AG: Officials must preserve public records even on private phones

texts, texting man

Public officials can’t use private phones or social media messages to get around public records laws, according to Arizona Attorney General Mark Brnovich.

In an opinion released this afternoon, Brnovich said public officials have a duty to preserve records that pertain to public business, even if they’re on private cell phones.

The opinion was requested by Democratic Sen. Steve Farley in December 2015 after a Capitol Times investigation found shoddy compliance with records requests for text and social media messages.

In that investigation, Arizona Senate Republicans refused to turn over any text messages, arguing that because elected officials had used private phones, the messages weren’t public records.

But case law does not back up that claim. The Arizona Supreme Court has decided that any documents, regardless of medium, are public records if they have a “substantial nexus” to government business.

Brnovich said communications on officials’ private devices aren’t inherently public records.

But, he said, “public officials have an affirmative duty to reasonably account for official activity,” regardless of whether their device or account is privately or publicly owned.

“In other words, public officials cannot use private devices and accounts for the purpose of concealing official conduct,” Brnovich wrote.

Still, Brnovich wrote, not all communications on government employees’ private devices or accounts are public records. If agencies had to maintain all records on private devices, as they must with certain records on state-owned devices, it would be “impossible” for agencies to manage.

Public employees also have privacy rights, he said, and classifying messages on private devices or accounts as public records could expose all of a person’s information on those accounts to a government agency as part of the record-keeping process.

But, Brnovich said, public bodies and officials have “independent obligations to record their work and otherwise maintain records.”

If a public official uses private electronic devices or social media accounts to conduct official business, it’s the duty of that official to record the activity to comply with public records statutes, Brnovich said.

Using a private device could “implicate the public official’s duty to provide a reasonable account of official conduct,” he added.

Dan Barr, a First Amendment attorney with Perkins Coie in Phoenix, said the opinion effectively confirms what’s already in the law. No one was arguing messages on private devices on private matters were public records, he said. Instead, it’s a “content-based” test – meaning if a message has to do with public business, it’s a public record, regardless of where it is located, he said.

And that’s Brnovich’s broad conclusion, though the opinion delves into whether all records on a private device would be a public record. Barr characterized the opinion as “poorly edited” and noted that an Attorney General opinion does not set a precedent or change any laws.

“What took them so long to issue this opinion? It took them two years to do this?” Barr questioned.

R15 026 I17 004 Issued Opinion (Text)

Few lawmakers chalk up perfect attendance and voting records

Only 24 Arizona legislators managed to both attend work on all of the days they were expected during the 122-day session, and push a button each time there was a vote.

House Speaker J.D. Mesnard responds to levity May 10 during a vote in the House on the final day of the 2017 Legislative session. (Photo by Katie Campbell/Arizona Capitol Times)
House Speaker J.D. Mesnard responds to levity May 10 during a vote in the House on the final day of the 2017 Legislative session. (Photo by Katie Campbell/Arizona Capitol Times)

Two of those perfect record-holders were Speaker of the House J.D. Mesnard, R-Chandler, and Senate President Steve Yarbrough, R-Chandler.

The adjournment of the 53rd Legislature’s first regular session marked Yarbrough’s eighth consecutive year with perfect attendance in the state Legislature. He has also voted on 100 percent of items up for vote since at least 2005, with one exception in 2011 when he only pressed his button for 99 percent of the 50th Legislature’s first regular session’s votes.

“My dad used to say to me, if you want to do a great job, you start by showing up every day,” Yarbrough said.

Thirty-one of Yarbrough’s legislative colleagues made it to work every day this session, too.

The Legislature only calculates attendance on the days the chambers actually do work, which is typically only Monday through Thursday. Some days the lawmakers vote more than once, and some days there are no bills up for vote at all.

All but three of Arizona’s state legislators pushed their buttons for at least 85 percent of floor votes during the 53rd legislative session.

The least frequent voter this session was Rep. Wenona Benally, R-Window Rock, who also happened to miss the most work days. She made it to 79 percent of her work days and only voted 65 percent of the time.

Sally Ann Gonzales, D-Tucson, had the second lowest voting record, only pushing a button for 78 percent of floor votes. Rep. Jill Norgaard, R-Phoenix, and Rep. Jesus Rubalcava,  D-Gila Bend, are not far ahead of Gonzales, voting in 83 and 84 percent of all floor votes, respectively.

The 86 other legislators voted at least 85 percent of the time, and 36 legislators voted 100 percent of the time.

Sen. Steve Montenegro, R-Litchfield Park, beat Rep. Daniel Hernandez, D-Tucson, for the second-worst attendance record by only 1 percent. Montenegro made it to the state Capitol 81 percent of the days he was expected. However, he still managed to vote 91 percent of the time. Hernandez showed up on 82 percent of his days and voted in 85 percent of floor votes.

