Arizona Attorney General Mark Brnovich Seeks Removal of AZCC Chair Susan Bitter Smith

Attorney General Brnovich: "No person is above the law."
Attorney General Brnovich: "No person is above the law."
Stephen Lemons
Please see updates below.

Arizona Attorney General Mark Brnovich announced during a press conference today that his office had filed a petition with the Arizona Supreme Court to remove embattled Arizona Corporation Commission Chair Susan Bitter Smith from office for alleged conflicts of interests. 

In strident language, Brnovich said fellow Republican Bitter Smith "clearly violated the law" by acting both as a lobbyist for cable-TV and phone giant Cox Communications and as executive director of the Southwest Cable Communications Association, while at the same time serving on the AZCC, which regulates the telecommunications portion of that industry.

"At the time that Mrs. Bitter Smith was elected to office, our petition asserts that she was ineligible to hold that office," Brnovich told reporters, citing Bitter Smith's work for Cox and for the SWCCA.

He referred to Arizona Revised Statute 40-101, which prohibits a person from holding a seat on the commission if he or she is in the employ of, or has a financial interest in, a corporation regulated by the commission.

Bitter Smith has contended that she lobbies on behalf of the cable companies, not their telecommunications business. But Brnovich countered that the cable companies that make up the SWCC and pay its dues offer bundling packages that include phone services. 

Arizona Corporation Commission Chair Susan Bitter Smith
Arizona Corporation Commission Chair Susan Bitter Smith
Courtesy AZCC

"This isn't getting into a gray area, or someone skating close to the line," Brnovich explained. "This isn't something we're doing willy-nilly...we're doing this because we believe we have to."

The attorney general also noted that when Bitter Smith was interviewed by his office concerning the alleged conflicts, she admitted that she worked more than 40 hours a week for the SWCCA and is paid more than $150,000 year by the organization.

"Which raises the question," said Brnovich, "if she's working 40 hours a week and making $150,000 a year as the executive director [of the SWCCA], what is she doing for her time as corporation commissioner?"

If Bitter Smith were to resign, Brnovich said, there would be no need for special action by the state Supreme Court.

However, he said, his office still has "an open criminal case in this matter," about which he declined to comment.

Asked about other complaints regarding CorpCom commissioners that are under investigation by the AG's staff, Brnovich quipped that the AZCC had become "the full employment act for our office."

The AG's flow chart of the allegations against Bitter Smith.
The AG's flow chart of the allegations against Bitter Smith.
Stephen Lemons

A spokeswoman for the AZCC directed all inquiries concerning Bitter Smith to her attorney Ed Novak. So far, Novak has not responded to New Times' request for comment. 

Chandler attorney Tom Ryan, whose formal complaint about Bitter Smith to the AG's Office earlier this year kicked off the investigation, was pleased with the AG's move.

"My hat goes off to Mark Brnovich and his criminal division chief, Donald Conrad," Ryan told New Times when contacted by phone shortly after the press conference. "They kept their promise, which was to take the complaint seriously and further [look into] the investigation that I brought to them."

Ryan said it was obvious that the AG had done both because the complaint filed by Brnovich's office included hundreds of pages of additional investigative material.

The pugnacious, civic-minded attorney, who has gone after such infamous politicos as former Arizona Attorney General Tom Horne and ex-state Senate President Russell Pearce in the past, credited KJZZ reporter Kristena Hansen for first bringing Bitter Smith's alleged conflict of interest to his attention and for breaking the story. 

Chandler attorney Tom Ryan, who filed the complaint against Bitter Smith with the AG's Office.
Chandler attorney Tom Ryan, who filed the complaint against Bitter Smith with the AG's Office.
Stephen Lemons

Would things be different in the Bitter Smith case if the ethically challenged Tom Horne had beaten Brnovich in the 2014 GOP primary and gone on to win re-election?

"Bottom line, I can ironclad guarantee you that Tom Horne wouldn't have done a damn thing about this," Ryan claimed, citing a complaint he made about Democrat-turned-Republican state Senator Carlyle Begay, which Horne "laughed off," according to Ryan.

Ryan also noted that it was politically risky for Brnovich to pursue the removal from office a member of his own party. 

As for Bitter Smith, Ryan predicted that "if she resigns, it will be part of a plea agreement," stating that certain Arizona criminal statutes could apply to Bitter Smith's conduct.

At the close of Brnovich's press conference, New Times asked the AG what his action said to members of his own party.

"We don't want to go after people just to go after them," Brnovich replied. "That being said, if someone's breaking the law, they should expect this office, regardless of who they are, to aggressively investigate and prosecute these cases.

"No person," he concluded, tapping the lectern for emphasis, "no person is above the law."

Update 2:34 P.M.:

Bitter Smith's attorney Ed Novak issued the following response from the chairwoman. Those familiar with Tom Ryan's work will know he is a former Republican, now a registered Independent.

STATEMENT OF SUSAN BITTER SMITH

The complaint was presented to the AG by a Democrat who is connected with a potential Democratic candidate for the Commission. As I have long said, I am not now nor have I ever been employed by a regulated entity. I am not paid by a regulated entity. I have not lobbied for a regulated entity.

There is a policy issue at stake here: how far should conflict of interest rules extend? Should they extend to holdings by your retirement plan; should they apply to investments in your company or state retirement funds; should they apply to anyone who is a customer of a regulated entity; or should they apply to anyone who has received a rebate or discount from a regulated entity? The complaint is broad enough to be read to exclude almost anyone from serving on the Commission or any state office.

We look forward to having this reviewed by an independent body like the Supreme Court.

Update 3:00 P.M.:

New Times called Ryan for a response, since he obviously is being referred to in Bitter Smith's statement. 

He explained the following:

From age 18 till 2010, when Governor Brewer signed SB 1070 into law, I was a lifelong, East Valley, born-and-raised Republican, but was offended by the hard-right turn on immigration that the republican Party took, and I left it in 2010. But I registered as an Independent. I have never registered as a Democrat.

No candidate has asked me to do this. I didn't offer to do this on behalf of any candidate. I haven't endorsed any candidate....At one time [Bitter Smith] was saying I was part of the dark-money group. If that was true, I got screwed, because I didn't get any money on this. It's all volunteer.


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