AG rules Bisbee bag ban illegal

Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)
Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)

The City of Bisbee’s ban on plastic bags violates state law and must be rescinded, according to Arizona Attorney General Mark Brnovich.

The finding is the latest loss for Bisbee, which prohibited local retailers from providing single-use plastic bags to customers in 2014. State lawmakers then banned such local ordinances the following year, and now the attorney general has weighed in following a complaint from Sen. Warren Petersen, a Gilbert Republican.

City officials now have 30 days to tell the attorney general how they’ll resolve the violation — likely by rescinding the plastic bag ban — or risk losing Bisbee’s portion of state-shared revenue provided by the state treasurer.

Brnovich found that the city’s bag ban specifically violated state law that prohibits cities and towns from regulating “auxiliary containers” such as disposable bags. Bisbee City Attorney Britt Hanson even acknowledged the discrepancy between state law and city ordinance in a letter to the Attorney General’s Office, Brnovich wrote.

Hanson argued that regulating the use of plastic bags is a matter of “purely local interest,” an argument Brnovich rejected.

By adopting a state law that prohibits cities and towns from regulating plastic bags, legislators staked their claim that the matter was of statewide interest — to avoid regulations that burden small businesses, and to ensure consistent regulations by cities, counties and towns, Brnovich wrote in his investigative report.

Petersen pushed for that law in 2015. At the time, Bisbee was the only city with a bag ban in place, but several other cities, including Tempe, were mulling similar bag bans before the law was passed.

Hanson told the Capitol Times that Bisbee officials would meet October 30 to determine if they would rescind their ordinance or take the matter to court, something city officials have expressed a desire to do.

“I’ve obviously had discussions with the council before about this, and the sentiments are very, very strong in terms of fighting this matter,” Hanson said Tuesday. “But of course, people’s calculations can change as the process moves forward, so I need to check with them to see where they’re at.”

The ban on plastic bags in Bisbee, where paper bags from recycled material can be provided with retailers required to charge a nickel, has resulted in a cleaner community and lower costs for retailers. The result, Hanson said, has been a cleaner community and lower costs for retailers.

Brnovich said there’s nothing wrong with that goal, and that he’s “very sympathetic” to what the city wants to accomplish.

“I think it’s laudable,” Brnovich continued. “In fact, in their response to us there was literally dozens and dozens of local businesses in Bisbee that liked this ban.”

But Brnovich said there’s nothing to be done as long as state law bars cities from enacting such rules.

The odds of the city winning a challenge to those state laws appear slim. Earlier this year the Arizona Supreme Court looked at a Tucson ordinance which required police to destroy weapons that are seized or surrendered. Officials from that city argued that it, too, is a charter city and that what happens to guns is none of the state’s business.

But the justices unanimously noted that the Legislature had approved various laws declaring the regulation of guns to be a “matter of statewide concern.” And that, they concluded, overrode the city ordinance. The justices strongly suggested they believe that the right of charter cities to ignore state laws applies only in two areas: how and when cities conduct local elections and how they decide to sell or otherwise dispose of land.

Still, Hanson said he believes there’s a winning argument to be made in court if Bisbee officials decide to pick a fight with the state.

“I can say that I think the plastic bag ban ordinance is very distinguishable from the City of Tucson’s gun destruction ordinance. And there would be ample ground for a court to look at it quite differently than the Supreme Court looked at the City of Tucson’s ordinance,” Hanson said.

Hanson said the city will need help to fund such a lawsuit, citing rising pension costs for cities across Arizona and the recent fire that caused substantial damage to Bisbee’s historic city hall.

In the meantime, Brnovich noted there’s nothing stopping from Bisbee retailers from voluntarily sticking to the city’s ordinance, even if it was rescinded.

“If the businesses in Bisbee and the folks in Bisbee want to voluntarily not use plastic bags, no one is stopping them from doing it,” he said. And nothing in state law requires businesses to offer paper or plastic bags — or any bags at all for that matter — to their customers, Brnovich said.

