– to the degree where tribal gaming operations are concerned– by the Arizona Department of Gaming and the National Indian Gaming Commission.
According to BIA spokeswoman Nedra Darling, CCA has held contracts for the management of BIA detention facilities in North Dakota and Wyoming, though these facilities are no longer managed by CCA. BIA was not able to provide dates for these contracts. According to Darling, the only current tribal CCA contract on record with BIA (though it is not clear what role BIA plays in this contract) is for the detention of Pascua Yaqi (reservation located in Pima County, Arizona) tribal members at the Central Arizona Detention Center in Florence, Arizona. Available records indicate that this contract was likely initiated in 1996.
Neither Brnovich or CCA Senior Director of Public Affairs Steve Owen responded to multiple inquiries relating to either the nature or duration of Brnovich’s employment with CCA. Brnovich did not respond to multiple inquiries relating to any role his tribal governmental/criminal justice expertise may have played in his employment with CCA.
A weak attempt at deflection
DBA Press attempted, several times over the course of September 12, 13 and 16, to obtain comments/information regarding several facets of Brnovich’s employment with CCA and the U.S. Attorney’s Office by contacting Brnovich directly.
Over the course of these dates, detailed sets of questions were submitted directly to both Brnovich and his assistant, Kylie Ketchum, through their Arizona Department of Gaming email addresses. Furthermore, DBA Press attempted to reach Brnovich by phone at his ADG office on both September 12 and 13. In both instances, DBA Press spoke with Ketchum, who advised DBA Press that she would forward requests for comment/contact on to Brnovich.
While Brnovich never responded to any of these attempts at contact, at 4:09 on the afternoon of September 16, DBA Press was contacted by ADG Assistant Director Rick Medina. In an email Medina stated:
“I received the attached email that you sent to the Arizona Department of Gaming. During his time as a public employee, Mr. Brnovich has never received any compensation from Corrections Corporation of America. […] The other questions in your email go beyond the scope of gaming regulatory issues, therefore this agency has no information regarding those topics.”
When asked to elaborate on his statement that Brnovich “has never received compensation” from CCA while serving as a “public employee”– given the fact that Medina’s scope of knowledge and ability to answer questions is limited only to the world of ADG (and not the U.S. Attorney’s Office)– Medina offered the following during a phone interview:
“People that work for the Department of Gaming are very carefully screened about their background investigations that are ongoing, even when folks are here, to confirm that they are– I don’t know how much you know about the gaming industry, but it’s a very highly regulated industry. Nobody works as a regulator, or even as an employee of a casino, without being confirmed as being appropriate to work in this industry. And one of the things that you can rest assured is that people operating here at the Department of Gaming have been checked out and cleared for this type of regulatory work– and that would certainly preclude any type of conflicts of interest [sic] […]”
But what of Brnovich’s employment record and potential conflicts of interest prior to his 2010 appointment to ADG? With regard to potential conflicts of interest stemming from Brnovich’s employment by both the U.S. Attorney’s Office and CCA during 2007, Medina stated “I really don’t have any personal information on that,” and referred further inquiry to the U.S. Attorney’s Office and CCA.
When asked if ADG had looked into this period of Brnovich’s life (2007, where the apparent U.S. Attorney’s Office and CCA overlap occurred) while conducting their screening process, Medina stated: “look, I can tell you everybody here is very carefully screened to make sure that they [can] be regulators, but as far as any details about his previous jobs or anything that he did with the federal government, those folks would be in a better position to answer those types of questions.”
As previously stated, the Office of the U.S. Attorney for the State of Arizona has refused to answer any questions relating to Brnovich’s employment, or disclosure of conflicts of interest, without a formal FOIA request. Such a request has been filed with both the Arizona U.S. Attorney’s Office and the Executive Office of the United States Attorney. No records, or other information, has been delivered per these requests.
As previously stated, neither Brnovich or CCA Senior Director of Public Affairs Steve Owen responded to multiple inquiries relating to either the nature or duration of Brnovich’s employment with CCA.
Let’s look at the rigorous screening process that Brnovich was submitted to following his nomination as ADG director in late March of 2010.
Pursuant to a public records request (per Arizona “Open Records Law,” ARS 39-121, et seq.) submitted to ADG for copies of any and all records pertaining to background checks conducted for the purpose of assessing Mark Brnovich’s suitability as an employee/director of the Arizona Department of Gaming, Medina delivered (on September 18) a grand total of three pages of documentation. This documentation consisted of: a letter (dated May 26, 2009) from then-Arizona Senate President Bob Burns to Arizona Secretary of State Ken Bennet, announcing the Senate’s approval and confirmation of Brnovich’s appointment; a congratulatory letter from Governor Brewer to Brnovich (dated May 28, 2009) notifying Brnovich of the Senate’s confirmation of his post; and a loyalty oath (signed by Brnovich on April 20, 2009) in which Brnovich pledged that he, as Director of the Arizona Department of Gaming, would support and defend “against all enemies, foreign and domestic” the constitutions and laws of both Arizona and the United States. In this oath Brnovich also agreed that, should he commit, aid or advocate “the commission of any act to overthrow by force, violence or terrorism […] the government of this state or any of its political subdivisions,” he would be discharged from office without compensation, or future compensation– including any benefits. As stout as this oath of office may be, at no point in the oath is Brnovich asked to address any past potential conflicts of interests– nor is any such information volunteered.
Beyond this rigorous ADG screening process, a confirmation hearing on Brnovich’s ADG nomination was held before Arizona Senate Committee on Commerce and Economic Development (CCED) on May 19, 2009. As part of this confirmation process, Brnovich did provide the committee with biographical data (this consisted of a two page resume. According to the office of Arizona Senate Resources, this is the sole piece of documentation pertaining to the Brnovich ADG nomination/confirmation on file with the Senate), disclosing both his past employment with CCA (dates given as “2005-2007″) and the Office of the U.S. Attorney for the District of Arizona (dates given as “2007-2009″).
During this confirmation hearing– which was conducted over the course of exactly two minutes and fifty-seven seconds (including Brnovich’s statement, questions, unanimous vote for confirmation, and congratulations)– Senators had the opportunity to ask Brnovich questions pertaining to his suitability for the position, employment history and potential past or present conflicts of interest. Only one question, posed by then-CCED Chair Sen. Barbara Leff, was asked of Brnovich during this hearing.
Leff: “The only question– I’ve been saying ‘Brnovich’ all this time. It’s ‘Brnovich’?”
Brnovich: “‘Brnovich,’ ‘Brnovich.'”
Leff: “Well, which is correct?”
Brnovich: “Well, my wife says ‘Brnovich,’ my sister says ‘Bronovich,’ I say ‘Brnovich,’ so… [laughter in the committee room shared by all…] Tomato, tomahto…”
Leff: [still laughing] “Okay, okay, thank you.”
DBA Press submitted a public records request to the Office of Governor Brewer on September 18, seeking all materials pertaining to Brnovich’s appointments (and assessments for suitability) as director of ADG and COPE. The Governor’s Office has yet to respond– in any way– to this request.