Response to the Tea-Publican talking points on the AIRC

Posted by AzBlueMeanie:

State Rep. John Kavanagh (R-Fountain Hills) posted this comment to my post Arizona's Open Meeting Law and the AIRC:

Attorney General Tom Horne's court filing, which was an attempt to get answers from the IRC members details far more than a technical violation of the law." If the testimony from other commission members that he details in the report is true, then the chairwoman and one or two other commissioners violated the heart and soul of the open meeting law, not to mention possible bid rigging on the part of the chairwoman. To read the attorney general's filing, go to:

To hear more details on my points, go to:

Personally, I am surprised that most Democrats are being so defensive of such abhorrent behavior.

Let's begin with Kavanagh's interview on Horizon, in which he at one point states there is "criminal activity" for an alleged quid pro quo between Chairman Colleen Mathis and other commissioners for their votes for the mapping firm Strategic Telemetry, in violation of Arizona's Open Meeting law.

As Kavanagh knows (he is a professor of criminal justice at Scottsdale Community College), Arizona's Open Meeting law is a civil statute that provides for civil remedies for any violation of the statute. 38-431.07 – Violations; enforcement; removal from office; in camera review. It is not a criminal statute. Nor does Attorney General Tom Horne allege in his Petition for Enforcement of Written Investigative Demands any criminal law violations. The Petition is simply his attempt to investigate an alleged violation of the Open Meeting law.

Kavanagh's assertion of "criminal activity" on Horizon is knowingly misinforming and misleading the public in an effort to prejudice public opinion against the Arizona Independent Redistricting Commission and Chair Colleen Mathis in particular. His conduct is irresponsible.

But let's assume arguendo for a moment that there were criminal charges pending against Colleen Mathis. Tea-Publicans like to beat their chests and loudly proclaim that they are "constitutionalists." Kavanagh is a professor of criminal justice at Scottsdale Community College, so one might expect this "constitutionalist" to be a vocal advocate for the rights of the accused under the Bill of Rights and insist upon constitutional due process. You know, innocent until proven guilty in a court of law.

But Kavanagh does not express any reservations about the Governor acting as complainant, prosecutor, judge and jury, dismissing Colleen Mathis from the Commission without any due process of law by executive fiat. This is not the American system of justice. It is a gross abuse of power.

House Minority Leader Chad Campbell refutes each of the Tea-Publican talking points that Kavanagh asserts during this Horizon interview. I do not see how this helps his case.

Attorney General Tom Horne's Petition for Enforcement of Written Investigative Demands, briefly summarized, alleges that:

– Chair Colleen Mathis spoke to Commissioners to "line up" votes for Strategic Telemetry

– Chair Colleen Mathis had prepared a written statement regarding the selection of Strategic Telemetry

– Chair Colleen Mathis told Republican Commissioners Stertz and Freeman that she would like a 5-0 vote for Strategic Telemetry, and they alleged that Mathis said "you may need my vote in the future."

– Commissioners Mathis, Herrera and McNulty each gave Strategic Telemetry perfect scores of 100 on their scoring sheets

– Commissioners Mathis, Herrera and McNulty failed to respond to the AG request for information

The Petition is filled with speculation and conjecture that draws assumptions based upon facts not in evidence. After all, the Petition is seeking access to testimony and evidence to determine whether or not a violation of the Open Meeting law has occurred.

The chief "evidence" the AG relies on is self-serving testimony from the two Republican Commissioners, Scott Freeman and in particular, Richard Stertz. The veracity of Mr. Stertz is in serious doubt given his own questionable conduct. Complaint filed against AIRC Commissioner Richard Stertz, and More about AIRC Commissioner Richard Stertz.

Stertz is Tea-Publican congressional candidate Jesse Kelly's "embed" commissioner on the Commission. Stertz has used the radio program he does with Jesse Kelly to encourage Tea-Publicans to come to Commission hearings and to actively undermine the Commission on which he serves with Tea-Publican talking points. (During the first round of public hearings, one teabagger after another demanded that Chair Colleen Mathis resign reading from the talking points distributed by Tea-Publican activists). If you want to discuss "gross misconduct," let's begin with a discussion of Richard Stertz.

Kavanagh does not acknowledge that the Arizona Independent Redistricting Commission has filed a counter-claim to the AG's Petition for Enforcement of Written Investigative Demands, asserting attorney-client privilege and legislative privilege. The Arizona Supreme Court has held that the Arizona Independent Redistricting Commission is a quasi-legislative body that enjoys legislative privilege in some instances. Arizona Independent Redistricting Commission v. Fields, 206. Ariz. 130, 75 P.3rd 1088, 1095 (2003). The Attorney General concedes as much in his Petition.

This is a question of law properly before a court of competent jurisdiction to decide. Under constitutional separation of powers, it is not a matter for the executive branch or legislative branch to decide as a trier of fact and law. It was improper interference with the judicial branch for the executive branch and the legislative branch to insert itself into this matter.

