Arizona Legislators Aren’t Conflicted About Ignoring Ethical Conflicts

Arizona House of Representatives

Following the letter – and not the spirit of the law – seems to be the approach many Arizona legislators take when determining their obligations to taxpayers.

In other words, when it comes to the Arizona legislature, legally speaking, there is no such thing as conflict of interest when casting votes. However, ethically speaking, we have dozens of legislators including Heather Carter, Randall Friese, Kirsten Engel, and Michelle Udall, who routinely vote on legislation that would enrich them or their employers, and that unquestionably constitutes a conflict of interest.

In the cases of Carter, Friese, and Engel, all three collect substantial salaries from our universities and all three regularly vote increasing funding and highly questionable funding schemes:

Sen. Heather Carter Rep. LD15 State University $ 100,000
Rep. Kirsten Engel Dem. LD10 State University $ 169,985
Rep. Randall Friese Dem. LD9 State University $ 266,640

(*) These annual salary figures can be viewed  here.

When the AZ Daily Independent sent to all three legislators an inquiry about conflict of interest, both Carter and Friese ignored it and refused to reply. Engel did reply, and here is her reply:

“Thank you for your email.

I do not have a conflict of interest in voting on university funding per Arizona State law, A.R.S. 38-502-503, just like Rep. Udall does not have a conflict of interest when she is serving as education chair and voting on funding for public schools.

I have always been up front about my university employment.  I declare it on my financial disclosure statement and campaign literature and it is frequently mentioned during floor debate.”

There is a huge problem with that reply. She is in compliance with only half of the provisions of A.R.S. 38-503, namely the full disclosure provision. She is in violation of the other half, which requires abstention from voting. Here are the pertinent provisions of A. R. S. 38-503 (Emphasis added):

38-503. Conflict of interest; exemptions; employment prohibition

  1. Any public officer or employee of a public agency who has, or whose relative has, a substantial interest in any contract, sale, purchase or service to such public agency shall make known that interest in the official records of such public agency AND SHALL REFRAIN FROM VOTING UPON OR OTHERWISE PARTICIPATING in any manner as an officer or employee in such contract, sale or purchase.

How can Engel and others get away with such a blatant violation of A.R.S. 38-503?

The answer appears to be found in another statute, A.R.S. 38-508, which reads partially:

38-508. Authority of public officers and employees to act

  1. If the provisions of section 38-503 prevent an appointed public officer or a public employee from acting as required by law in his official capacity, such public officer or employee shall notify his superior authority of the conflicting interest. The superior authority may empower another to act or such authority may act in the capacity of the public officer or employee on the conflicting matter.

It appears that legislators are off the 38-503 hook if they notify their conflict of interest to their superior authority. That superior authority is not compelled to take any action, because the statute reads MAY, not shall or must, only MAY. This seems to mean that if the superior authority does nothing, the legislator is free to violate 38-503 with impunity. That seems to be what Rep. Engel had in mind when she replied to the inquiry from the AZ Daily Independent. Legal, but not ethical.

This raises the question of what Arizona citizens can and should do if they are not in agreement with this blatantly unethical and irresponsible behavior by so many legislators. There are two possible courses of action to pursue.

  1. Legislative action. Perhaps enough citizens are sufficiently disturbed by this to contact their legislators and demand corrective action. This could include the formation of a committee to visit legislators and lobby for change.
  2. Initiative action. Not everyone is enamored with initiative method of legislating, but it is the last resort when legislators refuse to act. Conflict of interest is such an egregious offense that no lawful means should be off the table.

Hopefully, enough citizens will awaken to the fact that action is necessary, and will act accordingly.

Related Article: Arizona Law Requires Public Officers, Employees To Avoid Conflicts Of Interest