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Governing the conduct of legislators is tricky, unprecedented

detailed illustration of a blackboard with Code of Conduct text, eps10 vector, gradient mesh included

detailed illustration of a blackboard with Code of Conduct text, eps10 vector, gradient mesh included

When it comes to dealing with lawmakers like Republican Rep. David Stringer of Prescott,  Senate President Steve Yarbrough defers to advice he once heard from his son.

“My son… said that, ‘You know what we really need is to have a law that makes it against the law to be stupid,’” Yarbrough said.

Short of that, the Arizona House of Representatives may put in writing exactly how lawmakers should behave, a policy intended to go beyond the standard ethics rules governing their votes and a workplace harassment policy adopted in the wake of sexual harassment by former Rep. Don Shooter.

In fact, a rule change in the House requires them to do so.

Shortly after voting to expel Shooter, the House adopted new rules – one giving the speaker the authority to create a code of conduct for staff, the other mandating that representatives adopt a separate code of conduct for themselves.

House Speaker J.D. Mesnard has spent the interim since session adjourned working with House leaders to draft a code of conduct for staff. And he told the Arizona Capitol Times he plans to have it in effect before he hands the gavel over to incoming House Speaker Rusty Bowers on January 14.

As for a similar code for lawmakers, they never followed through, even after a joint announcement by Mesnard and Yarbrough of the creation of a bipartisan and bicameral committee to draft the code.

Rep. Randy Friese, D-Tucson, said Stringer’s latest round of racially inflammatory comments should elevate the priority of approving a code of conduct in the House. All it would take is a majority vote of the chamber’s 60 members.

The code could put in writing why it’s wrong for Stringer to say what he’s said. But it’s not so simple, according to lawmakers from both sides of the aisle.

“It’s tough to create a code of conduct that would dictate a person’s speech or attitudes,” said former Rep. Chad Campbell, who led the Democratic Caucus in 2013 and 2014. “I think that’s a slippery slope no matter how much you may be disgusted by whatever the person is saying.”

Broken Rule

House Rule 38, approved on February 8, states: “The House shall have a written code of conduct applicable to members.” At the time, Mesnard acknowledged that meant lawmakers would need to write such a policy, and later that month, Mesenard and his fellow Chandler Republican, Yarbrough, announced a joint committee tasked with writing it.

Yarbrough stated that the work “is important for the benefit of the public and the respective institutions,” while Mesnard said that while it’s “unfortunate” that a code of conduct is even needed, “legislators will certainly benefit from greater clarity.”

Four senators and four representatives were expected to serve on the committee, with an equal split of Republicans and Democrats.

But by the end of the legislative session in May, the committee had never met, simply because no lawmakers had even been appointed to serve on it. That left the House in violation of its own new rule.

There was nothing in Senate rules requiring the adoption of a code of conduct, but Mesnard, who represents the same legislative district as Yarbrough, convinced his seatmate to go along with the plan.

From there, the follow through on the part of the Senate was lacking, according to Mesnard.

“We had approached members, Republicans and Democrats in the House, about serving on that committee… We did not get the same level of enthusiasm from our friends in the other chamber,” the speaker said. “We gave it some time, but it just never went anywhere.”

By the time the House determined it was best to move forward on its own, lawmakers were in the thick of the campaign season. And given that the legislative session had adjourned, it made little sense for the current class of lawmakers to draft a code of conduct that wouldn’t be enforceable until 2019, when the House is back in session and could vote to adopt it.

“It kind of has been in purgatory until we get past the election,” Mesnard said.

Yarbrough took the blame for the hold up on drafting the code of conduct: “We were never all that enthusiastic, I’ll confess.”

Like the House, the Senate has a workplace harassment policy, which it updated and began circulating to lawmakers in the wake of accusations against Shooter, who spent most of his time at the Capitol as a senator. That, by Yarbrough’s estimation, is enough. Trying to put in writing anything else about expectations for lawmakers’ behavior gets complicated.

