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Bitter Smith attorney asks Supreme Court to hear case despite resignation

(Photo by Howard Fischer, Capitol Media Services)

(Photo by Howard Fischer, Capitol Media Services)

The attorney for Susan Bitter Smith is asking the state Supreme Court to rule that the conflict-of-interest charges filed against her are “legally meritless” even though she is quitting the Arizona Corporation Commission on Monday.

In new legal filings, Ed Novak acknowledged that nothing the justices do will matter for Bitter Smith who will no longer be a commissioner by the time the justices take up the issue on Tuesday. She opted to resign rather than fight allegations by Attorney General Mark Brnovich that her outside employment she had when elected in 2012 and still maintains makes her ineligible to serve on the panel.

But Novak said the lawsuit Brnovich filed in November muddied the waters about what is and is not allowed. And he told the justices that dismissing the lawsuit just because it won’t affect Bitter Smith “would leave undecided remarkably important questions about the meaning and extent” of the law.

And Novak has another reason, albeit less a legal one, to want the high court to weigh in. He wants to give Bitter Smith a chance to clear her name — something she cannot do if the justices never decide whether she really violated the law.

“It leaves the public with the false perception that Ms. Bitter Smith was unfit for office and thus, undermines the public’s confidence in commission rulings while she was the chair,” Novak wrote.

Beyond that, he said the lack of a definitive ruling on what the law allows means “the business community is left to guess whether relationships with corporate affiliates create unavoidable conflicts.”

Brnovich is expected to file a response Monday, with the justices set to meet Tuesday to decide whether to let the lawyers argue the legal points. Or they could simply decide to dismiss the case, as the purpose of the lawsuit was to force Bitter Smith from office and, by Tuesday, she will be gone.

The dispute is over state laws which says a commissioner cannot be “in the employ of, or holding an official relation to a corporation subject to regulation” or have a “pecuniary interest” in such a company.

In filing suit, Brnovich cited Bitter Smith’s role as a lobbyist for two affiliates of Cox Communications.

Novak countered that his client has no relationship with Cox Arizona Telecom, an affiliate that offers telephone services regulated by the commission. And he said conflict-of-interest laws do not extend to sister companies.

Brnovich also cited Bitter Smith’s role and $156,000 salary as executive director of the Southwest Cable Communications Association. But while some of the members also offer bundled phone service, Bitter Smith denied that gives her a pecuniary interest in any regulated entity.

Earlier this month, Bitter Smith announced she was resigning, saying the litigation and media attention have become a “distraction” from the work of the commission. But Novak, in his new court filings, said that still leaves the legal issues unresolved.

Novak said a ruling will “guide” the Attorney General’s Office about how and when to enforce the conflict-of-interest laws in the future. Potentially more significant, he said it will help those who are considering a run for office.

“Such guidance, if it had existed, would have avoided this precise issue, either by guiding Ms. Bitter Smith not to run or by guiding (the Attorney General) not to file this special action,” Novak wrote.

If nothing else, Novak contends the public has an interest in the question. One is whether she has been holding office illegally for the last three years, as Brnovich contends.

But Novak said the issue goes beyond that. He contends that if Brnovich has acted illegally, than it’s not just hic client who has been hurt.

“If Ms. Bitter Smith has been deprived of an office rightfully belonging to her, the public generally has suffered a wrong thereby,” he said. “The public is harmed by the wrongful deprivation (of someone who has been elected) whether by usurpation or by resignation.”

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