As for the core contention that Colleen Mathis "lined up" votes in violation of Arizona's Open Meeting law, Mathis did in fact respond to the Governor's request for information (which parallels the AG's Petition), expressly denying the allegations, and provided an explanation:

I understand that Commissioners Freeman and Stertz implied to the Attorney General that I attempted to persuade them to vote in favor of Strategic Telemetry. I adamantly dispute this characterization. From my perspective, the conversations we had were clear. In my dual role as both Chair and Agency Chief Procurement Officer, I was obligated to pursue consensus among the Commissioners as I hoped the Commission could comply with the state Procurement Office's standard protocol requiring a consensus contract award decision. I also viewed achieving consensus on a mapping consultant vendor that might be, as important for instilling public confidence in our process.

In fairness to Commissioners Freeman and Stertz, they likely knew my thoughts on Strategic Telemetry, based upon discussions that occurred in Executive Session. This may have given them the impression I was seeking their vote for Strategic Telemetry. Unequivocally, I was not. I did not know how any of the other Commissioners would vote. In addition, there was never any quid pro quo, nor did I ever make any attempt to coerce, buy or rig any bid vote.

Whether or not you or I or anyone else accepts Colleen Mathis' characterization of events is irrelevant. This is a matter properly before a court of competent jurisdiction to decide. Under constitutional separation of powers, it is not a matter for the executive branch or legislative branch to decide as the trier of fact and law. It was improper interference with the judicial branch for the executive branch and the legislative branch to insert itself into this matter.

Much has been made of the fact that Prop. 106 permits the Governor to remove a Commissioner with the consent of two-thirds (2/3) of the Senate. The core allegation made by the Governor and the AG is a violation of the Open Meeting law. Under rules of statutory construction, those two provisions of law must be read together in harmony. The proper interpretation is that when a court of competent jurisdiction has rendered a decision that there has been a violation of the Open Meeting law, the Governor may give written notice to the Commissioners to respond to the removal process under Prop. 106. In this case, it was ready, fire!, aim — the Governor did not have any judicial determination that there had been a violation of the Open Meeting law.

Whether an Open Meeting law violation rises to the level of "gross misconduct" or "substantial neglect of duty" is dubious at best under a long line of common law precedents. It is not "whatever I say it is" as Sens. Andy Biggs and Russell Pearce have publicly asserted. As Commission attorney Mary O'Grady said in pleadings, Governor cuts off legal funding for ousted Arizona redistricting panel's chair – East Valley Tribune:

[T]there is no conceivable way that any of Mathis' actions fit either definition.

"This strange logic is applicable only in the world through the looking glass,'' O'Grady wrote, quoting from "Alice in Wonderland'': " 'When I use a word,' Humpty Dumpty said in a rather scornful tone, 'it means just what I choose it to mean — neither more nor less.' ''

And as Mathis' attorney Paul Charlton said, » IRC attorneys: Mathis’ removal an unconstitutional exploitation of power – Arizona Capitol Times (subscription required):

[T]he IRC’s attorneys claim that although Mathis was removed for “gross misconduct” and “substantial neglect of duty,” on Tuesday, those terms have more meaning than just what the Governor and 20 Senators say they mean.

“These constitutional provisions are not mere placeholders for whatever the Governor deems them to mean,” the petition states. “‘Substantial neglect’ requires the failure to act with even the slightest degree of care, and ‘misconduct in office’ generally refers to the common-law misdemeanor of malfeasance, misfeasance or nonfeasance in office.”

As for Governor Brewer's other assertions regarding Prop. 106 mapping criteria, the fact of the matter is that the Commission is presently working from "draft" maps. Final maps have not been adopted and submitted to the Department of Justice for Voting Rights Act preclearance. Once again, the Governor and legislature acted prematurely and unlawfully.

An excellent point made by Commission attorneys in their amended pleading, Ariz. redistricting panel claims Brewer power grab:

The commission's amended lawsuit said Brewer's opinion that the commission's draft maps "are not legal is nothing short of a claim that the removal provision, despite its limiting language, is actually a reconstituted veto power" under the 2000 initiative. The commission argued that such power was intentionally stripped from the governor under the measure.

If Brewer or anyone from the Senate has problems with the Commission's maps, the proper way to handle those complaints is through court action, but only once the final maps are completed. That will now be delayed fue to their unlawful action.

In any event, this constitutional crisis is now before the Arizona Supreme Court and briefings are due this coming week.

The point I made in my original post remains true. A violation of the Open Meeting law has never resulted in the removal of an elected official in Arizona, to the best of my knowledge. If a violation occurs, you pay the $500 fine and maybe attorneys fees and costs. The Commission may then ratify the nullified action in a subsequent open meeting. For all this sturm and drang over Strategic Telemetry, nothing is going to change the fact that they have a valid contract to do the mapping for the Commission.

UPDATE: Rep. John Kavanagh misrepresents comments by Sen. David Shapira in his comment below. I am posting the video of Sunday Square Off for readers. It is the opening segment.