Howard Fischer of Capitol Media Services contributed to this story.

Bisbee to AG: keep state’s nose out of bag ban

plastic shopping bags 620

The Bisbee city attorney told Attorney General Mark Brnovich Tuesday that his community’s regulations on plastic bags are none of the state’s business.

In a sometimes sharp worded letter, Britt Hanson detailed the city’s problem with blowing bags and the eyesore and expense they caused prior to adoption of a 2013 ordinance. That law prohibits retailers from providing free single-use plastic bags to customers; paper bags from recycled material can be provided with retailers required to charge a nickel.

The result, he said, has been a cleaner community and lower costs for retailers.

Hanson said there was no reason for the Legislature to approve a 2016 law preempting local governments from regulating these bags. In fact, he took a slap at those lawmakers who voted for the law to overturn the Bisbee ordinance without ever having actually been to the community.

“Although the law prohibiting Bisbee from banning plastic bags declares that it is a matter of statewide concern, it doesn’t say what that concern is,” he told Brnovich.  And without any legal basis, Hanson said that law cannot be used to force Bisbee to scrap its ordinance.

The letter sends the issue back to Brnovich who had gotten a complaint last month from Sen. Warren Petersen, R-Gilbert, accusing the city of violating the preemption law he had pushed through the Legislature.

A separate 2016 law requires Brnovich to investigate any legislator’s complaint that any city ordinance runs afoul of state laws. If he determines a city is acting illegally, he must move to withhold that community’s state aid.

There was no immediate comment from the Attorney General’s Office to Hanson’s letter.

Brnovich recently got the Arizona Supreme Court to rule that state laws prohibiting city ordinances dealing with weapons overruled Tucson’s right to order the destruction of guns which had been seized by or surrendered to police.

But Hanson, in his letter to Brnovich, said the Bisbee ordinance is different. He said the only basis cited for Petersen’s preemption was language added to the bill claiming that small businesses are sensitive to costs of local regulation and that allowing cities to each have their own laws “hinders a small business from benefiting from free and open competition.”

Hanson sniffed at that excuse.

“You would be hard pressed in the legislative proceedings of either the House or Senate to find any testimony or alleged facts on which to base such findings,” he told Brnovich. And he said no lawmaker ever even asked about the Bisbee ordinance already in existence that they were moving to quash.

“If they had, they would have found that Bisbee’s retailers have embraced it,” Hanson said. He attached a letter from Pam Rodriguez, the owner of Acacia on Main Street, who said she is saving between $500 and $600 a year on bags.

And he said that Safeway, the city’s largest retailer, provided the language for the model ordinance on which Bisbee’s regulation is based.

“Just because the Legislature decrees something is ‘statewide concern’ … does not mean it overrides the local concern,” Hanson said.

That goes to Hanson’s main argument that there is no basis for lawmakers saying they know what’s best for Bisbee and other local communities.

“If the businesses in Bisbee that the Legislature is supposedly protecting with HB 2131 have no issue with the bag ban, does the state really have an interest in prohibiting Bisbee from doing so?” he asked. “And really, who should decide how best to combat Bisbee’s blight and litter: the citizens of Bisbee and their representatives, or state legislators most of whom probably have never even visited Bisbee and have no clue as to its local concerns?”

That, however, still leaves the legal question of how far cities can go in enacting their own rules when state lawmakers say otherwise.

Hanson pointed out that Bisbee is one of 19 cities that has taken advantage of a state constitutional provision allowing it to have its own charter. Those cities have generally been empowered to write their own ordinances on matter of strictly local concern, regardless of conflicting state statutes.

For example, the Arizona Supreme Court has upheld the ability of charter cities to decide how to elect members of their councils and on what days to have those elections despite legislation to the contrary.

But in its August ruling on the Tucson gun ordinance, the justices unanimously concluded that charter provisions and the law enacted by charter cities must be consistent with both the Arizona Constitution and general state laws.