Montenegro’s 2017 attendance and voting records both show a significant decrease in his overall presence from last year, when he was House majority leader and voted 98 percent of the time and showed up for 94 percent of his work days.



Goose and gander: Firm charges lawmakers hourly rate to gather signatures

A handful of incumbent Arizona legislators aren’t happy that the most prolific signature gathering firm in the state is treating them the way they treat citizens who propose or challenge laws via the ballot.

Andrew Chavez, the owner of Petition Partners, said he’s holding accountable GOP lawmakers who voted for HB 2404, a measure approved in April that ended the practice of paying circulators per signature for statewide ballot initiatives and referendums. The law, approved on party line votes by Republicans who claimed it would stamp out signature-gathering fraud, does not apply to lawmakers, some of whom pay to collect signatures to qualify for the ballot every two years.

That didn’t sit well with Chavez, who’s now using his prerogative as a business owner to deny legislators the option to pay per signature.

Andrew Chavez
Andrew Chavez

“I watched hours and hours of testimony and hours and hours of committee on the original HB 2404 and its spawns,” Chavez said. “I heard a lot of false narratives about fraud… If folks are going to use the rhetoric, they need to follow up.”

Seven incumbent Republicans have approached his firm asking for a quote for his services, Chavez tweeted Wednesday. And all seven were “upset” to learn that Chavez will only let them pay to have signatures collected at an hourly rate, the new business model used by ballot initiatives. For example, SOS Arizona paid some circulators by the hour this summer to help gather enough signatures to challenge a school voucher expansion law.

Chavez would not tell the Arizona Capitol Times which lawmakers approached him.

Some of the lawmakers who voted for HB 2404 have bought signatures to qualify for the ballot in the past. The bill’s sponsor, Republican Rep. Vince Leach of Tucson, paid at least $680 for signatures during the 2016 election.

Vince Leach
Vince Leach

Leach, who previously stated HB 2404 “restores some badly needed integrity” to the initiative process, claimed in House debates that a pay-per-signature ban need not apply to lawmakers because they can be un-elected, and that voter initiatives can’t be recalled. Those arguments ignore that fact that voters always have the option of repealing a voter-approved measure, while lawmakers can also send a referral to the ballot to repeal any voter-approved measure.

Chavez’s refusal to offer lawmakers per-signature quotes isn’t meant to be vindictive, but to hold legislators who voted for HB 2404 accountable for their statements and actions, he said.

“I never agreed with their argument, but if you’re going to make your argument, you need to stand by your argument,” he said.

Chavez is in a unique position to make sure legislators do just that. In his tweet, he repeated an old proverb heard often at the Capitol from those who opposed HB 2404: What’s good for the goose is good for the gander.

“I just wanted to point out the irony. I truly believe that folks at the beginning of the year didn’t understand how this was going to impact the market,” Chavez said. “We have a lot of leverage in the market, and I think the rules have changed.”

It’s now standing policy at Petition Partners to give all lawmakers quotes based on an hourly rate — Chavez noted it might be illegal to give Democratic lawmakers different rates that he denies to Republicans who voted for HB 2404. He’s also not sure if anyone will take him up on his offers to collect signatures with payment by the hour — of the seven who’ve approached him, none have accepted his quote, at least yet.

“I’m positive a few will have to,” he said. “I’m not waiting by the phone though.”

Lawyer: No one hurt yet by law restricting voter initiatives

The attorney for two top Republican lawmakers is laying the groundwork to quash a legal challenge to new hurdles they erected to voters creating their own laws.

During a preliminary hearing May 25, David Cantelme did not address whether the Legislature exceeded its constitutional authority by requiring those who propose initiatives to be in “strict compliance” with each and every election law. That is a significant change from current law which requires only “substantial compliance,” a standard that allows the public to vote on measures despite technical violations.

Instead, Cantelme told Maricopa County Superior Court Judge Joshua Rogers he believes there’s a legal flaw in the case by challengers, a flaw he contends bars the judge from considering their request to block the law from taking effect.

“If they haven’t suffered an injury, a real, palpable, discrete injury, they don’t have a case,” he said. And Cantelme, who represents Senate President Steve Yarbrough and House Speaker J.D. Mesnard, said there is nothing in the record so far that shows the various challengers will be harmed if they’re forced to have to live under the strict compliance standard.

Attorney Roopali Desai
Attorney Roopali Desai

But attorney Roopali Desai who represents challengers, objects to the fact that Cantelme wants to question her clients, ahead of the hearing, some of whom are people who have been involved in past initiatives.

