For about a day this week, Mark Brnovich was governor.
The attorney general discovered Tuesday that Doug Ducey was off on vacation with his family in California. And Secretary of State Michele Reagan left Tuesday morning for a conference.
The Arizona Constitution specifically says that when the governor is absent from the state, “the power and duties of the office shall devolve upon the same person as in case of vacancy.’
And Brnovich is third in line.
The issue comes up quite regularly, with governors for years having left the state and even the country. But there’s rarely been a controversy, as no secretary of state, attorney general or treasurer ever has tried to use that temporary authority on his or her own.
Brnovich, however, provoked a new discussion by going to Twitter, and, tongue firmly in cheek, publicly asked followers for suggestions on things they’d like him to do.
And that left Ducey press aide Daniel Scarpinato, still in Arizona, to tamp down any talk that his boss was not governor this week while wandering around San Diego.
Brnovich, realizing he’d struck a nerve, issued a statement saying he has “full confidence in Gov. Ducey’s capability to manage the state while across state lines.” But he couldn’t resist a nod to what the constitution says he can do.
“I am declaring today Grateful Dead Appreciation Day – unofficially of course,” Brnovich quipped.
“With all due respect to the attorney general, Gov. Ducey is more of a Rolling Stones kind of guy,” Scarpinato retorted.
Rock and roll notwithstanding, Scarpinato said Ducey operates from the perspective that the constitution should not be taken so literally.
“The governor is the governor,” he said.
“He remains the governor even if he’s traveling,” Scarpinato continued. “But it is important to notify the next in succession, the secretary of state, because there may be specific duties that the governor can’t perform when he’s out of state.”
Well, earlier this year state lawmakers approved legislation to immediately repeal the requirement that high schoolers get passing grades on the AIMS tests to graduate. It was approved on an emergency basis, allowing it to take effect immediately on the governor’s signature, because the latest round of tests were to be administered that following week.
Only thing is, Ducey was out of town at the National Governors Association meeting. So Secretary of State Michele Reagan stepped in to pen her signature to the document, adding the word “acting” below the printed title of “Governor of Arizona.”
Scarpinato, however, said all that occurred with Ducey’s blessing.
Jan Brewer, Ducey’s predecessor, had an evolving relationship with the constitution.
In 2007, as secretary of state, she was called upon to sign an official declaration of emergency amid fear of flooding of the Nogales Wash. That declaration was necessary to free up $200,000 in state funds to deal with the problem as well as allow the use of the Arizona National Guard.
Staffers of Gov. Janet Napolitano prepared the document and called the vacationing governor who gave her approval. But to avoid any questions about the document’s authenticity, the staffers presented it to Brewer.
Brewer, however, told Capitol Media Services at the time she did not see her role as simply being “authorized” by Napolitano to do the absent governor’s bidding.
She said it was her decision to sign the declaration, which she did as “acting governor.” And Brewer, asked if she believed she was governor when Napolitano was gone, replied, “Absolutely.”
Yet four years later, having become the state’s chief executive, Brewer insisted she remained governor, even when attending the Paris Air Show. Matthew Benson, her press aide, explained that his boss’ thinking had evolved based on her experience.
“Given the way in which she is linked to this office, via her staff, via her phones and email and all the other conveniences of modern communications, she has the position that she is the governor all the time,” Benson said.
Arizona courts have never addressed the question. But there is some precedent – on both sides of the argument – from other states that have similar constitutional provisions.
California courts upheld actions taken in 1979 and 1980 when Republican Mike Curb, the lieutenant governor, signed several executive orders while Democratic Gov. Jerry Brown was out of state, orders Brown rescinded when he returned.
But the Missouri Supreme Court concluded in 1991 that the lieutenant governor does not become acting governor on the “temporary casual absence” of the elected governor from the state, but only when the governor’s absence makes that person unable to perform his or her duties.
If Brnovich had been traveling while Ducey and Reagan were out of town, next in line would be the state treaurer, currently Jeff DeWit. There has been at least one situation in the last 40 years where that has happened.
There is no evidence it ever got beyond treasurer. But for the record, if the top four are gone, the line of succession goes only one deeper: the superintendent of public instruction, Diane Douglas.