Phoenix mayor Phil Gordon says he isn’t happy with the way the water crisis was handled and raises some serious questions. The U.S. Justice Department has approved the voting provisions of Prop 200 while lawyers were back in court Thursday arguing about the scope of the voter approved law. And the Clean Elections Commission looking at removing Representative David Burnell Smith for violating finance laws.
>> Michael Grant:
It's Friday, January 28, 2005. In the headlines, Phoenix mayor Phil Gordon says he isn't happy with the way the water crisis was handled and raises some serious questions. The U.S. Justice Department has approved the voting provisions of Prop 200 while lawyers were back in court Thursday arguing about the scope of the voter approved law. And the Clean Elections Commission looking at removing Representative David Burnell Smith for violating finance laws.
>> "Horizon" is made possible by the friends of Channel 8, members who provide financial support to this Arizona PBS station. Thank you.
>> Michael Grant:
Good evening, I'm Michael Grant. This is the journalist's roundtable. Joining me to talk about these and other stories are Doug MacEachern of the Arizona Republic, Howie Fischer of Capitol Media Services and Chip Scutari of the Arizona republic. For a couple of days this week residents of Phoenix had to deal with a water crisis that forced them to boil. They also had to boil water or use bottled water. While the crisis is over, questions are just beginning. Doug, what caused the problem?
>> Doug MacEachern:
I want to note there was a headline in the Mexican newspaper that said if you're going to Phoenix, don't drink the water. Everybody was having a lot of fun with this.
>> Michael Grant:
Hermosillo?
>> Doug MacEachern:
Yes. It was one of those perfect storm situations, because of the drought there was lots of sediment in the water that was rushing into the system and it came into the Phoenix treatment plant at a time when two of them were shut down for maintenance and one of them broke down because of the turbidity, the word of the week, turbidity of the water was getting so thick that one of them couldn't handle it. Then they kept failing and then they realized that they had far too much sediment in the water to keep it drinkable. That was the story early on. That's changed now. As of tonight, the city is now under the understanding that it didn't have to issue that don't drink announcement at all. And so you can imagine, since -- given what so many people went through in the course of the last few days, some hospitals, horror stories. Starbucks -- good grief.
>>Michael Grant:
And other restaurants.
>> Doug MacEachern:
Given that report, they are seriously looking into what the chain of events were that led to this and there is a concern in the city that perhaps this didn't have to happen.
>>Michael Grant:
So, let me cycle back to that point, because I think that's a new top to the story, as we said. Is it now understood that because it was a turbidity problem, dirt in the water, that that's not the kind of thing that you have to say don't drink the water over? It needs to be more of an active bacteria problem or whatever?
>> Doug MacEachern:
It is, but, as I understand it now and things are still evolving, it doesn't look as if reached the threshold that required that level of protection.
>> Howard Fischer:
That's the interesting issue. It wasn't that the water was cloudy, we've had that problem before, somehow among the materials swept down the Verde, included some animal waste. What I don't understand, even assume you had a problem, everybody has told me we always add enough chlorine to kill everything sometimes occasionally a small child. Even if we had brown water, it should not have been unsafe water. It might have been disgusting to drink. In the treatment plants themselves, they have to, the filters have to churn. They have to turn that water even while they're dumping chlorine into it. It has to mix.
>> Michael Grant:
What I wasn't able to figure out, obviously the storm occurred about three weeks. I think it's very logical to assume that you're getting a lot of dirt and that kind of stuff mixed in with it, including but not limited to maybe a problem exacerbated by the forest fires and those kind of things. Why don't you get some advance warning of that?
>> Doug MacEachern:
That's what the controversy is all about right now. That's what's raising voices in the city of Phoenix. They are wondering why they didn't get this information ahead of time. Given the fact that they only had two treatment plants operating when all this started to come to a head, they didn't realize that we're going to have to shut one of these two remaining ones we've got going down because it's filling with floods, why didn't that tell them, hey, this might happen, the same source of water is coming through the other one, we should know that it's going to happen here, too. That didn't happen in a really expedient sort of way. I should add here, too, that at the same time this is one of those perfect storm, happen once in a lifetime situations, hopefully, and the city of Phoenix water people are not amateurs. They have a lot of experience, the head of the department has an unpronounceable name, something like MacEachern. 16 years on the job, one of the great authorities on clean water in the state.
>> Michael Grant:
Do you think he is being sort of unfairly targeted?
>> Doug MacEachern:
When things get political, you start to worry. We have some precedent with statewide pipeline problems with the gasoline and we saw what the political ramifications of that were. We hope that, yes, we'll find the answers but let's not get too excited.
>> Howard Fischer:
What's going to be interesting is see whose head is offered up at the end of this. It's like the issue in Tempe, with somebody getting fired over the bikini incident. Whose head is going to be on the platter?
>> Michael Grant:
You like the City of Phoenix remedial plan, Chip? Put it on a barge, float it to Los Angeles and a huge truck is going to come over to Phoenix with it?
>> Chip Scutari:
Do you think Mayor Gordon is overreacting?
>> Doug MacEachern:
It might be that he is overreacting to his coffee supply which was turned off for a few days, now it's back on. I get that sense. But you don't want to have things that are pointed too directly too quickly. I think they should look into what the problems were. When things at this stage they seem to get a little more political than they need to be.
>> Michael Grant:
It was an infrastructure week for Phoenix, $600 million for the light rail or as Howie refers to it, the trolley.
>> Doug MacEachern:
The federal people were in town to celebrate signing the check. Federal people love signing checks, as we know. The city of Phoenix is on track. They like the look of the light rail system and they are ready to help finance it.