Hanson conceded the breadth of that ruling. But he told Brnovich — and essentially prepped for what could be his argument to the Supreme Court if Brnovich sues — that it makes no legal or logical sense to have a blanket rule that lawmakers can do whatever they want to cities.

“If Bisbee’s exercise of its charter powers to eliminate local litter and blight can’t survive, it’s hard to imagine what possible could,” he wrote.

“The notion of charter cities would become a joke,” Hanson continued. “The Legislature could crush any independence of charter cities, and thus override the (Arizona) Constitution, simply by declaring anything to be a matter of statewide interest, as they have attempted to do here.”


Bisbee to change disposable bag ordinance to duck budget hit

plastic shopping bags 620Bisbee plans to avoid a possible big budget hit by making voluntary the city’s ordinance that now prohibits retailers from providing shoppers with disposable plastic bags.

The City Council’s decision late Monday responds to state Attorney General Mark Brnovich’s recent conclusion that Bisbee’s ban violates an Arizona law barring local governments from imposing regulatory mandates on disposable bags.

Bisbee faced losing state funds if it didn’t resolve the violation, and City Attorney Britt Hanson says the loss of $1.8 million of state-shared revenue “would be a death sentence for the city.”

Hanson says the revised ordinance will include a provision to reinstate the mandatory ban if a court rules it’s legal. 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Cochise County Attorney Allen R. English

9-14-times-pastAllen Robert English, born in Saginaw, Michigan, in 1858, earned a law degree by age 19. His father was a well-to-do shipbuilder and his mother was from a pioneer Irish family, the Fitzgeralds of Maryland.

English arrived in Tombstone in 1880, where he worked for a while as a prospector but failed to make great strikes. Then he met an attorney, Marcus Aurelius Smith, and these two colorful Arizona characters formed a law partnership. Before long, English was appointed Tombstone justice of the peace.

At the time, Tombstone was the Cochise County seat. On May 23, 1887, he was appointed Cochise County district attorney when the existing county attorney, Ben Goodrich, resigned. (During Arizona’s territorial days, county prosecutors were called district attorneys, but after statehood they were designated county attorneys).

English seems to have served the county well and was elected twice to the office after his first appointment.

He was a big man with a rich, sonorous voice and loved making speeches. His courtroom arguments, which went on for hours, were spiced with Latin quotations and references to Shakespeare, motherhood and the flag. It mattered not whether he was defending or prosecuting, and in those days the public prosecutor did both, he threw himself into the rhetoric with abandon. Often in the midst of one of his oratorical excursions, he would lean over and ask the bailiff for a chew of tobacco.

He had a failing, however. He was a prodigious drinker. Old-timers remembered his defense of an accused murderer named Wiley Morgan. When it came time for closing arguments, English was in a saloon, “stinking drunk.” A couple of bar room roustabouts heaved him into a buggy and hauled him off to court. He gave a brilliant defense discourse, and his client was found innocent.

But drinking took its toll on his career and his personal life.

English was cavalier with money and not above extravagant billing for his legal work. While working as an attorney for Calumet and Arizona Mines at the time they were purchasing Irish Mag Mine, English billed the company $25,000 for examination of one title. The company paid the fee, but told English they would look for another attorney.

That was fine with English; he and his wife were off to the East on a grand vacation. When they returned to Tombstone, English had only $20 left after he paid his bar bill.

English’s drunkenness affected his marriages. His first wife, Fannie Rosie Carr, divorced him for his drinking. He married Margaret Josephine Alexander on February 25, 1908, but she soon filed for divorce citing his drunkenness. About 1900, English became a candidate for U.S. district attorney for the Territory of Arizona. He lost the appointment because of his behavior.

He had made a bet in a Tombstone bar that it would not rain on June 24, San Juan Day. And if it did, he said he would “strip naked and stand under that water spout.” There was a downpour that day and Allen R. English, attorney, stepped outside the door of King’s Saloon stark naked and stood under a water spout.

Someone took a photograph of him standing naked and attached it to his application for U.S. attorney with a note: “This is the man you are considering for U.S. District Attorney?”