“It’d be a huge challenge to try and draft that,” Yarbrough said. “Do you want me deciding what’s stupid? Or do you want Senator (Martin) Quezada (a Democrat) deciding what’s stupid? Very difficult. Very challenging.”

On Notice

Mesnard said he plans to use his lingering authority as speaker of the House to leave in place a code of conduct for staff. And that code could provide a blueprint for Bowers, a Mesa Republican, to call for a vote of the House on a code of conduct applicable to lawmakers themselves.

That code could provide House Democrats a reason to pursue a complaint against Stringer. So far, the incoming Democratic leadership in the House has called for Stringer to resign or for the House to censure him, but they’ve stopped short of a call for expulsion.

Friese explained that’s because they can’t yet cite any written House policy that Stringer violated.

For example, lawmakers started an investigation of Shooter because they suspected he violated workplace harassment policies in the House. Perhaps that will be the case with Stringer, Friese said – his behavior next session, which starts on January 14, could be cited in a complaint against him.

“We’re going to be quite attentive to what his behavior is and what he’s been saying – how does that affect members,” Friese said.

Voters’ Will

Campbell doesn’t think it’s possible to put in a rule in writing that Stringer would seemingly break.

It’s just not likely that such a code would explicitly say, “don’t be racist,” Campbell said. Stating as much in writing would be more aspirational than authoritative.

“I don’t think you can, legally. You can create it, but I don’t think there’d be any teeth to it. That’s a freedom of speech issue at the end of the day,” Campbell said.

Other lawmakers can cite basic morals – or “human decency,” as Campbell put it – when calling for Stringer to willingly resign. And many have, from Republican Gov. Doug Ducey to the chairman of the Arizona Republican Party.

House leadership can also try other means to get Stringer to resign. Bowers has already punished Stringer by removing him from some, not all, his committee assignments. Campbell once took away office privileges from a representative he wanted to resign.

An expulsion, simply for a belief, would be “unprecedented,” Campbell said.

“I think it’s hard to police people’s personal opinions,” he said. “That’s up to voters.”

But it’s not as though it’s impossible.

Yarbrough acknowledged that the Arizona Constitution – which gives representatives and senators the power to expel one of their own for “disorderly behavior” by a two-thirds majority vote – doesn’t specify when or how an expulsion can occur.

The majority can decide whether it finds Stringer’s behavior qualifies as disorderly without citing a code of conduct or House rules.

That doesn’t mean lawmakers will go so far. As Friese said, some are hesitant to push for expulsion without a broken policy to point to.

“Perhaps it would be better, perhaps it would be easier, to identify stupid if you’ve got it in writing,” Yarbrough said.

Until then, lawmakers are left weighing the prospect of serving alongside Stringer against the prospect of moving against him. Quezada, a Phoenix Democrat, said he understands the rough spot Stringer put his House colleagues in, and that they’re probably wary of starting another expulsion proceeding.

“He was just re-elected with a significant number of votes. And an expulsion coming right on the heels of Representative Shooter, I don’t think anyone wants to go through that,” he said.

As lawmakers weigh the need to admonish Stringer against the will of voters in Legislative District 1, it’s hard to dismiss that Stringer was elected by more than 67,000 votes. That’s the second most of any House candidate in the deep-red district. His closest challenger, a Democrat, didn’t even get half as many votes as Stringer.

That shows at least some level of support for Stringer in the district, Yarbrough said.

“It’s like beauty is very much in the eye of the beholder,” Yarbrough said. “So similarly, stupid is probably in the eye of the beholder.”

One comment

  1. Arizona Eagletarian

    Has Mesnard or Yarbrough or Bowers or the Capitol Times consulted with NCSL about what any other state has for legislator codes of conduct? What about Congress?

    Is this complicated like rocket science?

    Rules of the US House of Representatives

    Rule XXIII – Code Of Official Conduct
    There is hereby established by and for the House the following code of conduct, to be known as the “Code of Official Conduct”:

    1. A Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.

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