CASUAL CONFLICTS

ARIZONA LAWMAKERS OPERATE UNDER A SYSTEM INCAPABLE OF STEMMING CONFLICTS OF INTEREST.

In March 1989, freshman Representative Robert "Bob" Burns, Republican-Glendale, was better known at the Arizona State Capitol as a lobbyist than as a lawmaker. Before his election to the House of Representatives, Burns, who then owned two child-care centers in the Valley, had been a ferocious advocate for the Arizona Child Care Association. He verbally pummeled anyone who pushed for tougher standards on private day care.

So when the issue arose about whether Burns should cast votes on legislation that directly affected the child-care industry--and his livelihood--Republican leadership suggested he consult the House Ethics Committee.

Erring on the side of caution, the Ethics Committee told Burns to recuse himself from the votes in question. Burns complied. But committee members made it clear that their decision in no way set a precedent for Burns or for any other member. In fact, the Ethics Committee members vowed they would reconvene to clarify the rules regarding conflicts of interest as soon as possible.

Fast-forward five years--past the Keating Five- and AzScam-fueled frenzy over legislative ethics--to the spring of 1994. Burns still owns a day-care center, and he's still considered more lobbyist than lawmaker.

Only now he's ascended to the helm of the powerful House Appropriations Committee.

"He's not only in the position of casting a vote, he is also in the position of determining whether a proposal moves forward that would provide money or would not," says House Minority Whip Debbie McCune-Davis, Democrat-Phoenix.

During the recently concluded legislative session, Burns did just that by refusing to hold hearings for the wildly popular Success by Six bill, legislation that would have appropriated almost $100 million for prenatal care, immunizations, child-abuse-prevention programs and preschool for poor children.

The bill had bipartisan support, with 59 sponsors in the House and the Senate and Governor Fife Symington's blessing, but as chairman of the Appropriations Committee, Burns had the power to stop the bill dead. Which he did. And while he insists to this day that his conscience--not his or others' day-care dollars--provoked his opposition, private day-care centers may well be winners in the end.

And not just with regard to the latest version of Success by Six. In discussions about a myriad of children-related bills this session, Burns "would interject issues regarding the private day-care centers . . . constantly," McCune-Davis says.

"To me," she concludes, "once he was elected, he should have stopped his lobbying behavior--not lobbied from inside the institution."
Burns is still waiting for the House Ethics Committee to reconvene (although he doesn't intend to request that it do so), and until it does, he says he sees nothing wrong with using his Appropriations Committee post as a bully pulpit for his favorite cause.

And while his lobbying on behalf of private day care--particularly in last spring's session--has at times left his opponents marveling at Burns' chutzpah and has made even his allies blush, he's most likely right when he says he's done nothing wrong. Legally wrong, that is.

@rule:
@body:Ironically, Bob Burns' position is strengthened by a law passed unanimously in 1992 by the Arizona State Legislature. The law was intended to tighten the conflict-of-interest reins on legislators in the wake of AzScam--the political-corruption sting in which lawmakers took bribes in exchange for their support of casino gambling. AzScam had nothing to do with professional conflicts of interest, but it brought an overall recognition of ethical dilemmas to the statehouse.

Under the law, state legislators are now included in a list of public officials who can be subjected to criminal and civil penalties for knowingly or unknowingly engaging in a conflict of interest.

But the law also defines conflict of interest so narrowly that it effectively exempts lawmakers under just about any conceivable scenario. To have a conflict, a legislator must belong to a group of less than ten people that would benefit directly by the law. For example, a public schoolteacher can vote for pay raises for schoolteachers, because more than ten people would be affected. If a bill pertained solely to, say, four science teachers at Central High School, a legislator who also happened to be a science teacher at Central High would be obliged to abstain from voting.

That means Burns, who is one of 1,500 licensed day-care providers in the state, isn't in violation of the law when he acts on legislation relating to day care.

Nor are the following legislators, just a handful of those who tried this year to get legislation passed that directly relates to their private interests:

ù Senator Lester Pearce, Republican-Mesa, a landlord, who sponsored legislation to make it much easier for landlords to evict tenants.

ù Representative Lisa Graham, Republican-Scottsdale, who sponsored a bill that would have licensed speech pathologists and audiologists, requiring them to have master's degrees. She is a speech pathologist with a master's degree.

ù Senator Carol Springer, Republican-Prescott, who sponsored a bill to eliminate locally assessed property taxes, which would--in her own words--make homes more affordable. She is the proprietor of Prescott-based Springer Realty Inc.