When the county courthouse moved to Bisbee in 1929, English moved, too. One night he was found drunk in town and someone spread the word that he had died. In fact, he lived until 1937. He died in Douglas on November 8 that year.

This Times Past article was originally published on June 1, 2001.

Photo courtesy Cochise County Historical Society; research by Jane Eppinga ©Arizona Capitol Times.

Lawmaker in feud with Glendale proposes pay cap for city workers


A state senator at odds with his own city government wants to cap salaries for municipal employees throughout the state, a move city officials say could hobble efforts to attract and retain good government workers.

Sen. Paul Boyer, R-Glendale, announced on Twitter Tuesday he plans to introduce a bill next session prohibiting nearly all city employees from earning more than the governor. At Gov. Doug Ducey’s current salary, that would mean no municipal employee could earn more than $95,000.

“I’ll be exempting our true heroes, cops and firefighters, of course,” Boyer wrote. 

Boyer did not return a text or multiple calls seeking comment. 

Paul Boyer
Paul Boyer

Ducey’s $95,000 is already on the low end for governors. Only two — Colorado Gov. Jared Polis, who makes $90,000, and Maine Gov. Janet Mills, who earns $70,000 — have lower salaries than Ducey, according to the Council on State Governments

The figure is also well below what high-level municipal employees make nationwide, even in smaller cities. Arizona cities tend to follow a council-manager form of government, in which elected city councilors and mayors provide direction to a full-time city manager who then runs the city’s day-to-day operations. 

Phoenix City Manager Ed Zuercher makes $315,000 annually — more than three times the cap Boyer wants to install. Other large Valley cities pay their top executives more than $200,000 annually, while even the 5,500-population Bisbee was advertising for a city manager at a starting salary between $100,000 and $120,000 this spring. 

Other high-level bureaucrats, including city attorneys, public works directors, municipal judges and long-tenured police and fire officials, frequently earn salaries in excess of $100,000. 

Tom Belshe, deputy director of the League of Arizona Cities and Towns, said the bill Boyer plans to introduce would affect leaders in many communities, particularly large cities in Maricopa County. The high salaries those top employees receive now are competitive, he said. 

“Since the jobs that the managers do affect things like economic development and other important issues, it would have an effect,” he said. “It would be hard right now to talk about the extent of it, but obviously it would be detrimental, especially to the ability to retain quality employees in Maricopa and Pima and some of the larger communities in the state.”

Boyer’s pitch to cap municipal pay stems from a long-running tiff with leaders in Glendale over how the city is implementing a 2017 law Boyer wrote that states that cities must presumptively consider certain cancers affecting firefighters related to carcinogens they were exposed to while fighting fires. Because of the law, cities would be expected to pay for treatment of those cancers.

Glendale initially refused to pay for cancer treatment for fire Capt. Kevin Thompson, whose multiple myeloma is one of the cancers listed in the 2017 law as being related to carcinogens firefighters encounter on the job. It later reversed that decision, under public pressure from Boyer.

The senator met with Glendale City Manager Kevin Phelps earlier this week and tweeted his plan to cap city employee salaries as a “way to realize some savings” because, he said, Phelps kept talking about how expensive it would be to cover cancer treatment for firefighters. 

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.

Sen. Andy Biggs (Photo by Gary Grado/ Arizona Capitol Times)
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
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)
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.”

Let’s let PSPRS wither away

Dear Editor:

The single best thing that could be done for Arizona cities when federal stimulus money arrives Governor Ducey, would be for the state to pay the next six months of the Public Safety Personnel Retirement System, or PSPRS, payments for any city that requests it.

Bisbee would be most grateful for that one decision since 19.1%, or $1.4 million of our general fund budget is consumed by PSPRS payments. If those payments were made by the State, that money would be freed up to meet the extraordinary problems (service cuts, equipment failures, employee layoffs) caused by the precipitous decline in sales tax revenue.

