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Bundgaard sues Ethics Committee members to halt investigation

Sen. Scott Bundgaard (File photo)

In another attempt to halt the investigation against him, Sen. Scott Bundgaard filed a lawsuit against members of the Senate Ethics Committee.

In the complaint he filed with the Maricopa County Superior Court on Monday, Bundgaard argued that the five members of the ethics panel failed to hold a hearing against him in a timely manner.

Bundgaard’s arguments stemmed from a committee rule that says the panel must hold a hearing within five to 20 days after an ethics complaint is filed and a lawmaker is notified that the committee will investigate it.

The Peoria Republican said his colleagues on the ethics panel violated that rule.

He asked the court to issue a temporary restraining order to halt the investigation.

Bundgaard’s lawyer, Andre Merrett, raised the same point earlier in a letter to Republican Sen. Ron Gould, the ethics committee chairman.

In that letter, Merrett said since Bundgaard was notified about the investigation on Sept. 15, any hearing on the complaint against Bundgaard should have been held by Oct. 13.

Actually, the committee met on Sept. 20 to adopt rules that will govern the trial.

However, the date for the actual trial, when both sides will argue whether Bundgaard breached ethics rules, has yet to be set, although Gould told the Arizona Capitol Times that he’s considering holding it on Jan. 5.

Attorney Kory Langhofer, who has been hired by the committee to act as independent counsel, said he also wants to defend the committee against the complaint Bundgaard filed in trial court.

He is confident that the committee will prevail.

Langhofer said he doesn’t believe the court has jurisdiction over the Senate’s ethics investigation, which he said is a political and internal matter.

“The judicial branch has no authority to tell the legislative branch how to conduct its internal affairs,” he said. “As a matter of upholding our constitutional system, surely the first argument — separation of powers — is the most important.”

Langhofer said he can also offer arguments to show the committee actually didn’t violate its rules. He said it already satisfied the hearing requirement when its members met on Sept. 20 to adopt rules to govern the investigation of Bundgaard.

Finally, Langhofer said there’s the question of how the court will resolve the case, assuming Bundgaard is correct.

“Let us assume he is right – that the court has jurisdiction and there actually has been a violation,” Langhofer said. “Does he really get to shut down the whole proceeding because of that?”

But Merrett argued that the ethics panel is acting in a quasi-judicial manner and rejected the notion that the investigation is purely political and internal — something that is up to the Legislature alone to decide.

“The court has, in the past, exercised jurisdictions in matters where the government, including legislative bodies, has acted … illegally or arbitrarily or in a capricious manner,” he said.

Merrett also dismissed the argument that the ethics panel satisfied its rule by meeting on Sept. 20.

He said the “hearing” referred to in the Ethics Committee’s rules is the actual trial, where the subject of a complaint has the right to present evidence and challenge the testimony against him.

“A meeting does not equal a hearing nor does a hearing equal a committee meeting,” he said.

The ethics panel had decided in August to investigate a complaint against Bundgaard filed by Sen. Steve Gallardo, D-Phoenix.

The complaint alleges that Bundgaard broke Senate rules by violating state law and by engaging in conduct that reflects poorly on the Senate.

Bundgaard pleaded no contest on Aug. 16 to a misdemeanor endangerment charge stemming from the freeway altercation in which both he and his then-girlfriend, Aubry Ballard, emerged bruised and battered. A misdemeanor assault charge was dropped in a plea deal.

Under a plea agreement with Phoenix prosecutors, Bundgaard’s endangerment charge will also be dismissed if he completes one year of counseling through a domestic-violence diversion program.

The freeway fight began while Bundgaard and Ballard were in the senator’s car after attending a charity dance.

While both were bruised up, police said witnesses supported Ballard’s account of events that evening.

Ballard was arrested that night, but Bundgaard was not. The police report says the senator invoked a constitutional provision that gives lawmakers immunity from arrest during the legislative session. Bundgaard has denied he invoked the immunity.

The altercation also cost Bundgaard his post as majority leader in the Senate.

Earlier this year Bundgaard asked then-Senate President Russell Pearce to remove three members of the Ethics Committee, saying they had made publicly disparaging remarks about him.

When that didn’t prosper, Bundgaard filed his own complaint against the members, arguing those members should be barred from hearing his case. That, too, went nowhere.

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