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GOP lawmaker looking for way to remove indicted elected officials

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A three-term state lawmaker is writing legislation to allow county supervisors to oust a sitting assessor or treasurer if that person is indicted.

The proposal by Rep. Anthony Kern, R-Glendale, would require a two-thirds vote of the board to fire either official. That amounts to four supervisors in counties with five-member boards and two out of three in other counties.

But the measure could run into trouble with some of his colleagues as it would be a simple indictment – and no requirement of a conviction – to invoke the removal process.

“I believe in innocent until proven guilty,” said Sen. David Farnsworth, R-Mesa, who chairs the Senate Government Committee.

Anthony Kern

Anthony Kern

Kern’s measure comes as Maricopa County supervisors have been told by their attorneys that they have no right to dismiss county Assessor Paul Petersen despite his indictment on various state and federal laws dealing with his international adoption service and the fact that he has been unable to come to the office because he is sitting in a federal detention facility.

Absent a conviction on charges of willful or corrupt misconduct, about all they can do is suspend him for up to 120 days, an action they have vowed to take this coming week. But Kern said that’s insufficient, leaving an official on the public payroll.

“I think it’s kind of preposterous that (with) an elected official there’s no way to remove them,” he said.

Farnsworth, however, questioned the whole concept of removing someone who has been elected by the public based solely on an indictment which is nothing more than a formal charge or accusation, generally of a serious crime.

That’s also the concern of Rep. John Kavanagh, R-Fountain Hills, who chairs the House Government Committee, who pointed out the nature of grand jury proceedings that result in indictments.

“I’m a bit uneasy about throwing somebody out of an office based upon a judicial proceeding in which the accused or his lawyer conceivably had no ability to defend themselves,” he said, noting that all the evidence at that stage comes from prosecutors.

David Farnsworth

David Farnsworth

And even Kern acknowledged that using indictment as a trigger for a vote of the supervisors may be a bit much.

“An indictment might be a little too lax as far as removal from office,” he told Capitol Media Services. “I might want to tighten that up and make it an actual conviction.”

Kern said he’s also moving carefully given the nature of what he is proposing.

“I want to be very careful because the voters did elect these officials,” he said.

There are other questions to be answered.

One is the question of the nature of the crime being charged.

In Petersen’s case, the state is charging fraud, saying that he enrolled pregnant women he brought here from the Marshall Islands in the state’s Medicaid program. The federal charges relate to human trafficking.

But there are more minor offenses that are criminal, including drunk driving and driving at more than 20 miles over the posted speed limit. Kern said though that, as far as he’s concerned, any indictment on any crime should be enough to allow for removal.

“If you’re an elected official … you should be leading by example,” he said.

And Kern said the safeguard is that two-thirds vote: It leaves it up to the supervisors to decide whether the crime charged is sufficient to remove the assessor or treasurer.

Kavanagh said there may be a middle ground, something that allows removal of a county official but requiring something more than a simple indictment.

He said it could be tied to the existing law allowing the supervisors to suspend an assessor or treasurer for 120 days.

John Kavanagh

John Kavanagh

That, said Kavanagh, would allow for some time for preliminary court hearings, providing more information about the crimes charged than the simple indictment. More to the point, he said it would give the accused official a chance to present more of his or her side of the case.

Only after that 120 days are up, Kavanagh said, could there be a vote on removal, even without a conviction.

Richard Elias who chairs the Pima County Board of Supervisors said he recognizes the current gap in state law about what happens when an elected county official is indicted.

“There needs to be some kind of remedy to this situation, especially when it involves crimes against children or violent crimes,” he said. “But we need to be very careful because, obviously, in this country, you’re innocent until proven guilty.”

Still, Elias said, “there has to be some remedy for taxpayers so that the work gets done.”

But Pima County Assessor Bill Staples questioned whether such a removal process is necessary.

At the very least, he said, a properly running office would be staffed with competent assistants who could carry on the daily work even with the elected official absent. And Staples said that, as far as he can tell, that applies to the people working under Petersen.

“So I think the office is in very good hands,” Staples said.

And even if there is reason to oust a sitting assessor, Staples questions what procedures would be appropriate.

“I’m not sure that the jury, so to speak, or the executioner should be the board of supervisors,” Staples said. And Staples has had some disputes with the board, including having his agency’s budget cut, saying some of the decisions “I’ll call questionable.”

Kern said he may expand the scope of the legislation to apply not just to removal of the assessor and treasurer but also to other elected county officials including the sheriff, county attorney and clerk of the court.

One comment

  1. I congratulate representative Kern for his efforts to address the problems associated with removal of county elected officers, and pleased that he realizes that this is a matter that must be dealt with cautiously. The reason I say this is because the indictment of these officers, unfortunately, is not all that uncommon. In Maricopa County alone, four of the six assessors before the current assessor were indicted, and at least three of those were soon overturned on appeal. There have been several similar instances in other counties as well.

    I also would encourage cautious consideration before giving the county supervisors more authority over the other elected county officers. They already control their budgets and have the ability to delay filling critical staff positions.

    A few weeks before I assumed the duties as the Maricopa County Treasurer the supervisors transferred the entire IT division to their staff. This gave them access to all county bank accounts belonging to cities, schools and special districts, over 1400 accounts in all. As the treasurer I was personally liable for these accounts and having a situation where other parties outside of my control were able to access these accounts was a risk that made it necessary for me to take legal action to protect myself.

    My accounting division was responsible for monitoring invoices and payments for all county transactions. The employee that performed this duty retired and I was refused funding to refill the position. It was vacant for months and I again had to take legal action to protect myself. Soon after it was staffed we discovered an embezzlement scheme in one of the other agencies that ultimately cost the county (taxpayers) nearly a million dollars.

    I saw these acts as abuse of authority and granting additional authority to the county supervisors should be very narrow. Also, consideration should be given to the fact that the system has worked for many years, and legislation due to just one situation might be an overreaction. Requiring the governor to be elected by a fifty percent plus one majority vote comes to mind.

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