John Kavanagh “cops” to quid pro quo aka Something for Something — UPDATED 9/22/14

Cross posted from the Arizona Eagletarian

In tennis, it’s called an unforced error. During Tuesday night’s Tea Party forum in Fountain Hills, the question came from the audience. Somebody wanted to know about each candidate’s major campaign donors. It was a showdown between LD23 candidates for the Arizona Senate, Rep. John Kavanagh (R-Private Prison Industry), and his challenger Paula Pennypacker D-Scottsdale.

Kavanagh answered first and was apparently quite animated, proud of what he had done for a (NON LD23) citizen intervening with the Arizona Department of Revenue so that a “cigarette distributor” would no longer be required to pay for tax stamps up front.

Well the grateful “cigarette distributor” was really an online firearms dealer, Brad DeSaye, owner of J&G Sales in Prescott.

While writing last night’s blog post, I discovered that Kavanagh told the forum audience on Tuesday night that he had intervened with the Arizona Department of Revenue on behalf of “the cigarette distributor” whose small business would have failed if Kavanagh had not intervened.

Kavanagh did not name names but did say he had only received ONE donation of $2,000 from an individual. That made it easy to determine that he must have been referring to DeSaye. But in his campaign finance report, Kavanagh failed to fully identify DeSaye.

16-924 A. Unless another penalty is specifically prescribed in this title, if the filing officer for campaign finance reports designated pursuant to section 16-916, subsection A has reasonable cause to believe that a person is violating any provision of this title, except for violations of chapter 6, article 2, the secretary of state shall notify the attorney general for a violation regarding a statewide office or the legislature, the county officer in charge of elections shall notify the county attorney for that county for a violation regarding a county office or the city or town clerk shall notify the city or town attorney for a violation regarding a city or town office. The attorney general, county attorney or city or town attorney, as appropriate, may serve on the person an order requiring compliance with that provision. The order shall state with reasonable particularity the nature of the violation and shall require compliance within twenty days from the date of issuance of the order. (emphasis mine)

16-915. Contents of campaign finance reportsA. Each campaign finance report required by section 16-913 shall set forth all of the following: …

3. The identification of each:

(a) Individual who makes any contribution during the period covered by the report and whose total contribution or contributions for that election have an aggregate amount exceeding fifty dollars together with the date and amount of the contributions, except as provided in subsection E of this section. Contributions of fifty dollars or less may be aggregated. …

“Identification” is defined in 16-901.

12. “Identification” means:

(a) For an individual, his name and mailing address, his occupation and the name of his employer.

So from June 30, 2014 until now (so far), despite him having claimed that he updated his report, John Kavanagh was in violation of disclosure requirements on his campaign finance reports. He will, of course, claim it was just a clerical error. But when he is in apparent violation of ARS 13-2602 A. (a Class 4 felony) also, it hardly seems insignificant that he would fail to disclose the identification of the source of his $2,000.00 donation.

From American Friends Service Committee, on March 31, 2014:

“When elected lawmakers bestow gifts of taxpayer funds on companies that give them campaign contributions, members of the public must wonder whether there is a quid pro quo arrangement and if legislators are acting in the best interest of the public or protecting the special interests of their corporate donors,” said Alex Friedmann, associate director of the Human Rights Defense Center and an expert on prison privatization.

This is not the first time that Rep. Kavanagh has gone to bat for for-profit prison corporations in Arizona. In 2011, after the Arizona Republic reported that a state statute requiring biannual quality comparisons of public and private prisons had not been enforced, the American Friends Service Committee (AFSC) sued the state, forcing the Department of Corrections to pull an RFP for 5,000 private prison beds. The following year, Rep. Kavanagh inserted a provision during the state budget process that repealed the quality comparison statute.

In other words, the appearance of impropriety, of something for something, is glaring.

In the account Kavanagh gave Tuesday, it wasn’t a government contract, but intervention to delay collection of state taxes specifically to benefit a donor. Given that DeSaye sells firearms online, one can’t help but wonder if Kavanagh’s intervention wasn’t about getting DOR off of DeSaye’s back altogether.

By Law Professor Bennett L Gersham,

To prove bribery, the Supreme Court has held that “payments are made in return for an explicit promise or undertaking by the official to perform an official act.” Thus, in each of the above cases a prosecutor must prove — and a jury must find beyond a reasonable doubt — that there was a corrupt exchange, namely, that a benefit was given in exchange for something received. This element in legal parlance is called the “quid pro quo.” And it is a concept that is notoriously ambiguous, treacherous, and dangerous.

That Kavanagh would brazenly describe his sale of favors to campaign donors is not as surprising as it should be — for anyone who knows Kavanagh, that is. In the wake of the $900,000 open mouth kiss he wanted to bestow on private prison operators in the 2015 Arizona state government budget, Kavanagh adamantly stated — on camera — that he believed it was completely justified.

At this time, however, we may be talking about criminal charges because while there appears to be prima facie evidence to demonstrate that Kavanagh betrayed his legitimate constituents.

Arizona’s criminal code states:

13-2602. Bribery of a public servant or party officer; classification A. A person commits bribery of a public servant or party officer if with corrupt intent:

1. Such person offers, confers or agrees to confer any benefit upon a public servant or party officer with the intent to influence the public servant’s or party officer’s vote, opinion, judgment, exercise of discretion or other action in his official capacity as a public servant or party officer; or

2. While a public servant or party officer, such person solicits, accepts or agrees to accept any benefit upon an agreement or understanding that his vote, opinion, judgment, exercise of discretion or other action as a public servant or party officer may thereby be influenced.

So, it appears that BOTH Brad DeSaye AND John Kavanagh have committed Bribery of a public servant.

To put the severity of the crime into perspective, other Class 4 felonies include:

A class 4 felony dangerous offense would involve the discharge, use, or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.

This, of course, while injurious to the public morality and to the ability of state government to provide necessary services, is not the same as if these two characters had pointed any of the weapons in DeSaye’s inventory at anyone and threatened them. This is much more subtle.

DeSaye has also been in the news in Prescott for a land use controversy on his 380-acre ranch. By the way, DeSaye apparently bragged to the NRA that he had built a gun range, while telling a Yavapai County hearing officer that it was only a wild rumor.

Given that DeSaye has plenty of cash to lavish on lawyers and his favorite lawmakers, I have to figure he will claim he did nothing wrong in this case.

Nevertheless bribery of a lawmaker is a massive betrayal of the public trust. LD23 voters must put a stop to Kavanagh’s self-servative political career and elect Paula Pennypacker.

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UPDATE UPDATE UPDATE

I have learned additional information about Kavanagh’s $2,000 donors and clarified the situation in a new blog post today. You can find that post on the Arizona Eagletarian. While Brad DeSaye DID send Kavanagh a check for $2,400,
we do not know what Kavanagh may have done or promised in return.

There was a cigarette distributor who was apparently the beneficiary of Kavanagh’s arm twisting at the Department of Revenue.