98. No Legislature in Arizona, has expelled a member without providing this and other basic elements of fair disciplinary processes.
99. Based on exhaustive research, it is alleged that there has not been one expulsion of an elected member by a state legislature in the history of the United States prior to Representative Shooter’s, without the involvement of a chamber’s special committee (known throughout the history of the states and the United States Congress) by a variety of names such as the “Select Committee”, “Conduct Committee”, “Ethics Committee”, “Standards & Official Conduct” and “Special Privilege & Election Committee) consisting of elected members, not members of hand-picked staff under the employ of the Speaker, as was the case in Representative Shooter’s expulsion process. One notable exception was during the Civil War when Congressional members did not return to Congress and instead joined the Confederate government.
Given their abandonment of their duties in Congress to serve a rival government, at war with the United States and their failure to personally appear in Congress, a committee hearing was not necessary. These extraordinary facts have no similarity to the circumstances that were used to justify Mr. Shooter’s removal from office.
100. Had the House Ethics Committee evaluated the allegations against Representative Shooter, applying the existing House rules and the existing House and Senate policies, the allegations against Representative Shooter would have been measured against entirely different policies and the outcome would have been entirely different.
101. Such was the outcome for Representative Rebecca Rios who was alleged to have engaged in sexual relations with a young House staff member before being discovered by another staff member in the basement of the House which was reported to the representatives of the Speaker’s office at the time and led to the staffer’s dismissal from employment in the House.
102. Although direct information provided in a briefing during the transition from the previous speaker to Mesnard giving Mesnard first-hand knowledge and also known first-hand by another member of House leadership, Kelly Townsend when Mesnard was speaker, the complaint was dismissed.
103. The Rios dismissal letter cites a lack of first-hand knowledge as well as a finding that the issue does not amount to a violation of law, rule or policy.
104. A.R.S. §38-519 establishes an Ethics Committee for each legislative body, comprised of five Members appointed (in the House) by the Speaker.
105. The House Ethics Committee is to investigate complaints and charges against members of the House, and “if necessary report the results of the investigation to [its house] with recommendations for further action.”
106. This Ethics Committee (and prior to its formation in the Arizona Legislature, the “Special Committee”) has in Arizona presided over every serious allegation of misconduct by a member, including after legislators (during AZScam in 1991) who were videotaped accepting and, in one case even counting the money for, bribes and whose bank accounts had already been confiscated in a separate, yet related civil racketeering lawsuit.
107. Even the AzScam legislators required basic due process which included the opportunity for a hearing which Mr. Shooter was intentionally deprived of.
108. The Arizona Capitol Times wrote, in a retrospective article printed 9/19/2011, “The ethics trial format [for Walker and Higuera] was fairly simple and was set to feature opening arguments from opposing sides, the presentation of witnesses and documents, cross-examinations and follow-up questions from the special prosecutor. Committee members were allowed to question witnesses.”
109. A second example involves Jesus “Chuy” Higuera (1991).
110. Mr. Higuera resigned in the midst of the House Ethics Committee investigation. The House Ethics Committee investigation was conducted simultaneously with the Senate Ethics Committee investigation into Senator Carolyn Walker.
111. A third example is Sue Laybe (1991).
112. Ms. Laybe resigned on the third day of her House Ethics Committee hearing into her role in “AZScam.”
113. A fourth example is Senator Scott Bundgaard (2012) which occurred while Ugenti-Rita, Mesnard and Shooter all served in the Legislature and thereby reinforced House and Senate historical precedent while all three legislators personally observed legislators’ rights to due process.
114. Mr. Bundgaard resigned, following witness testimony, a few hours after the start of the Ethics Committee hearing.
115. A fifth and the most recent example, again occurred while Ugenti-Rita, Mesnard and Shooter all served in the Legislature is Representative Daniel Patterson (2012).