Cantelme wants to ask them about future plans, an issue he said goes to the question of whether they actually would be harmed if the strict compliance standard takes effect as scheduled on Aug. 9.

Desai, however, told Rogers she sees something more sinister in what Cantelme is arguing.

“The (Republican-controlled) Legislature is going to try to get into facts relating to the strategy and details with respect to the who, what, when, and details of initiatives that the plaintiffs are not required at this stage to have to (disclose),” she said. “It would be completely inappropriate for the Legislature to get into those sort of political, strategic issues that they otherwise would not have access to.”

After the hearing, Cantelme did not dispute that he wants to ask the challengers about their future plans.

“I get to ask them what is appropriate for the case,” he said, refusing to be more specific.

Among the plaintiffs in the case is Matt Madonna, former regional president of the American Cancer Society. His organization was behind a successful ballot effort to ban smoking in public places.

Sandy Bahr is chapter director of the Sierra Club, which has been involved in various ballot fights including a ban on leghold traps on public lands and creating an optional system of public financing for state and local elections.

And the Animal Defense League helped get voter approval of a ban on “gestation crates” for calves and pigs.

Desai said all the plaintiffs do have an interest because she believes having to live under the strict compliance standard will make the initiative process more expensive. For example, she said, if innocent mistakes can have every petition voided, organizers may decide they don’t want to use volunteers.

“So you may have to move to an all paid-circulation effort because at that point you can be more assured that every ‘i’ is dotted, every ‘t’ is crossed,” she said.

“People should be doing that anyway,” Desai continued. “But you don’t spend millions of dollars on an initiative and think to yourself, ‘This is going to get thrown out for some minor defect.’ ”

The lawsuit is only one side of the effort to kill the new law.

A separate referendum drive has been launched to prevent the law from taking effect. If backers gather 75,321 valid signatures of registered voters before Aug. 9, the measure remains on “hold” until voters decide in November 2018 whether to ratify or reject what lawmakers have enacted.

Thorpe seeks to triple lawmakers’ salary

A Flagstaff Republican is seeking to nearly double lawmakers’ daily allowance and triple their salary.

Rep. Bob Thorpe (R-Flagstaff)
Rep. Bob Thorpe (R-Flagstaff)

Rep. Bob Thorpe, R-Flagstaff, also wants to remove the public’s say on future changes to legislators’ salary.

But Thorpe said constituents shouldn’t take his proposals as a sign that lawmakers are just “doing it for the money.” Lawmakers’ daily allowance rate hasn’t been adjusted in nearly 30 years, and they also have not seen a pay raise in 20 years, he noted. That, he argued, has made it difficult for lawmakers who aren’t retired, self-employed or independently wealthy to make ends meet.

Thorpe’s bill, HB2275, would tie the Legislature’s per diem rate to the federal rate.

In addition to their salary, lawmakers who live in Maricopa County receive a daily allowance of $35, while lawmakers who reside in other counties get $60. The current per diem rates, Thorpe said, aren’t enough to cover a “reasonable” room and meals at a hotel.

Under his proposal, which is co-sponsored by several Republican representatives, his colleagues from Maricopa County would get 25 percent of the federal per diem rate for Arizona, and those who live elsewhere would receive 75 percent of the federal rate.

The federal rate, which is determined annually by the U.S. General Services Administration, changes every few months in certain cities and counties, so the amount lawmakers would get under the proposal would fluctuate.

Thorpe said for lawmakers who live outside of Maricopa County, the new rate would work out to roughly $110 per day for meals and lodging, nearly doubling the current rate.

Thorpe also introduced HCR2016, which seeks to amend the Arizona Constitution to increase legislative pay beginning in 2020 to equal the annual salary of a supervisor from a county with a population of 500,000 or more. That would more than triple lawmakers’ salary – from $24,000 to $76,000 a year.

Only voters can increase lawmakers’ pay. Lawmakers have sought a pay raise six times since the public approved their last pay raise from $15,000 to $24,000 in 1998, but voters have rejected the measures each time.

Thorpe said his approach of judging their work against those of supervisors in larger counties is “reasonable.”

“I don’t want to disparage our county supervisors, but I think state legislators have a greater responsibility, and wouldn’t it be nice if we had the same level of pay?” he asked.

Thorpe added that a pay hike would give more people the opportunity to run for office. Unless an individual is retired, self-employed or “self-sufficient financially,” it’s hard to make ends meet on $24,000 a year, he said.

Still, Thorpe knows his proposals will be a hard sell not only to his colleagues but also to voters.

“The voters are pretty fickle, so I don’t know if they would support it or not,” he said. “People in my district might disagree with me. It’s a political gamble, but it’s the right thing to do.”