Gov. Katie Hobbs violated state law in sidestepping the Senate director nomination confirmation process and opting to appoint executive deputy directors instead, a Maricopa County Superior Court judge ruled today.
After meetings of the Committee on Director Nominations, or DINO committee, in the last legislative session yielded six confirmations, three rejections and two nominees left in limbo out of Hobbs’ 22 nominees submitted to the Senate, the governor pulled her remaining nominees and reinstated them as “executive deputy directors” of their respective agencies. She claimed chair Sen. Jake Hoffman, R-Queen Creek, orchestrated a process “designed to slow walk nominees and create a political circus.”
Senate President Warren Petersen, on behalf of the State Senate, filed suit and alleged Hobbs’ workaround violated state law by neglecting her non-discretionary duties and cutting legislative oversight out of the process.
Maricopa County Superior Court judge Scott Blaney sided with the Senate and concluded Hobbs “willfully circumvented the statutory process and eliminated the Legislative branch from its oversight role.”
At the start of the session, the Senate convened the DINO committee with the express purpose to vet agency head nominations furnished by the governor. In past sessions, agency heads would go through existing committees.
Hobbs submitted 22 nominations, of which 11 got hearings. And by the end of the session, six were approved and confirmed by the Senate, three were rejected, one was approved in committee but did not receive a vote on the floor, and one was held in committee.
In September, Hobbs told Petersen she planned to pull her nominees and “pursue other lawful avenues” to appoint directors, claiming chair Hoffman had been “disrespectful” to nominees, delayed holding hearings unless Hobbs rescinded executive orders and held or rejected nominees based on partisan political beliefs.
Hobbs withdrew her nominations and appointed her Director of Operations Ben Henderson as interim lead of each agency with instruction to appoint since-withdrawn nominees as “Executive Deputy Directors” and delegate all duties of the director to the deputy directors.
Petersen and the Senate filed suit and alleged violations of state law holding the governor “shall” furnish nomination to the Senate “promptly” and, in certain cases, adhere to vacancy deadlines set in statute.
Andy Gaona and Bo Dul, attorneys for Hobbs, argued the nomination statute was “directory” not mandatory, noting no hard deadline for nominations beyond a requirement that a nominee cannot serve unconfirmed for more than a year.
They told the court each and every step taken by the governor was in line with state law and were warranted under a constitutional provision empowering and requiring the governor to fulfill her duties under state law.
But Blaney found Hobbs “improperly, unilaterally appointed de facto directors … (and) took a series of actions that, when viewed in isolation, arguably complied with certain applicable statutes, but took those actions for an improper purpose, culminating in an improper result – one that violates Arizona law.”
He noted state law “expressly requires the Governor to obtain ‘the advice and consent of the senate.” And though different in name, he pointed out the duties and roles of the “de facto directors” parallel that of a properly nominated director.
“They purport to exercise all the powers and authorities that the agencies’ properly appointed director would have. Their reporting chains are identical to that of a properly appointed director, reporting directly to the Governor or a chief of staff as the heads of their respective agencies. And they serve as the leaders of their respective agencies indefinitely, at the pleasure of the Governor, the same tenure as a properly appointed director,” Blaney wrote.
He concluded the indefinite tenure without Senate consent is a direct violation of a provision of state law barring a nominee to serve longer than one year without consent from the Senate and, though, each step may have been compliant with state statutes, “the argument improperly elevates form over substance.”
He declared Hobbs violated state law and found the statute requires Hobbs to “actually nominate directors” in line with procedures and deadlines written into statute.” But declaratory relief leaves Petersen and the Senate’s request for a more robust mandamus or injunctive order left to be decided down the line.
Blaney noted he would set an evidentiary hearing or oral argument in July or August to “give the opportunity to meet and confer in an attempt to reach a mutually agreeable resolution.”
Hobbs did not respond to a request for comment on whether she planned to appeal.
“We’re witnessing a very disturbing trend of our Governor breaking our laws,” Petersen said in a prepared statement. “Contrary to what she may believe, she is not above the law, and the Legislature is fulfilling its role in serving as the constitutional check and balance against her abuse of power.”
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