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Arizona DPS sues fingerprint board over accused child molester’s card

(Photo by George Frey/Getty Images)

PHOENIX – The Arizona Department of Public Safety is suing another state agency to keep an accused child molester from getting a fingerprint clearance card that would allow him to work with kids.

DPS Director Col. Heston Silbert filed a lawsuit last week against the Arizona Board of Fingerprinting, which gave a clearance card exemption to Brett James Smith, who has been arrested multiple times and been incarcerated in Illinois and Indiana.

“He’d been arrested no less than, that we know of, 10 times, for crimes involving inappropriate touching and interactions with children, up to and including child molestation, and had actually done some jail time over it,” Silbert told KTAR News 92.3 FM’s The Mike Broomhead Show on Wednesday.

DPS had initially denied the clearance, but the board issued a good cause exception.

The lawsuit, which details the 37-year-old Smith’s criminal history, asks for the exception to be overturned and for the board to hold a new hearing.

It says Smith, who has changed his name from Brett James Zagorac, has been solicited private tutoring services in Gilbert and Chandler.

“He violated court orders and moved to Arizona and changed his name from what was a unique last name that was very easily searchable, which is how parents would figure out who he was. … He would give them a false name to tutor their children privately or to teach,” Silbert said.

DPS rejected his application as Zagoroc for fingerprint clearance in 2018, according to the lawsuit, and the board denied his application for a good cause exception in 2018.

He applied again in 2019 after changing his name and again was denied by DPS.

However, according to the DPS lawsuit, an administrative law judge appointed by the Board of Fingerprinting recommended approval of Smith’s subsequent application for a good cause exception, and the board adopted it in January of this year.

The lawsuit lays out the argument that the judge didn’t apply the law properly in the case. Silbert said it’s possible the board didn’t have all the information at their disposal when they approved the exemption.

Silbert said it would be “a gross exercise of authority” to give Smith a clearance card. He also said he is now being sued by Smith’s attorney because he won’t sign off on the exception.

“I was told that I needed to sign the card … but as director of the Department of Public Safety I always say ‘refer to our patch on the side where it says public safety.’” Silbert said.

“I have a responsibility to the citizens of Arizona, and certainly to the children of Arizona, to do my very best to ensure they’re safe.”

Silbert said his department had to hire outside counsel to file the lawsuit against the board because both agencies are represented by the Arizona Attorney General’s Office.

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