Weeks of administrative and judicial hearings and political disagreement appear to be in prospect in the wake of the Citizens Clean Elections Commission’s directive for Rep. David Burnell Smith to forfeit his office for breaking the campaign public-funding law on overspending.

“Mr. Smith will not resign,” his attorney, Lee Miller, told reporters immediately after the March 24 vote. He said the commission’s action will be appealed, first administratively and then to the courts. Mr. Smith, himself a lawyer, is a Republican from District 7 and is in his first year in the Legislature. He was not present for the meeting.

At the House, Democratic leader Phil Lopes told a reporter that Mr. Smith “needs to do the right thing.” Members of the House Democratic caucus were discussing how and whether to make a formal request or motion on the issue of resignation.

At the Clean Elections Institute, which was formed to support the public-funding act, director Barbara Lubin said Mr. Smith needs to get a court order to stay in the Legislature, and a CEI press handout quoted her as saying, “We understand that Rep. Smith will likely challenge the action of the commission, but under Arizona law he is now ineligible to hold office.”

The five-member commission voted unanimously March 24 to accept the recommendation of its investigator that Mr. Smith be ordered to resign, that he be fined $10,000 for misreporting his spending and that he be required to repay, from his own funds, the entire $34,625.09 he received as a publicly funded candidate in last fall’s elections.

It was the first time the commission, which administers the Clean Elections Act, had ordered the Act’s ultimate sanction. The commission’s investigator, former commissioner Gene Lemon, said Mr. Smith spent $32,969 in the 2004 District 7 Republican primary, where the spending limit for publicly funded candidates was $24,507. The Clean Elections Act says that any case where a publicly funded candidate exceeds the spending limit by more than 10 per cent “shall result in disqualification of a candidate or forfeiture of office.”

Mr. Smith’s post-election accountant, Bob Hubbard, said Mr. Lemon’s spending figure was far too high and included spending not required to be included for this purpose. Mr. Lemon said that even without including the challenged spending, Mr. Smith’s spending exceeded the 10 per cent threshold.

Mr. Smith has insisted since the beginning that all his violations were unintentional. Mr. Lemon told the commission before the vote that it would have to find a knowing violation in order to impose the disqualification penalty and said he determined there was a knowing violation because Mr. Smith himself had signed all of the campaign checks.

Gould Fined; Gorman Cleared

In other action involving sitting legislators the commission voted as Mr. Lemon recommended to fine Sen. Ron Gould, R-3, $3,630 for failing to meet some reporting requirements of the Act and to dismiss complaints about Rep. Pamela Gorman’s campaign reports and spending. Mr. Lemon said Ms. Gorman, R-6, had promptly complied with requirements after being notified.

Also on the commission’s agenda was the question of how to handle complaints filed by Patrick Meyers of Anthem against a number of candidates, including Governor Napolitano and Attorney General Terry Goddard, relating to the campaigns of 2002. The commission voted to postpone action while it seeks legal advice on whether it has authority to rule that the complaints, which were submitted only recently, were filed too late to be valid and must be dismissed.

The law creating the commission and the public-funding system was passed by voters as an initiative proposition in 1998 by a vote of 51.2 per cent to 48.8 per cent. No more than two of the five members of its governing commission can be from the same county or be registered with the same political party.

Current members of the commission are Marcia Busching of Phoenix, the chairman, a retired lawyer and registered Democrat; Kathleen Detrick of Tucson, the Tucson city clerk and registered independent; Ermila Jolly of Yuma, president of the Yuma Hispanic Forum and registered Democrat; Tracey Bardorf of Phoenix, a lawyer and registered Republican; and Gary Scaramazzo of Page, a consultant and former teacher and mayor of Page and registered independent.

The motion to fine Mr. Smith and direct him to forfeit his office was made by Ms. Detrick, who said she respects the fact that Mr. Smith was duly elected but that the Clean Elections Act also was approved by voters, and statewide, “and I have to listen to those voices over the voices of District 7.”

Mr. Scaramazzo said he has a concern with the extent of the commission’s authority in directing an elected official to resign and said he is glad the vote will be going to court because “I think judicial overview will clarify the authority of the commission.” —