116. The Ethics Committee’s Investigative Report made clear “the Chairman [of Ethics] shall review and distribute a copy of each complaint and supporting documentation to all Members of the Committee and to the Member who is the subject of the complaint. The Member who is the subject of the complaint shall have the opportunity to respond to the complaint in writing”. Emphasis added
117. After the House Ethics Committee recommended expulsion but before a floor vote by all legislators, Mr. Patterson resigned.
118. By serving in the legislature at the time during which allegations of misconduct were investigated and required an Ethics Hearing in a committee of elected peers, the historical norm was modeled for Mesnard, Ugenti-Rita and Shooter and reinforced expectations of due process.
119. This process is affirmed by the National Council of State Legislatures (NCSL) which extensively tracks state legislatures, in “Inside the Legislative Process,” a nationally-recognized publication and research tool which collects responses to comprehensive surveys of legislative clerks and secretaries of all 50 state legislatures, “Modern court cases establish that a legislator who is subject to disciplinary proceedings has the right to due process.”
120. For the first time in the Arizona Legislature’s history, rather than convene the Ethics (or Special) Committee to evaluate conduct complaints against members Representative Shooter and Representative Ugenti-Rita, the Speaker appointed a “special investigation team” consisting only of his staff and not of elected members/peers as was required by tradition as well as the parliamentary and procedural norms and expectations. At the direction of Mesnard, his staff member team promptly hired Sherman & Howard to conduct an independent investigation.
121. Representative Shooter never requested that the House hire outside counsel to conduct an investigation.
122. Representative Shooter did not request Sherman & Howard determine whether the allegations were true. At all times, Mr. Shooter expected the evidence to be thoroughly evaluated by his elected peers with his opportunity to address each allegation in the Ethics Committee.
123. The Speaker of the Arizona House of Representatives does not have the authority to:
● Unilaterally create a new sexual harassment policy for elected members without a vote of the elected members;
● Direct that a new, “zero-tolerance”, subjective policy enforced in direct contravention of House Rules and be enforced retroactively on any elected member for alleged offenses, many of which were alleged to have occurred seven years prior;
● Direct the use of two distinct and vastly inconsistent policy standards simultaneously to elected members to members under investigation at the same time by the same investigator;
● Cause the independent investigators’ report to omit material and exculpatory testimony and evidence relating to independently corroborated, serious allegations of sexual misconduct by Ugenti-Rita, Mr. Shooter’s accuser;
● Compel the members of the House to vote for its first expulsion in 70 years only four days after the release of the investigators’ report without providing Mr. Shooter the opportunity to respond in writing nor the opportunity to meaningfully defend himself in a hearing before his peers. Mr. Shooter was assured both orally and in writing during the investigation and on the day the report was made available to the public that he was entitled to five days to provide a written response to the investigative report. The investigative report contains multiple factual errors and amounts to an outline of allegations of facts, only the first step in a fair process. Four days after Mesnard’s release of the report, Mesnard concluded Mr. Shooter should be sentenced to expulsion and offered the motion to expel. This conduct is evidence of Mesnard’s unambiguous intention to preclude Mr. Shooter from the opportunity to raise these consequential issues until after he had been expelled which is the purpose of this complaint.
124. The Policy enforced on Representative Shooter, commonly referred to as the “zero tolerance policy” was created and effective November 2017 and as of the date of this filing still may not be enforced on any legislative member without a vote to adopt the policy.
125. For the zero tolerance, subjective, retroactive policy to be enforced on legislative members, a vote by the legislative members approving the policy was required. Yet no such vote on the policy ever took place.
126. The independent investigators were directed to impose Mesnard’s newly created, illegitimate policy, retroactively, to form conclusions about violations of this new, unauthorized policy.
127. As stated in page six of the report, “the investigation was conducted in light of the House’s very expansive zero tolerance Policy, as opposed to whether someone might be able to state and prove a claim for workplace harassment, discrimination or hostile work environment in a court or administrative proceeding” yet, again, the speaker lacked the authority to create and require a new policy be applied on a member without the prior approval of the legislative membership.