Arizona Senate president suing governor over her nominations for state offices
By Howard Fischer
Capitol Media Services
PHOENIX -- Senate President Warren Petersen is suing Gov. Katie Hobbs over what he says is her end-run around state laws giving the Senate the power to confirm -- or reject -- her picks to head state agencies.
In a new lawsuit filed Wednesday, the Gilbert Republican said state law allows a governor to choose agency directors. But he said that is conditional on Senate approval, something that has yet to be given for 13 of her nominees.
The governor, however, chose not to wait, deciding in September to withdraw the pending nominations and then have each of them reappointed as "executive deputy directors'' of those same agencies. And since each agency has no actual director, the governor contends that gives each of the deputies the same powers as if they actually were in charge -- and all without the need to get required Senate approval.
Now Petersen wants Maricopa County Superior Court Judge Joseph Mikitish to order Hobbs to send her nominations to the Senate by Jan. 12, the end of the first full week of the upcoming legislative session.
Thomas Basile, one of Petersen's attorneys, said what Hobbs is doing is illegal.
"In a fit of political pique, the governor withdrew her nominations for the directorships of 13 agencies that, by law, must be administered by Senate-confirmed appointees,'' he wrote. And Basile contends that, despite the governor's actions, the director positions "remain vacant.''
"In refusing to nominate agency directors and bypassing the Senate's advice and consent process, the governor has violated a binding statutory directive, acted in excess of her lawful authority, and failed to perform a nondiscretionary duty,'' Basile wrote, that being specifically presenting her nominees for Senate review.
The lawsuit is not exactly a surprise.
Hobbs withdrew the 13 pending nominations in September after Senate action on them stalled. And in a letter to Petersen, she accused Sen. Jake Hoffman, a Queen Creek Republican who Petersen tapped to head a new special committee to review gubernatorial nominations, of being not just "disrespectful'' to her choices but trying to "leverage the confirmation of qualified nominees for the implementation of his policy preferences within the executive branch.''
"He has contacted nominees to imply that their confirmation hinged on the rescission of long-standing agency policies over which he has no authority,'' the governor told Petersen. "He has held up the confirmation of a nomination simply for identifying as pro-choice.''
Withdrawing the nominees from consideration, the governor said, will ensure that "state government can continue to function for Arizona.''
But the Senate president, in his lawsuit, said Hoffman is entitled to do what it is doing.
It starts with the Petersen's contention that the Senate may consider any factors it wants in determining the qualifications of a nominee and not just those required by law, as long as those factors do not violate the state or federal constitutions like race, religion or gender.
More to the point, he said through his attorney, there's no legal requirement for the Senate to have a hearing or vote on any of Hobbs' choices.
"The Senate may, in its discretion, decline to hold a vote on a nominee,'' Petersen said. And he said that failure to have a vote does not automatically mean that person is confirmed.
If there is no confirmation, Petersen said, the governor is free to appoint that person as an "interim director.'' But he said state law limits that to no more than one year, after which she has to pick someone else.
Hobbs' spokesman Christian Slater said Wednesday his boss "took lawful action to fulfill her duties and ensure Arizonans can continue to rely on critical services for state agencies.'' And he lashed out at Hoffman for refusing to move forward with the nominations.
"Extremists like Jake Hoffman would rather engage in partisan attacks to push their radical political agenda than work across the aisle to support veterans, grow jobs and invest in small businesses, and protect Arizona's children,'' Slater said, referring to some of the agencies whose picks for directors have not been considered by Hoffman's Committee on Director Nominations.
"She stands ready to work with anybody in the Senate who is serious about putting the political games aside,'' Slater said.
Hoffman responded in kind.
"There's nothing extreme about protecting the citizens of Arizona from unelected, unqualified partisan hacks to seek to advance a radical political agenda instead of doing what's best for the state and its people,'' he told Capitol Media Services. And Hoffman said that Hobbs, in trying this maneuver, "has rendered every decision, new hire and operational change by her fake agency directors illegitimate and open to legal challenge.''
Much of the dispute revolves around Petersen's decision to not just create the special committee but to put Hoffman, the head of the Arizona Freedom Caucus and one of the more conservative lawmakers, in charge.
It hasn't always been that way.
Under the old system, a nominee would go to a committee with comparable expertise. This year that would have meant that the choice by Hobbs of Jennifer Toth to head the Department of Transportation would have gone to the Senate Transportation and Technology Committee.
Instead it went to Hoffman's panel. And he asked her about things like what she thought about the roles of racism in road construction decisions and of toxic masculinity in accidents.
Toth, who had been director of the Maricopa County Transportation Department, responded that it is her job to adopt the policies set out by the governor and the Legislature. And she said her feelings aren't relevant.
"This committee is here to evaluate you,'' Hoffman shot back. "And I feel that it's relevant, which is why I'm asking the questions.''
Others haven't even gotten a hearing, like Karen Peters, who had been a deputy Phoenix city manager, to head the Arizona Department of Environmental Quality. Hoffman said at the time there was "concerning information'' about her but did not specify.
So Hobbs found a work-around, withdrawing all 13 pending nominations, leaving each agency with no director. Hobbs then appointed Ben Henderson, her director of operations -- a non-confirmation position -- to temporarily head an agency.
Henderson then named the nominated-but-unconfirmed director as executive deputy director. Then Henderson quit that agency, leaving the deputy in charge, moved on to the next agency, and repeated the process for all 13 spurned Hobbs nominees.
Petersen contends this "scheme'' -- his word -- is an illegal effort to bypass what is required by state law.
The Senate has confirmed some of Hobbs' nominees. But some others were rejected after Hoffman's committee recommended against their approval.
One was Theresa Cullen, the Pima County health director, whom Hobbs had named to head the Arizona Department of Health Services.
During the committee hearing, Hoffman repeatedly berated her and the actions she had taken in Pima County during the height of the COVID pandemic, like an overnight curfew and masking requirements. Cullen said she was simply advising county supervisors who made the final decision.
Hoffman took after her about the closing of schools, brushing aside her claims that those calls were made by district officials.
"Under your guidance, they (students) suffered innumerable harm in terms of lack of proficiency in school, academic scores falling, socialization being reduced, depression, suicide,'' he said. And Hoffman said it turned out that children were the least likely to suffer the worst effects of the virus.
Cullen defended her actions, saying she was not only erring on the side of protecting children but also trying to keep them from bringing the virus home to more vulnerable adults.
Jennie Cunico now runs the agency with the title of director -- for the time being. Her name had not been sent to the Senate by the time Hobbs withdrew the others.
The committee also recommended that Joan Serviss, the governor's pick to lead the state housing department, not be confirmed largely due to accusations that she is a serial plagiarist. That was based on findings that, in her role as head of the Arizona Housing Coalition, she wrote letters where she copied large swaths of the language from others and signed her name but didn't give attribution to the source material.
Serviss and some who testified on her behalf said it is a common practice for advocacy groups to use the same language. But Hoffman and the other Republicans on the committee said they felt that Serviss crossed a line.
With no vote by the full Senate, that left Serviss in political limbo. So she was one of the names that Hobbs withdrew from consideration, with Serviss now serving as the agency's deputy executive director.
There was an indication, as recently as two weeks ago, that litigation might be avoided, with Petersen saying there had been talks. Hobbs, asked about that, would respond only that she was "disappointed'' the Senate president shared that fact.
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