Gov. Ducey has a pattern and practice of abuse of authority

Earlier this year, The Republic’s Laurie Roberts went there: Arizona governor is a ‘dictator’:

Given his unfortunate (fortuitous?) name, the obvious choice is to borrow Benito Mussolini’s Il Duce [eel doo-chey; “the leader”] for Ducey’s dictator name. Now if the cartoonists will please follow up on this.

Laurie Roberts writes, Is Doug Ducey a governor or a dictator?:

Let’s see, Gov. Doug Ducey got elected with the help of dark money and he’s surrounded himself with dark-money supporters, some of whom are now operating as his political muscle.

He pushed his budget through the Legislature like a bullet train and has announced that he doesn’t need legislation to begin work on his $24 million plan to help private charter-school operators expand their businesses.

Now that the time for public hearings has passed, he suddenly wants to dissolve the Department of Weights at Measures. And oh yeah, he wants Republican legislators, still in full-blown honeymoon thrall, to give him a secret police force.

I fully expect Ducey to come out any day now wearing a general’s uniform with a lot of braid and shiny medals.

All around the Capitol, people are whispering and wondering what the heck is going on with Ducey and his top advisors.

What the heck is going on, indeed. There is a clear pattern and practice of asserting extra-constitutional authority and abuse of the powers of the governor’s office emerging.

In February, Governor Ducey fired Charles Flanagan, the head of the new Department of Child Safety, and replaced him with Greg McKay, the Phoenix police detective tapped several years ago to oversee state investigations of criminal child abuse reports at CPS. Again, Laurie Roberts: Flanagan fired amid question: Is DCS the new CPS? “Flanagan said he was given no reason for his dismissal . . . Lots of questions about what is going on here.”

Also in February, Governor Ducey intervened in a dispute between Superintendent of Public Instruction Diane Douglas and the Board of Education, reversing her decision to fire two employees. Ducey, Douglas engage in public spat over board firings. It turns out that neither the governor nor the Superintendent have any constitutional authority to hire and fire employees of the Board of Education, that is the prerogative of the Board.

A bill introduced to “clarify” the powers of the Governor and Superintendent over employees of the Board of Education died in the legislature, and remains unresolved. Ducey-Douglas compromise bill dies. Recently, a new Board of Education dispute has arisen. Arizona Board of Education relocates amid dispute with Schools Chief. There will be lawsuits!

Then there is the tax exemption bill that Governor Ducey vetoed, but then ordered the Department of Revenue not to collect the back taxes owed by these “special interests.” The Republic’s Robert Robb said, Ducey oversteps with state agency orders:

For reasons that are difficult to fathom, Ducey vetoed a bill that made it clear that the state sales tax doesn’t apply to crop-dusting planes and charter aircraft. Despite the veto, he instructed the Department of Revenue not to collect the tax or pursue “any future and ongoing enforcement efforts.”

That means that Ducey is ordering DOR not to collect $700,000 in past taxes from a specific company, Papillon Helicopters, even though the Court of Appeals has ruled that it is owed.

Robb, per usual, had a few more complaints about Governor Ducey’s executive overreach, including Gov. Ducey’s edict to the Department of Child Safety to treat same-sex married couples the same as heterosexual ones regarding adoptions and foster care,  and his letter to the director of the Department of Gaming suggesting that he tell the Tohono O’odham tribe that he would not approve state licenses needed to operate its Glendale casino.

A lot of state government consists of administrative agencies applying laws and regulations to individuals and individual organizations. There’s a huge body of administrative law to make the process fair and transparent. It’s not appropriate for a governor to reach into the administrative processes in individual cases and dictate outcomes, irrespective of how high the stakes.

Which brings me full circle to the Laurie Roberts lede above:

Speaking of full-speed ahead, Ducey last week popped out a surprise proposal to break up the Department of Weights and Measures. That’s the agency that ensures that a gallon of gas is really a gallon of gas and that the pound of hamburger you pay for really is a pound. You don’t hear much about the agency because it does a decent job.

On Wednesday, Ducey proposed eliminating Weights and Measures and farming out its duties to other state agencies. By Thursday, the bill had already had the one and only public hearing it’ll get.

While he was busy killing off Weights and Measures, Ducey was also creating his own secret police force. The new Inspector General’s Office, we are told, will keep an eye out for fraud and waste.

You know, like the Attorney General’s Office does?

Under Ducey’s plan, the new IG would be “a law enforcement agency that confers all investigative powers and privileges appurtenant to a law enforcement agency under state law.”

Inspectors will carry badges, have subpoena power and report directly to the governor. And oh yeah, as proposed, their work will be confidential.

“A political appointee who reports to politician boss & has police powers to conduct secret investigations,” tweeted Republican Scott Smith, who ran for governor last year. “What could possibly go wrong?”

What went “wrong” is that Il Duce Gov. Ducey failed to get legislative approval for his secret police Blackshirts. He is still negotiating a bill with legislative leaders for the next legislative session. Given his track record so far, they would be damn fools to give him a secret police force to abuse the powers of his office any further.