In the long term, the best thing you could do for the health of Arizona cities would be to advocate for and lead a huge reform of the PSPRS. Year after year state legislators, including long time Cochise County politicians Rep. Gale Griffin and Sen. David Gowan, have shown no desire to deal with the looming PSPRS debacle facing cities.  It is time for your leadership Governor.

The retirement system for police, fire, legislators, and judges is in dire straits beset by poor administration, sex and spending scandals, bad judgment, sketchy loans, terrible returns on investments, and old-fashioned incompetence.

What is needed is one retirement system for all state employees. Although there may have been a case to be made for disparate systems many years ago, there is no rational reason for the current splintered systems. It is a relatively simple matter to shift actively employed pension participants and all new hires into the Arizona State Retirement System effective the start of fiscal-year 2022 and allow PSPRS to wither away, but with a dedicated funding source, such as a percentage of a new gas tax, to protect retirees.

Overhead would be reduced by abolishing the current administrative apparatus of and appointing a four-person committee to oversee investments. As current retirees pass on, the amount needed to service the PSPRS fund would begin dropping and eventually fade away to nothing.

Although it sounds complicated it really isn’t. Pension formulas are used for all pension systems. ASRS, a well-run pension system by all accounts, would benefit by the steady influx of ‘new’ cash just at a time when many in the system will be retiring.

With this kind of change active participants would be secure in the knowledge their pensions would be protected-and not at the whim of cities who may face bankruptcy due to the current onerous system. And public safety pensioners would be assured of continuity in their benefits. Cities would not have to face making decisions about cutting services to finance pensions.


Fred Miller, owner, Copper City Inn, Bisbee

Nick Ponder: Man about cities and towns and lobbying

Nick Ponder (Photo by Paulina Pineda/Arizona Capitol Times)
Nick Ponder (Photo by Paulina Pineda/Arizona Capitol Times)

Nick Ponder, the new legislative director at the League of Arizona Cities and Towns, said his goal is to reintroduce the organization to the Capitol community. He said for a long time the league has been seen as a Democratic-centric organization, which has cost it votes from some of the more conservative members of the Legislature. But he plans to change that image.

Ponder, who worked as the group’s pension policy analyst, took over for Patrice Kraus in early June after she retired. Previously, he worked for the Arizona State Retirement System and for the Fire Department of New York Pension Bureau.

Cap Times Q&AHow did you get into lobbying?

I never envisioned myself in lobbying or government relations or anything like that. But the government relations officer at the State Retirement System left in November or December 2013 and the director of the State Retirement System asked me if I would be interested in applying for the job. And we had a conversation and it was just sort of, you know, things just sort of fell into place and I found something that I enjoyed and hopefully something that people think that I’m good at – and that’s how I got here.

Some lobbyists have one client or one cause they represent. You represent 91 cities and towns. Is that difficult?

Our view at the league is that, you know, Peoria is different than Tempe, and Prescott is different than Bisbee. The politics of those cities are different. We believe the government closest to the people governs best and that is one of our main principles here. We do not care if it is Peoria or Tempe, those councils are well positioned to respond to the desires of the citizens that choose to live there and we believe they should have autonomy of self-government, which makes that city or town unique. And so for things that impact cities universally on sort of a local control matter, it’s actually pretty easy to come to an agreement.

You mentioned that the league has a reputation of opposing bills.

I think that the league has been sort of pigeonholed into a box in recent years, and I don’t fault anybody on this, but where people have said the league doesn’t want to negotiate on anything or we just say no, and that couldn’t be further from the truth. We helped negotiate the “small cell” (technology) bill two years ago and we were the first state in the country that did that. … So there’s major pieces of legislation that we’ve, you know, (post-traumatic stress disorder) bill or the food trucks bill, that we’ve negotiated every year. It’s just that there are certain times where we do have to say no and stand in defense of our cities.

What are some of the hardest bills you’ve worked on?

