Anti-Prop 127 Resolutions by Towns and Counties Broke the Law, Legislator Says

State Representative Ken Clark, a Democrat, requests an investigation by the state attorney general at a press conference at the Capitol on October 24.
State Representative Ken Clark, a Democrat, requests an investigation by the state attorney general at a press conference at the Capitol on October 24. Joseph Flaherty
A state lawmaker wants the Arizona attorney general to investigate counties and towns that passed resolutions opposing a clean-energy ballot measure at the request of a utility company.

Democratic State Representative Ken Clark argues that these resolutions violate state laws prohibiting the use of public resources for the purpose of influencing an election. These resolutions were clearly passed at the urging of the state's largest utility company, Arizona Public Service, which had led the fight against Proposition 127, Clark said.

In his October 23 letter to Arizona Attorney General Mark Brnovich, Clark wrote that public money shouldn't be used to promote political views on behalf of private corporations like APS.

At a follow-up press conference on Wednesday, Clark said that candidates across the state need to stand up to shady tactics from the powerful company.

"It's the elephant in the room," Clark said. "APS has been brazenly using its influence, doing some influence-peddling, and bullying people all over this state for some time."

Clark is a soon-to-be-former-legislator who represents Phoenix in Legislative District 24. He lost his primary election to Jennifer Longdon and Amish Shah in August.

A spokesperson for Brnovich told Phoenix New Times that the attorney general's office is moving toward the preliminary step of an investigation after receiving Clark's request late yesterday.

"Our office is preparing inquiry letters for the various local government entities subject to the complaints made by Representative Clark," Ryan Anderson wrote in an email. "This is the first step in an investigation."

Proposition 127 is a proposed constitutional amendment sponsored by liberal political action group NextGen America. If voters approve the measure, it would require Arizona utilities to generate 50 percent of their electricity from renewable sources like solar and wind by 2030.

Both sides have unleashed a torrent of money in the fight over the ballot measure. So far, an opposition committee funded by APS parent company Pinnacle West has spent nearly $22 million to oppose the measure, while the Prop 127 campaign committee has spent $17.6 million.

So far, three counties (Gila, Greenlee, and Navajo), plus several cities and towns (Chino Valley, Holbrook, Pinetop-Lakeside, and Snowflake) have passed resolutions opposing Prop 127. Navajo County recently backtracked, amending a resolution originally passed in May to clarify that the intent is merely to educate voters on the measure.

Additionally, the Council of the Navajo Nation passed a resolution formally opposing Prop 127 in July.

Arizona laws state that counties, cities, and towns cannot use public resources to influence an election, including ballot measures. Violations could result in a civil penalty, up to $5,000.

Clark joined former Corporation Commissioner Bill Mundell and Chandler attorney Tom Ryan for Wednesday's press conference at the Capitol, where they reiterated the call for Brnovich to investigate.

Mundell, who recently lost in a Democratic primary to rejoin the Corporation Commission, called the resolutions an "illegal scheme" led by the utility.

"What I find so concerning, and so typical, is that APS believes the ends justify the means," Mundell said. "They have used these rural counties and cities and towns to accomplish their goal. They knew it was illegal to ask for these resolutions, but pushed anyway." 

Earlier this month, the pro-renewable energy Energy and Policy Institute published emails between APS representatives and Yuma County officials that showed APS urging the county board to pass a resolution  opposing Prop 127.

Yuma County's attorney advised the board against passing a resolution or hosting an APS-sponsored forum on the measure because it would potentially put the county in violation of state law.

Among the emails published by EPI was a message from APS community affairs manager Anna Chaulk, who repeatedly asked Yuma County to allow APS to give a presentation on Prop 127, even after the county declined her request. Calling Prop 127 "the Steyer initiative," Chaulk informed county officials that the town of Snowflake had passed a resolution unanimously opposing the measure.

"My ask is that Yuma County consider adopting a similar resolution," Chaulk wrote on June 14.

Yuma County ultimately did not pass a resolution, but plenty of other towns and counties did. Ryan attributed these resolutions to the inadequate access to legal counsel for these rural areas, combined with an aggressive effort by APS.

"When Arizona Public Service was lobbying these towns and these small counties, they were trying to pick off counties and small towns that didn't have appropriate legal advice being given to them," Ryan said at the press conference.

A request for comment to APS was not returned.

Brnovich, a Republican, is in the midst of a re-election battle against Democrat January Contreras.

Complicating any investigation is the fact that Brnovich has become embroiled in the fight over Prop 127. He intervened to add language to the ballot measure that said the Prop 127 mandate would take effect "irrespective of cost to consumers," delighting opponents of Prop 127, who deployed the phrase in ads. And recently, an attorney representing Brnovich threatened to sue over ads produced by the Prop 127 campaign committee portraying Brnovich as an APS puppet.   

Clark, however, believes that all they can do is ask for an investigation and hope that Brnovich will listen in his role as an impartial law enforcement official.

"This is about the misuse of public funds at the behest of APS," Clark said. "The attorney general simply needs to do his job, regardless of where he stands on this initiative."

Ryan and Mundell went further. They suggested that the attorney general may have a conflict of interest regarding this particular investigation and said that Brnovich could refer the town and county resolutions to an outside investigator.

"If he believes he can't investigate this matter impartially and thoroughly, then he should recuse himself and farm it out – transfer it to a county attorney or other law enforcement agency that can," Mundell said.

This article has been updated with a response from the Arizona attorney general's office.
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Joseph Flaherty is a staff writer at New Times. Originally from Wisconsin, he is a graduate of Middlebury College and Columbia University’s Graduate School of Journalism.
Contact: Joseph Flaherty