Senators mull penalizing absent state officials  

Senators are considering legislation that would tighten absence rules for several state entities, including the Legislature.

Last session, Sen. T.J. Shope, R-Coolidge, asked the Senate Ethics Committee to investigate rules around absences, suggesting changes so lawmakers who don’t attend meetings will be penalized.

The idea was inspired by Sen. Juan Mendez, D-Tempe, who did not come to the floor in-person since the onslaught of the Covid pandemic in March of 2020, citing concern about catching the virus. Mendez’s wife Rep. Athena Salman, D-Tempe, also didn’t come to work in person last session.

Shope’s complaint cited Mendez as the reason. No parallel action took place in the House regarding Salman, but the change Republicans are now considering would affect both bodies and several other governmental entities.

The Senate and House have their own chamber rules, but the guidelines on absence are written into state statute.

Mendez and Salman both said they’d return to the Legislature in-person this session, but Mendez hasn’t come in yet because he has Covid. Salman was present on opening day, but she got Covid the next day and hasn’t been back since.

Senate Rules attorney Chris Kleminich sent a memo to former Ethics Committee chair Sen. Sine Kerr, R-Buckeye, on Dec. 30, with his research on absence rules.

Arizona Revised Statute § 38-291 defines “vacancy.” An office is vacant if “the person holding the office” doesn’t carry out their duties for “three consecutive months.”

Currently, Mendez is listed as “vacant” because he still hasn’t been sworn in, which the rest of the members were on opening day.

Senate Majority Communications Director Kim Quintero confirmed that Mendez will be sworn in separately on another day.

Arizona’s “vacancy” statute applies to all public officers. Although seemingly straightforward, Kleminich included some potential snags in the statute and potential changes. For one thing, statute says that an officer will be labeled “vacant” if they don’t perform their duties, but the duties aren’t defined.

Also, public officers operate on many different timetables. The Legislature only meets for around six months of the year, but members shouldn’t necessarily be considered “absent” if they don’t show up for work in person for a three-month stretch during the six-month interim.

There’s also the question of whether remote work counts as work, or if time a lawmaker spends physically outside the Capitol and still working on Capitol business should count toward their absence.

Kleminich wrote in his memo: “If any Senator is to consider changing the law to make the standard for vacating office clearer, staff would offer two basic suggestions. First, the existing language could be supplemented with a definition or other language that specifies what it means to cease to discharge the duties of an office. Second, a separate statute focused specifically on legislative vacancies could be enacted. Such a law could define certain legislative duties and be tailored to legislators by accounting for potential differences in duties while in-session as opposed to out of session. If any Senator is to propose an amendment to A.R.S. § 38-291(7) to shorten the three month period, staff would note that there are significant legal questions associated with doing so.”

Kleminich also cited the 1970 Johnson v. Collins case where a Court of Appeals judge ruled “there is a strong presumption against a legislative intent to create a condition which may result in vacancy,” meaning that tightening the rules on public officers could be rejected by the courts.

Kerr was elected majority whip this session and gave up her place as chair of the Ethics Committee. That role will be filled by returning lawmaker Sen. David Farnsworth, R-Mesa, who said he may be pursuing the absence issue, but doesn’t know enough about it.

Shope said he spoke to other members of Republican leadership about the idea and they’re considering how to go about it. Shope said he thinks it’s “still appropriate” to do something and maybe shortening the absence timeframe to 45 days would be “reasonable,” to accommodate state agencies that only meet monthly.

As for the Legislature, he said there might have to be a specific rule.

Shope said that other public entities outside the Legislature would like to be involved in the conversation and are interested in seeing the rules change for their purposes, as well.

“It’s probably going to be a lot more holistic than I thought,” Shope said.