ù Senator Gus Arzberger, Democrat-Willcox, a rancher, who successfully co-sponsored a resolution that will ask the voters to amend the state's constitution to offer a tax exemption on livestock.

Landlord, speech pathologist, realtor, rancher--none is in a class of ten or less. And yet each stood to gain from the passage of the bill he or she brought before the legislature.

Who needs AzScam, asks Dana Larsen, chairman of the board of Arizona Common Cause, when nests can be feathered--legally--on a daily basis?

"I think the way the system works, it doesn't take that kind of overt bribery. And the rules are lax enough where people do vote in their financial interest," he says.

When questioned about possible conflicts of interest, lawmakers are lightning-quick to point out that they have no conflicts--under the law. Further, they say, they shouldn't be hampered in their abilities to represent the people.

"If we're gonna get the full benefit of the citizens' legislature, we need to have the people with the expertise to speak out," Bob Burns says.

And so our citizens' legislature is left to police itself, each member to make the judgment call on his or her behavior. The results vary crazily. For example, Senator Matt Salmon, Republican-Mesa, an employee of U S West Communications, recused himself from voting on an omnibus tax bill that included a break for utilities, while Senator John Huppenthal, Republican-Chandler, and representatives Art Hamilton and Chris Cummiskey, Democrats-Phoenix--who have financial links to Salt River Project (Huppenthal and Hamilton are employees of the company; Cummiskey's wife works for SRP)--voted on the legislation.

Who was wrong? Nobody, technically. Salmon is allowed to ask for the excuse, and because they are part of a large class of utility workers, neither Cummiskey nor the SRP employees is breaking the law.

The difference is that Salmon, a candidate for Congress, has a heightened awareness of the perception of conflicts.

Dana Larsen says Arizona's conflict-of-interest law makes no sense. "The rules are so vague and so flexible that you could drive a truck through them," he says.

But on a national scale, Arizona's government-ethics laws measure up just fine, says William Pound, executive director of the National Conference of State Legislators. Pound maintains that Arizona's conflict-of-interest law doesn't need to be tougher; instead, the burden to ferret out conflicts rests with the media and the public at large.

"I'm not sure there is any really good way to enforce it [a standard for conflicts of interest]. I'm not sure there should be, other than the electorate--you know, the ballot box," he says.

Apparently, that's what it will take, because in Arizona, most conflicts stay in a rumor mill exclusive to legislators, lobbyists and staff. Staff and lobbyists don't want to upset members, for obvious reasons. And lawmakers are prohibited from grousing about one another in public, unless they're willing to file a formal ethics complaint.

Sometimes, however, conflicts do make news. Then-Senate president Pete Rios, Democrat-Dudleyville, handed headlines to the daily newspapers in 1992 when he announced his intention to sponsor legislation that would benefit his wife, a school nurse. He acknowledged the appearance of impropriety, but said the public good was worth any flak he might take.

Gloria Rios, a nurse with the Apache Junction Unified School District, actually quit her job in the wake of a media-inspired uproar about the perceived conflict of interest. Her husband read her dramatic resignation letter on the floor of the Senate. The legislation, which allowed nurses with two- or three-year degrees to work as full-time school nurses without a four-year bachelor's degree, passed.

And, yes, Pete Rios admits, his wife returned to work the next fall.
Rios' case was an exception to the rule. More often than not, conflicts go unreported. Consider, for example, a bill crammed through the system last year by House Majority Leader Brenda Burns, Republican-Glendale (no relation to Bob Burns). This legislation, which expanded the scope of practice for optometrists, benefited Burns' husband--an optometrist--just as directly as Rios' bill benefited his wife. Yet the public never learned of her conflict.

When optometrists finally won their decadelong battle in 1993, the Arizona Republic dutifully listed campaign contributions made by the optometry industry to supporters of the legislation.

But in attempting to draw the conclusion of influence, the state's largest daily overlooked the obvious: Brenda Burns, who fought for the optometry expansion behind the scenes and who cast her vote in favor on the House floor, is married to an optometrist. Not surprisingly, Brenda Burns also topped out the Republic's list of optometric contributees.

The legislation, which allowed optometrists to use topical drugs and remove foreign objects from patients' eyes, was ultracontroversial. It was tacked onto another optometry-related bill and navigated through legislative channels so quickly that some lawmakers later swore they didn't know what they were supporting. In the House, the measure passed by just one vote--Brenda Burns' vote.

One of Burns' GOP House colleagues--who also holds a leadership post--was stunned by Burns' blatant lobbying on behalf of the optometrists. "It's a good example of what happens when you get in the pitch of battle," he says. "There was a lot of arm-twisting that went on with this one." Like Bob Burns, Brenda Burns holds a position that gives her additional leverage on particular bills, the GOP leader says. But Brenda, he insists, is even more aggressive than Bob.

