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AG Brnovich says Arizona communities may adopt their own ‘living wage’ laws

Arizona Attorney General Mark Brnovich talks during his inauguration Jan. 5 at the state Capitol in Phoenix. (Photo by Ryan Cook/RJ Cook Photography)

Arizona Attorney General Mark Brnovich talks during his inauguration Jan. 5 at the state Capitol in Phoenix. (Photo by Ryan Cook/RJ Cook Photography)

Voters in Arizona communities are free to enact their own “living wage” laws despite a state statute prohibiting it, the state’s top lawyer has conceded.

In a new court filing, Attorney General Mark Brnovich said state legislators had no legal right to adopt a law in 2013 precluding locally set minimum wages. Proponents of that law said businesses should not have to pay more than what the state requires, currently $8.05 an hour.

But Brnovich acknowledged that 2006 law establishing a state minimum wage has a specific provision allowing cities, towns and counties to adopt a higher figure. More to the point, because that law was approved by voters, the Arizona Constitution makes any legislative action contrary to that unenforceable.

The concession is most immediately a victory for the Flagstaff Living Wage Coalition.

“Flagstaff has a very high cost of living,” said Joe Bader, a coalition member. “So it makes sense for Flagstaff – and other communities, too, in their own way – to try to set a wage that is appropriate in that particular town.”

It took a lawsuit filed against the state earlier this year by the coalition, though, to get Brnovich to agree to a court order that the provision of the 2013 law is unenforceable.

Attorney Mikkel Jordahl said that action was necessary to clear the way for the group to take the next steps, whether that means asking the city council to approve the change or taking the question directly to Flagstaff voters.

But Jordahl said what’s significant is that the decision ensures that the state will not try to thwart similar measures as they arise elsewhere.

“It’s incredibly important that the Legislature honor the will of the voters when it’s expressed through initiative,” he said.

“To try to do that is clearly unconstitutional,” Jordahl continued. “And it’s wrong.”

The idea of a “living wage” has gained popularity nationwide. Local laws exist in New York City, Los Angeles, San Francisco and even Albuquerque, N.M.

It was precisely those efforts that caused Sherry Gillespie, lobbyist for the Arizona Restaurant Association, to push for the 2013 law.
“There has been a threat in the industry,” she said at the time. “This bill best addresses that threat.”

Bader dismissed arguments that free market forces will determine what wages businesses need to pay to attract workers. He said if that were the case, there would be no need for any sort of minimum wage.

“We could have a $4-an-hour wage,” he said.

“There would be people that would probably work for that,” Bader continued. “And that wouldn’t be acceptable.”

Some Arizona communities already have more limited laws. In Tucson, for example, a city ordinance spells out how much firms that do business with the city must pay, a figure that is adjusted annually, with different rates depending on whether the jobs include insurance.

None of that, however, affects what private firms pay.

Jordahl acknowledged that the action by Brnovich technically precludes only the state from trying to quash living wage ordinances.

Others who are not parties to the court order, like city attorneys and even private businesses, could still mount their own challenges based on the 2013 law. But Jordahl said he’s not worried.

“You have an attorney general saying the law is unconstitutional,” he said. “I just don’t see how that could work.”

As to what’s next in Flagstaff, Bader said his group is still deciding whether to seek city council approval of a higher wage or take the question directly to voters.

The latter course is more cumbersome. But if Flagstaff voters approve, it gains the same constitutional protections as the 2006 state law, meaning it cannot be undone by a future city council.

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