And finally, about that weights and measures bill. This is back in the news over the weekend as well. Governor Ducey was bragging before the Republican National Committee meeting in Phoenix on Friday about his anti-regulation cred. Howard Fischer reported, Ducey: Firing forestalled sting on Uber, Lyft:

Ducey, boasting of accomplishments of his administration to a national Republican leadership meeting, said that shortly after he took office he interviewed Shawn Marquez, director of the Department of Weights and Measures.

Against a backdrop of the Super Bowl coming to Arizona, Ducey said Marquez told him, “I’m going to run a sting on Uber and Lyft and shut them down,” having undercover officers cite drivers for both companies who were not in compliance with the same background checks and insurance coverage required of traditional taxi companies.

That, Ducey said, did not comport with his views of the role of government.

“I’m happy to tell you that that director is now in the private sector,” he told his audience at the spring meeting of the Republican National Committee.

After firing Marquez, Ducey appointed former House Speaker Andy Tobin to run the agency and directed Tobin not to enforce the taxi laws against Uber and Lyft drivers while legislators looked for a fix.

* * *

The governor, however, did not dispute that the laws in effect at the time, which Marquez was seeking to enforce, did apply to anyone offering rides for money.

The agency was already citing Uber and Lyft drivers for operating a ride-for-money service outside the law last year, before Ducey took office.

* * *

It took several more months for lawmakers to actually approve a measure which provided parallel but somewhat different laws to govern the ridesharing services and the people who drive for them.

Speaking to reporters afterwards, the governor said the firing was justified.

Actually no, it is not. Assuming Gov. Ducey’s version is true (see following), the Director of Weights and Measures. Shawn Marquez, was simply doing his job as authorized by Arizona law at the time. The governor is saying that he fired Marquez to prevent him from performing his job as authorized by law. That is a wrongful termination claim in my view.

There is just one problem with Gov. Ducey’s braggadocio before the RNC, however. Shawn Marquez says it never happened. The Arizona Capitol Times (subscription required) reports, Ducey says he fired agency head over sting; director denies it:

Speaking to a luncheon at the Republican National Committee’s spring meeting at the Phoenician resort, Governor Ducey described the previously undisclosed reasons for the dismissal of interim director Shawn Marquez. Ducey replaced him with former House Speaker Andy Tobin in late January.

Marquez denied that he planned to shut down the companies or that he made any such comments to the Ducey administration.

* * *

[The] director said, “Let me tell you what I’m going to do. The Super Bowl’s going to be played here in Arizona in a few short weeks, and I’m going to run a sting on Uber and Lyft and shut ‘em down,” Ducey said.

The governor added, “Well, I’m happy to tell you that that director is now in the private sector.”

But Marquez claimed Ducey’s story isn’t true. In an email obtained by the Arizona Capitol Times, Marquez said he had no plans to shut down Uber or Lyft with stings during the Super Bowl.

“There were no planned stings to shut down uber or lyft during the Super Bowl at all, that is a straight up lie. Not even close to the truth,” Marquez said in the email. “The department never had ‘shut down’ powers thus never planned on shutting Uber or Lyft down.”

So Governor Ducey fired Marquez to make room for one of his political cronies, Andy Tobin.  That makes it better – not! And like suspending the collection of a lawful judgment for back taxes above, the governor was acting without any legal authority to suspend enforcement actions against Uber and Lyft:

Several days after becoming director, Andy Tobin announced that the Department of Weights and Measures was ending all proceedings against ride-sharing companies.

The governor said the suspension of enforcement actions against the ride-sharing companies was aimed at reducing regulations and encouraging entrepreneurial businesses. He also said it was necessary to ensure adequate transportation services during the Super Bowl, which was held in Glendale on Feb. 1.

* * *

In April, Ducey signed HB2135, which created separate laws and regulations for ride-sharing companies, allowing Uber and Lyft to operate legally without meeting the same qualifications as traditional taxis. The new law will go into effect on July 3.

So what is Governor Ducey’s justification for his pattern and practice of abusing the powers of his office in excess of his constitutional authority, and behaving like a dictator?

After his RNC speech, Ducey defended his decision to essentially fire an agency director for planning to vigorously enforce laws that were on the books.

“We’re looking to drive effective, efficient policy through government. We’re not looking to shut businesses down. We’re not looking to sting or surprise companies,” Ducey told reporters. “What we’re not going to have are overly aggressive regulators who are going beyond the scope of authority to hurt innovative, entrepreneurial, new ideas in Arizona. And you can see it with Uber. You can see it with Lyft.”

Well Governor, Arizona has a number of Boards and Commissions whose statutory duty is consumer protection. Are you going to order these boards not to enforce consumer protection laws in the name of your anti-regulation zealotry?

Are you going to order Attorney General Mark Brnovich to shut down the AG’s consumer affairs division?

Are you going to order the Corporation Commission to stop enforcing its regulatory functions over corporations?

Where does your willingness to violate the law and to exceed the constitutional authority of your office end, Governor?

Il Duce was last seen erecting signs along Arizona’s highways that say “Welcome to Arizona ~ Caveat Emptor!“