After the shenanigans at yesterday’s “Director’s Nominations” Committee it’s clear that Governor Hobbs nominees won’t be getting a fair shake from the Committee or the Senate. As such, it’s time for the Governor to look at other (legal) options for permanently placing talented folks into Director posts. There are several legal options that the Governor can consider.
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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 Here’s that statute [ARS 38-211].
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.
The Governor has Several Work-Arounds
Option 1: Replicate the ‘Herrington’ Model
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. When the Legislature is in session, that ‘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 doesn’t start.
For example, Governor Ducey named Don Herrington as the acting (Interim) 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 was Herrington allowed to be the Director for way more than 1 year? Because he was never really the nominee according to the statute.
Hobbs could keep replicating the Herrington 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 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 options for staying in the agency’s decision-making position indefinitely without confirmation.
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 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.