"Bob [Burns] will talk about those things [bills he likes] in caucus. But I don't see him coming in and out of members' offices" lobbying them individually, says the anonymous Republican, who opposed the optometry legislation. "That's a very powerful way to move people."
Brenda Burns did not return calls from New Times.
Mention the topic of conflicts to members of the legislative inner circle and they always mention Brenda Burns. But no one was willing to publicly accuse her of breaching legislative ethics. That's not surprising, says Dana Larsen.

"It's very rare that one member will rat out another, even when they know of or suspect a conflict," Larsen says. Indeed. The House Ethics Committee file for 1994 is empty--so, for that matter, is the Senate Ethics Committee file--despite what many observers and participants in state government privately claim is a blatant conflict on Bob Burns' part.

"I think everybody, everybody, talks about it [Bob Burns' possible conflict]. But there was no formal complaint filed," says House Minority Leader Art Hamilton, the sole Ethics Committee member still around from 1989, when the panel advised Burns to recuse himself on child-care-related votes. And until a complaint is filed, or until Burns asks the committee to revisit the issue, Hamilton says there's nothing he can do.

For now, it's business as usual. And few appear to care. "There's a long history of this in the legislature, and nobody thinks anything of it," says Rena Honan, a lobbyist for the Sierra Club and first-time candidate for the legislature this fall. "There's a warped sense of rightness and wrongness down there."

In 1993, Honan awarded Representative Jack Brown, a rancher, the "quote of the session" in a local Sierra Club newsletter. He was commenting on legislation--which ultimately passed--that calls for the voters' opinion on a feedlot tax exemption.

Brown told his colleagues, "Well, I've got a few cows, but I'll vote for it, anyway."

@rule:
@body:Bob Burns never did relent on the $100 million Success by Six package. So children's advocates cobbled together something called the Arizona Children and Families Stability Act, a $16.5 million effort to elevate the state's dismal standing in services for children and families. That effort failed, as well. So did a much-ballyhooed education-reform package.

But both the withered Success by Six and ed reform made it through Burns' House Appropriations Committee after his colleagues begged and scraped, trying to win the chairman's favor and pass a prochild bill--at times, it seemed, any prochild bill--in an election year.

Burns eventually allowed the Stability Act out of his committee. He says the most significant changes came in areas that had nothing to do with private day care.

He did, however, try to pluck the following plums for his industry during the 1994 legislative session:

ù Burns added private day-care centers to the pool of preschool providers eligible for $10 million in at-risk preschool funds as part of the education-reform package.

ù Burns co-sponsored legislation--which eventually became part of the Stability Act--that would require public schools with day-care programs to meet standards set for private centers. (This chagrined public-school advocates, who maintain public programs would have to shut their doors if the standards were applied too quickly.)

ù Burns launched a successful fight against a bill that would have eased standards for people providing day care in their homes--even though he didn't actually vote on it.

"Those people [home-care providers] are direct competitors, you know; the day-care home system is in direct competition with the center system, so I said, 'Okay, maybe I shouldn't vote on this one,'" Burns says.

But that didn't stop him from arguing against the bill in a House debate. The bill's supporters say Burns was instrumental in killing the legislation.

ù In the waning hours of the session, Burns almost succeeded in putting the state's current staff-child ratios for private day-care providers into statute, making it considerably more difficult to tighten guidelines in the future.

Under current law, the state Department of Health Services has regulatory authority over guidelines, including ratios. "Let those people [who want tougher guidelines] come to the proper arena to try and set public policy," Burns says.

His arena.
"The day-care law says that every two years the rules and regulations need to be reviewed," Burns says. "The history has been that they [DHS] review and increase regulation. Review and increase. Review and increase. Every two years, it's the same old story."
Not true. According to the Arizona Administrative Code, DHS hasn't increased ratio requirements for private day-care centers since 1988.

The guidelines Burns wants to put into law rank Arizona among the bottom third in the country, according to information compiled by Summa Associates, a local nonprofit child-/elder-care provider.

Burns makes no bones about his motivation: the bottom line. "It [a more stringent ratio] reduces the number of children you can serve--at the same time driving your cost up, requiring you to have many more employees," Burns says.

While the least publicized, Burns' raid on ratios is clearly the most significant. Ratios have been the bane of his existence, both at the legislature and at his Glendale day-care center, Rainbow Elementary Prep II.

