Doug Ducey's Power Grab Continues, Mark Brnovich Pushes Back
Some hot, Republican-on-Republican action broke out Wednesday in a state Senate Government Committee hearing, as Senator John Kavanagh offered a "strike all" amendment to House Bill 2420 that creates a state Inspector General's Office, with wide police powers, beholden only to the governor.
As I recently reported, the Ducey administration says it wants this new IG's office, with its subpoena power and its authority over existing IGs in various department of state government, so Ducey can root out waste, mismanagement, and corruption.
IG investigators would have badges, and employees of state government would have to cooperate with them or face sanctions. The IG will be able to conduct criminal investigations, but its employees will not be certified by the Arizona Peace Officers Standards and Training Board.
C'mon, Doug, you've got enough power already...
Thing is, we already have an Auditor General's Office, which performs, well, audits and can look into waste and mismanagement.
More importantly, we have an elected Attorney General, who normally would conduct the sort of investigations that Ducey and his allies in the Legislature want to hand off to the new IG.
Which no doubt is why the Attorney General's Office signed in at the hearing as being against the bill.
After the bill passed out of the committee on a party-line vote, Attorney General Mark Brnovich released a statement to the press:
"Arizona already has an independent law enforcement agency to investigate fraud and criminal activity; it's the Attorney General's Office."
To that point, state Senator Sylvia Allen asked a pertinent question during the hearing of Ducey's operations chief Ted Vogt.
"I was curious that the Attorney General's Office didn't want to speak," said Allen. "I was kind of wanting to hear why they were against it...Is there going to be a conflict with the Attorney General's Office?"
"Does Macy's tell Gimbels?" cracked the committee's chair, Kavanagh.
Vogt assured the committee that the governor's office had been talking with the AG about this tectonic shift in state government.
"We've been in contact with the Attorney General's Office," Vogt stated. "We feel confident that any sort of issues can be worked out to make sure we are not crossing over into somebody else's constitutional office, or anything like that."
In reality, Ducey's office only reached out to the AG at the very last minute.
After all, as state Senator Martin Quezada noted during the hearing, the Ducey administration could have pushed this earlier in the session, or it could wait till next year and give it a full vetting.
"Again it's another bill, a strike everything, offered in the last week of committee hearings here in the Senate," said Quezada, a Democrat. "Which means another bill that won't get a full hearing in the House of Representatives. I think that hearing would've been good to work out some of these issues [with the bill]."
One of those issues has been the bill's exception to Arizona's public-records law. As is, the bill would keep all of the IG's records confidential and make it a class one misdemeanor to make any of them public.
Ducey's people have since stated that they will seek a floor amendment to the bill, which will tweak the language to more closely match the state auditor general's exception to public records law, which reads:
"Working papers and other audit files maintained by the auditor general are not public records and are exempt from title 39, chapter 1. The information contained in such working papers and audit files prepared pursuant to a specific audit is not subject to disclosure, except to the attorney general and to any county attorney in connection with an investigation made or action taken in the course of their official duties."
The problem I see here is that we potentially are discussing criminal investigations by an IG.
Currently, law enforcement agencies in this state have to make public, upon request, nearly all documents related to an investigation, once its over.
The governor's spokesman, Dan Scarpinato, claims the governor's office wants to be transparent.
"We also want to go a step further toward transparency and accountability and will be requiring the IG to publish a report on their finds and conclusions so the public has all the information," he told me.
But a sanitized report is not the same as seeing all the evidence that gave rise to the probable cause to charge someone. This information is not always divulged in detail in the court record, and it is imperative that the public be able to see it.
Otherwise, the IG's office will simply be Ducey's personal Star Chamber.
Hell, Ducey already has a humongous enforcement agency at his beck and call: the Arizona Department of Public Safety. Why does he need another?
Thing is, it may be politically convenient to bypass DPS, and particularly the AG's office, which is no way beholden to Ducey.
Parallel investigations could be conducted, with widely different outcomes.
The new IG would not have prosecutorial powers like the AG. However, Scarpinato told me, "If there is a criminal investigation, it would be referred to the Arizona Attorney General or to a County Attorney."
Note that, "Or to a County Attorney."
Look, perhaps Ducey just wants to make the trains run on time and envisions the IG as one way of making that happen. Rooting out corruption, fraud, and waste are worthy endeavors.
But the residents of Maricopa County have recent experience in how going after corruption can be a mask for abuse of police power and prosecutorial misconduct. I'm referring, of course, to the failed partnership between disbarred former County Attorney Andrew Thomas and Sheriff Joe Arpaio.
That "anti-corruption" effort resulted in wrongful prosecutions, witch hunts, and millions of dollars in settlement payouts after the victims of the abuse sued.
Creating a little AG's office in the governor's office takes away the check of having the Attorney General doing the same work. The AG is an elected position. The IG post Ducey envisions will not be. It will do Ducey's bidding, and that could be politically motivated.
As governor, Ducey already has enormous power. The Legislature would be wrong to roll over for Ducey like a de-fanged lap dog, and the AG should continue to oppose Ducey's power grab..
As for Ducey, he would be wise to nix this bill and start over next session, if at all.
Another possibility: use the resources you already have, governor. You don't need any more.
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