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Hobbs Has Several Possible Work-Arounds

Arizona’s longest ever legislative session ended last week. Despite being in session for a record 7 months, the Senate completely failed in their responsibility to consider, vet, and confirm (or not) Governor Hobbs’ nominees to lead state agencies and other boards and commissions. That dereliction of duty creates very real governance and operational efficiency problems for agencies that have critical responsibilities.

It’s not just the nominees that are left in limbo…  It’s also the rank-and-file staff who suffer because they are unclear about who will be in charge of their agency, what priorities they have, and direction regarding key decision-making and regulatory actions. Recruitment and retention of staff is difficult as it is- and the failure of the Senate leadership to do their job makes matters worse.

Look no further than the scathing Auditor General reports about the nonperformance and misconduct regulating nursing homes during the Ducey Administration to see the very real impacts on everyday Arizonans poor agency leadership can have: Auditor General’s Office Produces Scathing Review of ADHS’ Nursing Home Complaint Investigations During the Director Christ Era

Governor Hobbs has nominated dozens of persons to lead agencies who require Senate confirmation, yet the Senate has only confirmed 6 (Confirmed are: Glover; Ben Henry, Department of Liquor Licenses and Control; Susan Nicolson, Department of Real Estate; Ryan Thornell, Department of Corrections; Thomas Torres, Department of Forestry and Fire Management; and Jennifer Toth, Department of Transportation).

Senate Committee Doesn’t ‘Vet’ Nominees. It Sabotages Them

A big part of the inaction in the Senate is tied to a new committee that was assembled this year called the Committee on Director Nominations (DINO) chaired by Sen. Jake Hoffman. Previously, committees organized by topic area considered nominees (for example, a Senate Health and Human Services Committee would vet the governor’s pick to lead AHCCCS, ADES, and ADHS).

According to reporting done by Stacy Barchenger at the Arizona Republic, Senate President Petersen has promised that: “We’re going to continue nominations, the committee will continue meeting soon. That’ll occur shortly.” He also said there was a possibility of a special session to confirm nominees and said some could be confirmed next year when the Legislature returns to work. AZ Senate confirms DPS director on final day, leaves other nominees in limbo

The DINO Committee chair (Hoffman) has publicly stated that “The Committee on Director Nominations has postponed all further nominations pending this meeting.” Referring to a demand that Hobbs meet with Hoffman et.al. about grievances he (they) have about executive orders Hobbs has made.

Let’s assume the Senate Republican leadership doesn’t change their mind and continue to fail to do their job (e.g. don’t have a special session). What can be done to help out state government and staff? Anything?

Fortunately, the statutes about senate confirmation requirements are sufficiently vague and provide loopholes that could give Team Hobbs some stability and governance options in the absence of Senate feasance. See: 38-211 – Nominations by governor; consent of senate; appointment

You’ve probably heard that agency directors can serve up to one year without being confirmed by the Senate. While that’s true – the reality is that the law ARS 38-211 is more permissive than that. While the Legislature is in session, the ‘one year clock’ doesn’t start until the Governor actually sends the nominee’s name to the Senate. If the Governor doesn’t send the nominee’s name in, then the clock never starts.

If the term of any state office that is appointive pursuant to this section expires, begins or becomes vacant during a regular legislative session, the governor shall during such session nominate a person who meets the requirements of law for such office and shall promptly transmit the nomination to the president of the senate. If the senate rejects the nomination the nominee shall not be appointed, and the governor shall promptly nominate another person who meets the requirements for such office. If the senate takes no formal action on the nomination during such legislative session… the governor shall after the close of such legislative session appoint the nominee to serve, and the nominee shall discharge the duties of office, subject to confirmation during the next legislative session.

For example, Governor Ducey named Don Herrington as the acting ADHS director in the Summer of 2021. Ducey never formally nominated Don nor sent his name to the Senate… meaning the ‘one year time clock’ never started for him & he ended up in the job for more than 18 months despite the time limit in 38-211E: ‘In no event shall a nominee serve longer than one year after nomination without senate consent.’

Why? Because he was never really the nominee according to the statute.

Note: Jennifer Cunico has been the acting ADHS director since January 2, 2023, but hasn’t been formally nominated. As such, her ‘one year’ timeclock has not yet begun.

The Governor has several work-around options I can think of, and there may be more:

Option 1: Replicate the ‘Herrington/Cunico’ Model

Hobbs could also just keep replicating the Herrington/Cunico model. Simply keep naming ‘Acting’ agency directors. Appear to be recruiting a permanent nominee without really doing it. Never formally nominate the person but tell them and their staff and stakeholders that the acting status is permanent. Not an ideal arrangement, but it supplies more stability than the status quo.

Option 2: Recess Appointments

Now that the legislative session is officially over, a different part of the confirmation statute applies:

If the term of any state office that is appointive pursuant to this section… becomes vacant during a time in which the legislature is not in regular session, the governor shall nominate a person who meets the requirements of law for such office and shall transmit the nomination to the president of the senate during the first week of the next regular session. The nominee shall assume and discharge the duties of the office until rejection of the nomination or inaction of the senate.

Now that session is over, when Hobbs nominates folks for posts who require confirmation, the person’s one year time clock won’t start until at least early January – and even then, not until Hobbs actually formally sends the person’s name to the Senate. This could be paired with the Herrington/Cunico model. Simply keep the recess appointment directors “acting’ on paper indefinitely.

Option 3: The Wizard of Oz

Even persons who Hobbs has formally nominated for agency director posts but for whom the Senate took no action (e.g., Carmen Heredia at AHCCCS, Karen Peters at ADEQ etc.) have easy options for staying in their director position indefinitely even without confirmation (their one-year time clock started in February/March 2023)

For example, prior to the one-year time clock running out on an agency nominee (in March 2024) Hobbs could move the nominated director to a Deputy position that doesn’t require confirmation. Hobbs could then name a new ‘Acting Director’ (possibly even the former deputy). The Governor’s Office could make it clear to agency staff and stakeholders that the Deputy is the ‘real’ director, providing governance certainty for stakeholders and staff. The (fake) Acting Director could stay on indefinitely as long as Hobbs doesn’t formally nominate the person to the job. The Governor could even rotate the directors on paper – with the acting director and deputy trading positions after a year. Again, staff and stakeholders could be told exactly who the real decision-maker is Not ideal: but again… better than the status quo that Hoffman has delivered.

Editorial Note: As I noted above, a root cause of the confirmation problem is that Senator Jake Hoffman is thwarting the Senate’s confirmation responsibilities…. but DINO committee nonfeasance may take care of itself before the next legislative session.

Mr. Hoffman is one of 11 ‘fake electors’ who submitted (forged) false slates of electors to the national archives, avowing that he was among Arizona’s “duly elected and qualified electors” (part of the effort to illegally overturn the 2020 election). On Jan. 5, 2021, Hoffman even sent a letter to Vice President Mike Pence asking him not to accept the state’s official electoral votes. The letter was sent on official state letterhead and had a return address of the state Capitol. See: Arizona’s 11 Republican fake electors face state, federal scrutiny

Arizona Attorney General Kris Mayes has launched an investigation into Arizona’s fake electors (including Hoffman), similar to a probe in Michigan which has resulted in state criminal felony indictments. It is entirely possible that serious state criminal charges could be filed against Hoffman prior to the next legislative session, increasing the likelihood that Republican Senate leadership could remove his committee assignments (including as DINO Chair) pending trial, or possibly even expelling him, solving the DINO committee’s nonfeasance.