From February 1989 to December 1993, DHS inspectors visited Rainbow Elementary Prep II nine times, according to reports obtained from the agency.

Only once--in July 1989--was the center found to be in compliance with ratio standards. The other eight reports document example after example of too many kids and not enough caretakers.

On a visit in January 1993, the inspector found 33 4- and 5-year-olds alone in a classroom. The prescribed ratio for that age group is one staff member for every 15 children.

"I don't think the kids were alone," says Burns, adding that he doesn't recall such a report. "If they were alone, it was for maybe a minute or something while one of the teachers was standing in the doorway."
Records prior to 1989 have been destroyed, but in 1989, the Associated Press reported a long list of violations--including those involving ratios--at Burns' centers in Phoenix and Glendale. (He now owns only the Glendale center.)

Burns criticizes DHS for overregulating him and his industry. "It's not possible to comply, fully, 100 percent of the time," he gripes.

@rule:
@body:Our lawmakers are correct when they argue that the foundation of a citizens' legislature is the experience and knowledge of its members. But to limit the definition of a conflict of interest strictly to legislation that results in blatant, isolated financial gain for a particular member is to ignore the reality that the system is abused.

Reform-minded legislators and citizens say the rules should be tweaked and the public should hold lawmakers accountable for their actions.

House Minority Leader Art Hamilton points out that any person is entitled to submit a complaint to the secretary of the Senate or the clerk of the House requesting an ethics investigation of a member's conduct.

According to a recent national report by Common Cause, there are actually eight states that don't require legislators to submit any sort of financial disclosure, considered the most effective bulwark against conflicts of interest. Arizona does require financial disclosure, but critics complain that the forms aren't monitored closely enough.

Representative Gary Richardson, Republican-Tempe, for example, lists insurance sales as his profession. But he fails to detail what sort of insurance he sells. It is impossible to tell if any of the scads of insurance-related bills he supported in this session could have benefited him.

Richardson isn't the only one. "Just look at the 90 legislators' [financial disclosures]," Arizona Common Cause's Larsen says. "They're filled out 90 different ways. There is nobody making sure that these things are done right, and when a public official files it, that person has no idea whether they've done it correctly or not."

The forms are worthless, says Representative Chris Cummiskey. "We need to be held to a higher standard in terms of putting our cards on the table," he says. The current system gives legislators--particularly committee chairs like Bob Burns--so much power, it invites them to kill bills that might damage their businesses.

Since 1976, Common Cause has advocated the automatic calendaring of bills, a process by which bills are assigned to committees on a more egalitarian basis.

Kay Jeffries, executive director of Arizona Common Cause, says she will try one more time to get an automatic calendaring bill through the legislature--ironically, the bill isn't always heard--and then Common Cause will consider bypassing the legislature with a ballot initiative. A similar initiative was recently approved by the electorate in Colorado.

In the end, some worry that the concern about conflicts will always be motivated by fear, not altruism. That, says Senator Marc Spitzer, Republican-Phoenix, can result in poor public policy.

Spitzer, a lawyer who came under fire for a bill critics said would help him and other attorneys by prohibiting legal assistants and paralegals from performing certain basic legal services, says his colleagues often wimp out by declining to vote on or sponsor legislation that may be construed as a conflict--but which is really in the best interest of the public.

"The shame of it," he says, "is people are looking in terms of the hit pieces and what is going to be on the front page of the paper the next day." @rule:

@body:Bob Burns is not concerned with headlines. He's emerged as one of the key players in a possible special legislative session on children's issues--now tentatively slated for June. And he continues to lobby on behalf of the private day-care industry.

Just after a caucus meeting of Senate Democrats last week, Senate Assistant Minority Leader Pete Rios told New Times that his colleagues are grousing about Burns' day-care legislation.

The Democrats can support watered-down versions of education reform and Success by Six, Rios says, but not the bill that would require public schools to meet standards set for private centers.

That provision is on the table for a special session "because Bob Burns wants it," Rios says.

Burns says he's thinking of children's safety when he insists that public-school day-care programs be forced to comply with private-center standards.

Rios counters, "The only reason the schools are setting up these after-school programs for latchkey kids is because the parents cannot afford private day-care centers. So, in essence, what the bill does is it forces us to push thousands of kids out on the street." Even Governor Fife Symington's precious school vouchers may be sacrificed in the name of passing children's legislation. But now the entire special session could collapse under the burden of Burns' insistence. The Democrats, Rios says, may refuse to cooperate.

"Why should we agree to a special session that includes Bob Burns' day-care bill?" Rios asks. "What does that have to do with Success by Six, and what does that have to do with education reform?

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