There are two bills that were significantly challenging this year that I worked on. I think one is the PTSD (post-traumatic stress disorder) bill for police and fire. It ultimately ended up being HB2502. And you know that was a bill that was driven by a lot of passion on both sides. The cities want to take care of their police and fire folks because these are our employees, they’re our neighbors, but at the same time the cities have to be sensitive to being careful stewards of government money and so we had to figure out what was the best way to marry those two things to come up with a compromise bill. And then the other one was the digital goods legislation that I jumped in on sort of at the tail end of that but was helping out throughout the session with not only responses and research but ultimately sort of lobbying at the end.

The U.S. Supreme Court ruled earlier this month that states can collect sales taxes on internet purchases. How do you think that will affect Arizona?

I think from our perspective at least, the world is no different than it was a couple of weeks ago. We have always said that we thought taxes would be permissible on these items. This sets up a level playing field or ensures a level playing field between brick and mortar businesses versus online businesses.

Do you think the digital goods bill (on taxing internet sales) will come back next session?

You know, it depends on what the industry wants to do about that. But I would envision that we might hear some conversation about it coming up in the next few months. But again, I think from our perspective, it’s not going to be this huge windfall of funds for cities because a lot of these folks have already been withholding taxes like Amazon and Walmart and Target and these other entities.

If it does come back, will the league oppose it?

I think it certainly depends on what form it comes back in. If it came back in the same form as it did this year, the league would certainly be opposed because these are revenues that cities have been relying on to provide public safety and other services to our citizens.

It may be too early to say but what do you think will be some of the big issues next session?

Quite frankly I think the biggest question is what’s the makeup of the Legislature going to look like next year? And so I think there’s a lot of things that are up in the air right now. … I think there’s a chance we could see, if not digital goods, something at least addressing that subject, something sort of small addressing that subject. I think we’ll see obviously more stuff around education and the potentially available money that’s out there. There’s certainly going to be something to do with transportation. I think the interesting thing is that every year is a surprise and we just have to be prepared for that.

Do you think a different makeup would make your job easier or harder?

We’ve sort of been put in this box where we’re viewed as a Democratic-centric organization. People say Democrats are more favorable to us. They have voted more in our favor but I don’t think it’s a fair representation. We have Republicans that we work with all the time. And even though most of our cities have nonpartisan elections, I think if you asked most of our council members they’re probably from the conservative party. And so we might get more favorable votes from Democrats, but I don’t think we’re reliant on any one group.

Petersen asks Brnovich to probe Bisbee’s plastic bags ban

The City of Bisbee’s ban on plastic bags is still bothering lawmakers, who already passed a law to bar bag bans.

Rep. Warren Petersen (R-Gilbert)
Sen. Warren Petersen (R-Gilbert)

Sen. Warren Petersen, R-Gilbert, has filed a complaint with the Attorney General’s Office and asked if the City of Bisbee’s ban on single-use plastic bags violates state laws.

Bisbee prohibited plastics bags in 2014, and lawmakers responded with legislation banning such local ordinances the following year.

Cities across the country have banned plastic bags as a way to lessen environmental impacts associated with the disposable bags, like littering and recycling problems.

In 2015, lawmakers approved legislation sponsored by Petersen that made it illegal for local governments to impose a fee or deposit on plastic bags.

At the time, Bisbee was the only city with a bag ban in place. Several other cities, including Tempe, were considering a ban before the law passed.

Bisbee, along with Tempe City Councilwoman Lauren Kuby, sued the state over the law, arguing it is unconstitutional. Kuby was dismissed as a plaintiff because she lacked standing since Tempe did not actually have a bag ban. Meanwhile, Bisbee voluntarily dismissed the lawsuit earlier this month, the court docket shows.

Petersen told the Capitol Times citizens and businesses should be able to rely on cities to abide by laws, and keeping a bag ban on the books blatantly disregards the law.

“It may not be the most important law to some people, but it’s tyranny all the same,” Petersen said in a text message.

Petersen filed his complaint under SB1487, a 2016 law that allows lawmakers to ask Attorney General Mark Brnovich to investigate whether local governments are flouting state laws. There have been four such complaints investigated by the Attorney General so far.

