Legislators’ complaints of lawbreaking by cities on the upswing

Bisbee Mayor David Smith said he and the City Council faced a tough decision after the Attorney General’s Office found the city’s plastic bag ban ordinance was illegal.

The council could choose to stand up for what they thought was right – the charter city’s right to self-governance – or risk losing nearly $2 million in revenue from the state, Smith said.

“I as mayor could not commit our city resources to fighting this,” he said. “I can’t spend our public money or pledge our public money on a chance.”

Instead of appealing the attorney general’s decision, the Bisbee City Council voted last November to suspend its plastic bag ban ordinance and draft a new version that makes it voluntary for retailers.
But if roughly a quarter of the city’s annual budget wasn’t at stake, Smith said, he would have pushed to fight the decision.

“Plastic bags is the catalyst but the real issue is self-governance for a city,” he said. “The Constitution gives charter cities the ability to self-govern local issues. So when the state strong arms that position, what’s next?”

Bisbee is one of eight municipalities or counties in the state whose laws have been targeted by state legislators under SB1487, a 2016 law that allows any state legislator to ask the attorney general to investigate an ordinance, regulation or other policy enacted by a municipality or county to determine whether it complies with state law.

Supporters of the bill, which was sponsored by then-Senate President Andy Biggs, say it ensures uniformity of laws across the state, and is aimed at making cities comply with state law and not meant to punish them.

However, those who oppose the law say it’s heavy handed and doesn’t give cities any choice but to comply.

Investigating SB1487 complaints has also proven taxing for the AG’s Office because the law requires attorneys to work within strict time deadlines to investigate complaints against cities and towns, which requires resources.

State government has also grown as a result of the Republican legislation because the attorney general created a new unit to handle the lawmaker complaints.

Complaints increase

SB1487 passed in the Senate by a 17-13 vote down party lines, and in the House 32-24 with four Republicans joining their Democratic colleagues in voting against the measure.

Former Senate President Andy Biggs (Photo by Gary Grado/Arizona Capitol Times)

Biggs said in 2016 it could address illegal laws like Tucson’s gun destruction policy and Bisbee’s plastic bag ban – two laws that eventually were challenged under SB1487.

The AG’s Office has investigated eight complaints, all made by Republican lawmakers, since the law was enacted in 2016. The AG has found one city ordinance to violate state law, three that did not, three that may violate state law, and one complaint that was withdrawn.

If the attorney general finds that an ordinance may violate state law, then the office must ask the Arizona Supreme Court to settle the question of whether the ordinance is illegal.

The agency is currently investigating a complaint filed on February 2 by Sen. Sonny Borrelli, R-Lake Havasu City, who asked the attorney general to probe a Mohave County zoning ordinance.

AG spokesman Ryan Anderson estimated that each SB1487 complaint takes about 100 hours to investigate.

“We are exhausted,” he said. “It takes a lot of back and forth with the cities and towns, public records requests. Sometimes we have to go back to the representative and get more information if it’s not a very thorough complaint, all within 30 days.”

Attorney General Mark Brnovich requested nearly $1 million to pay for eight staffers in the newly established unit, which also focuses on election law complaints from citizens, open meeting law violations and misuse of public funds.

Anderson said the budget request is a sign that the agency expects more complaints to be filed. He noted that although the law was not something the attorney general asked for, nor were they provided the resources to investigate the complaints, the agency must comply with statute and they want to be prepared.

“There was a little bit of a lull after the Tucson case because people were waiting to see what happens, but from August 2017 to now there have been seven complaints filed,” he said. “We’re also seeing them come in concurrently and closer and tighter together.”

But for municipalities, especially smaller cities and towns like Bisbee and Patagonia, whose heavy truck ordinance came under fire last month, compiling the necessary documents to defend their laws within 30 days can be difficult and expensive.

It can also be costly for cities to fight back because they are required to pay the attorney general’s attorney fees if they lose. Tucson paid $100,000 to the agency after the state Supreme Court ruled against its gun ordinance.

Ken Strobeck

“(SB1487) was designed to basically put a city or town into submission because of the enormous cost of resisting and the absolutely unendurable cost of failing to modify the offensive ordinance,” said Ken Strobeck, director of the League of Arizona Cities and Towns. “The idea that you would lose shared revenue is just crippling.”

Smith said his city would have gone under if they didn’t comply.

Strobeck and Smith said it’s also hypocritical of Republican lawmakers who gripe about the federal government infringing on states’ rights to want to do the same to municipalities by filing SB1487 complaints.

Rep. Vince Leach, R-Tucson, who has filed two SB1487 complaints, disagrees.

“The U.S. Constitution grants states all powers not delegated to the federal government, thus the emphasis on local control by states is appropriate. In contrast, cities, towns, and counties are subdivisions of the state and only gain their authority from the state,” Leach said.

Repeal unlikely

Strobeck said the league is pushing for a repeal of SB1487, though he acknowledged lawmakers aren’t interested in repealing the law.

He argued that though the law gave legislators a new avenue to challenge municipal ordinances, laws that violate state law or the Constitution could already be challenged in court and SB1487 shortcuts that process.

Sen. Kate Brophy McGee (R-Phoenix)

Republican Sen. Kate Brophy McGee, R-Phoenix, introduced SB1374 this session, which would expand the amount of time provided to a municipality to resolve a violation to 60 days from 30 days, and create an avenue for a municipality to appeal the AG’s decision to the Arizona Supreme Court.

Her bill also includes a provision that a legislator must represent all or part of the municipality in order to file a complaint. Of the nine complaints filed, only three were filed by lawmakers who represent the area, while the majority were lodged by legislators who live far from the areas they’re complaining about.

“It should be part of that legislator’s community, be part of that area, and it’s something the cities and towns would like to have a conversation about,” Brophy McGee said. “Personally, I wouldn’t feel comfortable driving out to east Mesa or up to Mohave County and deciding something’s out of whack there.”

That provision is something the league supports, Strobeck said, because it will allow voters in targeted cities to hold legislators accountable.

“We believe that one of the most basic principles of a representative government is that you have the ability to vote for or against those who represent you,” he said. “The way 1487 is written, the lawmaker never has to be accountable to the voters in that community.”

Leach said he did not support prohibiting a legislator from filing a complaint against a municipality outside of their district. Neither of the complaints he has filed were filed against cities he represents.

“Political considerations may make legislators hesitant to challenge violations in state law occurring in their own districts,” he said. “I swore an oath to uphold the laws of the state, not just those that apply to my district.”

Brophy McGee’s bill has not yet been heard in committee.

Strobeck said, “The best we can hope for in this session is to at least make it a little bit more fair and have some equity between the person making the complaint and the one they’re making the complaint about.”