Ken Strobeck
Ken Strobeck

Ken Strobeck, director of the League of Arizona Cities and Towns, which opposed both the plastic bags ban and SB1487, said Bisbee now has less litter because of the ban.

“Everybody seems to be getting along with that fine and they like doing it down there,” Strobeck said.

Strobeck said today’s complaint is further proof that the process spelled out under SB1487 is inappropriate. The Legislature shouldn’t be intruding on cities’ duties, and if legitimate differences of opinions exist as to what cities can or cannot do, the courts should iron those out, he said.

Instead, SB1487 can be “misused and abused,” and it allows the state to threaten cities with withholding state-shared revenues, which fund vital local government services, if a complaint is found to be valid by the Attorney General, Strobeck said.

“It’s killing a fly with a sledgehammer,” he said.

Calls to the City of Bisbee were not immediately returned.

The AG’s office has 30 days to investigate the complaint.

Republican lawmaker takes aim at public schools

Rep. Kelly Townsend
Rep. Kelly Townsend

Rep. Kelly Townsend wants school district employees and board members investigated at the whim of any legislator who questions the legality of their policies. And she wants the Attorney General’s Office to do the job despite the strain already imposed on the office by existing law.

The Mesa Republican’s proposal in House Bill 2018 would expand a 2016 law that allows any state legislator to ask the attorney general to investigate an ordinance, regulation, order or other action taken by a municipality or county to determine whether it is in compliance with state law.

The bill would require the attorney general to investigate any policy, procedure or other official action taken by a school district governing board or any school district employee that lawmakers allege violates state law. If investigators find the law has been broken, the superintendent of public instruction would be directed to withhold up to $5,000 per violation from offending districts’ state funding.

The existing law, passed as SB1487, requires that the investigation be completed within 30 days of a legislator’s request, a timeframe Townsend has adopted in HB2018. And that may spell hardship for investigators.

According to the attorney general’s tally, the office has received 11 complaints, all by Republican lawmakers, since SB1487 was enacted. At an estimated 100 hours per investigation, that’s months of man hours.

AG spokesman Ryan Anderson said the 30-day timeline is not effective. He said it puts an incredible strain on everyone involved, including the subjects of complaints, and expanding the statute to another level of government will only exacerbate the problem.

“To expand that statute to every [district] employee, thousands of employees, I just don’t see a way,” he said.

But Townsend said SB1487 must be extended to school districts because laws have been broken without consequence for years.

“The things that are happening at the school level have been overlooked for long enough that people are offended that we’re asking them to abide by the law,” she said.

A state law already forbids the use of public school resources to influence elections and allows violators to be penalized.

But Townsend said the law has no teeth and may not be enough for some officials to take action. She said Attorney General Mark Brnovich won’t hold that office forever, and those who come after him may think they have bigger fish to fry than district employees potentially using school resources to influence elections.

“We as legislators, at least Kelly Townsend, think that this is a big enough fish to take care of,” she said. “Our election process has to be pure.”

Anderson said the Attorney General’s Office would continue to meet legislators’ expectations – expansion or not. Still, any expansion of powers under SB1487 would have to come with corresponding increases in staff resources, he said. The office did receive additional funds for the unit investigating claims last year, but he said that only covered the office’s needs to enforce the law as it currently stands.

For the sake of the election process, Townsend saw no problem with that.

“I am willing and will support whatever it takes to get to that place where our voters can be confident that the process is protected,” she said. “And if that means more money, then by all means, put that money there.”

But even with more available dollars, Anderson said the Attorney General’s Office has argued the current law could be fine-tuned, including to provide flexibility in terms of the timeline.

“The last thing that our office wants to do is just half-ass an investigation and say we didn’t have enough time to come to a conclusion,” he said. “That’s not justice.”

The “drop everything” timeline is tough enough for the Attorney General’s Office to keep up with let alone small municipalities trying to fulfill the office’s requests, he said.

Phoenix and Tucson may have resources readily available to give investigators what they need, but places like Bisbee and Snowflake, both of which have been investigated under SB1487, may not.

And there is one significant difference between SB1487 and Townsend’s HB2018.

SB1487 gives municipalities and counties found to have broken the law 30 days to resolve the issue. Take Bisbee, for example. The Attorney General’s Office determined in 2017 that its plastic bag ban ordinance was illegal as it conflicted with state law. Rather than appeal the decision, the Bisbee City Council voted to suspend the ordinance and draft a new version making it voluntary for retailers. It was either that or lose nearly $2 million in revenue from the state.

Townsend’s bill does not include a grace period for school districts to take corrective action.

She said that’s because the damage is already done when it comes to electioneering.

State law already forbids the use of public school resources by employees to influence elections.

In fact, the Phoenix Union High School District recently fined two of its teachers for advocating for the Invest in Education Act at school.

The teachers, not their districts, were held responsible.

Anderson said the current statute says an official action must be taken by a governing body to have a violation of the law. If lawmakers want the statute to apply to every city employee, or every school district employee in this case, they have to change the existing law.

And that’s a decision that should be considered carefully, he said.

Editor’s note: This story has been updated to include comments made by Rep. Kelly Townsend.

The Sanitary Milk Crusade


“Local Milk Fails the Standards” announced the headline of the Bisbee Daily Review on June 18, 1914. The following day more alarming news greeted citizens as they read: “Conditions of Milk Bad in District.”

The headlines announced the results of tests on Bisbee-area milk supplies performed by the state bacteriologist in Tucson. It was all part of a plan by the city of Bisbee Board of Health and City Physician Dr. Herendeen to stop the spread of infectious disease.

On June 19, the Review reported: “Ten dairies selling milk in the Warren District and particularly in the City of Bisbee have had their licenses held up pending their raising the standard of the product they sell to comply with the requirements of the city ordinance … in some cases, [the milk] is absolutely injurious due to foreign substances contained in it.”

The dairies, located in the San Pedro Valley, the Sulphur Springs Valley and a few in Bisbee failed to meet the standard for butter fat content (3%) and contained bacteria and foreign matter injurious to human health. The newspaper reported sickness traced to the tainted milk.

The Bisbee Daily Review backed the city physician in an editorial June 19: “Coming as it does early in his administration, Dr. Herendeen has given proof of official vigilance in revealing a situation which is a menace to the entire community as long as it is permitted to endure. It is difficult to understand, however, because of the indicated general practice of all the dealers to sell spurious milk, why their evil dealing[s] were not discovered before this.

“A pure milk supply is no less important than a pure water supply in contributing to the health of a city. The Warren District has ample assurance of the purity of its water supply, but it seems that the situation regarding milk has been grossly neglected.”

A dairyman, H.E. Bohmfolk, wrote to the Review to present the dairymen’s side of the story. He argued it was difficult to bring up the butter fat content to standard because of the lack of shade, water and grass in the region. He explained that it cost a great deal to feed his cows the extra grain it would take to meet the standard.

As to the impurities in the milk, he blamed customers for not cleaning the milk containers when they were through with them. He wrote: “I have seen cans and jars, of my own and of other dairymen, put out to go back to the dairymen, which were not only filthy, but which actually contained animal life, even with maggots working in the decayed filth – and all because a careless ignorant housekeeper, servant or attendant in some public place had not washed the bottle or can after emptying it. This is really a criminal offense.”

The health authorities pressed for better sterilization of milk equipment and continued monitoring of milk. Dr. Herendeen promised to publish a “White List” of dairies whose product passed the health code. The first list appeared on the front page of the Review on July 19, 1914, about a month after the effort began. Warren Ranch, Sam Medigovich Dairy, Portage Lake Dairy and G.A. Hardt Dairy all passed the health test.

Dr. Herendeen reported every sample to have improved and that “there are but few dairies now operating in the district and city which have not brought their product up to the standard as set by law.”

This Times Past article was originally published on July 13, 2001.

Photo courtesy Bisbee Mining and Mineral Museum.
©Arizona Capitol Times.