>> Michael Grant:
I am curious. It turns out that we can't have the Fiesta Bowl parade down Central. Did you find it suspicious that came out in January as opposed to October before people voted on the issue?
>> Doug MacEachern:
You know, Mike, there are parallels here. I do recall, I don't want to change the subject, this is related, when we were supporting the construction of the downtown -- the Phoenix civic plaza downtown, we were assured that yes, that people would be lining up to -
>> Michael Grant:
If you build it, hotels will come.
>> Doug MacEachern:
What do you know, suddenly the city has to pay for one itself. Now we were assured that we can have the parade down Central and the light rail system next to it. Well, that story suddenly changed. It looks like the head of the Fiesta committee is going to put his neck on the chopping block and say I'm sorry, we looked at it a little late. It's a band issue. The bands can't march.
>> Michael Grant:
In some fairness, they could get the bands on Central Avenue, the bands just would not be able to turn left.
>> Doug MacEachern:
Wouldn't you love to see the pile-up.
>> Michael Grant:
once again, new developments involving Proposition 200. The U.S. justice approved the voting provisions of the law. Howie, why did Justice sign off on Prop 200? Nice tie.
>> Howard Fischer:
Thank you. I figured the Looney Tunes legislature, it seemed appropriate. What they said was they didn't find was anything in the voting section of Prop 200 that would adversely affect the voting rights of minorities. Arizona has to have changes in voting law pre-cleared by the Department of Justice. Back in the '60s we had a literacy requirement for people getting to vote. Guess how that was applied if you were a person of color. They sent it to the Department of Justice. The question was, if you require people to show proof of citizenship to register to vote and require them to show ID are minorities less likely to have the kind of ID that they need? The Justice Department found no particular problems with that. They said we think it complies with the law. Here's the interesting but on it. They said they were issuing a ruling because we have elections in March. Early voting starts next week. They say we remain open to new arguments. MALDEF filed paperwork, contending that if you change voter registration drives, you can't have them anymore, minorities are likely to be affected.
>> Michael Grant:
Even though they have pre-cleared, Justice can still back up and say, on further review.
>> Howard Fischer:
Yes. They have up to 60 days from the time it was submitted so there actually is, you know, plus another month for them.
>> Doug MacEachern:
It's a real shot in the dark. People are saying this, too, it's rare that these sorts of decisions are overturned.
>> Howard Fischer:
That's interesting because the house Democrats who were very unhappy, MALDEF which is unhappy says we will take them to court. The MALDEF attorney admits, if DOJ has cleared it, judges are loathe to change it. Now, MALDEF might have to convince maybe there were politics displayed here but I think it's going to be hard to do it.
>> Chip Scutari:
Were you surprised at the swiftness?
>> Howard Fischer:
I was surprised. Remembering, there is the early voting and the law should be taking effect. I understand why they did it as fast as they did.
>> Chip Scutari:
Were Democrats worried that this is going to help out Republicans?
>> Howard Fischer:
Most of the elections coming up tend to be municipal and many are non-partisan. Some of the provisions of Prop 200 are what they call self-executing. You show ID, you show ID. The voter registration provisions are not. Now the secretary of state's office has to come up with all new forms for voter registration. Guess what, those forms have to be pre-cleared by the Department of Justice which has another 60 days to pre-clear them. We're not sure how much will be in effect for the next election.
>> Michael Grant:
Lawyers in court on Thursday arguing how broadly Proposition 200 should be interpreted and the term public benefits.
>> Howard Fischer:
You may remember Terry Goddard issued a formal legal opinion. Prop 200 said people not in this country illegally are not entitled to public benefits. He read through it and concluded most of the big programs don't fit. ACCESS, food stamps don't fit within that, most of the welfare. He said maybe a few housing programs. Supporters went to court not to say the state broke the law but to say Terry Goddard's opinion is wrong and have the judge order him to change his mind. The judge heard some arguments on Thursday and said that's very interesting but she is not sure that she has the authority to order him to change his mind.
>> Michael Grant:
Howie, do they consider that to be too difficult to find someone that only took ID on one of these limited programs to bring a more focused suit? That would seem to be the more logical way.
>> Howard Fischer:
I don't understand why Randy Pullen went ahead and went this way. The simple thing is to send someone in to get benefits, have the state not check their ID and then you have a live case. Then have you an issue. Right now all they've got is questions of academics.
>> Doug MacEachern:
One other question regarding the question of ID, Terry Goddard has acknowledged that a driver's license issued after 1996 would qualify as ID. That's a dicey issue.
>> Howard Fischer:
Theoretically, before '96 there was no requirement for proof of citizenship or legal residency. They changed the law in '96. A driver's license issued post '96 is not proof of citizenship it is proof you are here legally. Even proponents of Prop 200 who said a driver's license post '96 is proof of citizenship had it wrong. Russell Pearce said he will try to change that, and have the license change so it says citizen vs. non-citizen, but at the moment the fact is having a driver's license doesn't prove anything as far as your citizenship.
>> Michael Grant:
Down in Tucson, another one in federal court, judge saying English second language program not adequately funded and telling the legislature to do something about it pronto.
>> Chip Scutari:
This has been a problem. Prominent public interest attorneys have been at this for years. The difficult thing, unlike like buying a textbook, this has no definitive cost per student. They are called English language learners, mostly Hispanic families, English is not spoken at home. Tim Hogan has been after the legislature to deal with this program. That's not enough for these kids to catch up. There's other ramifications. If the ELL students do poorly on standardized tests, it can ruin a district's label as a failing school. We are waiting for a cost study from the national Council of state legislatures which hopefully will put some kind of definitive cost of what they should fund these kids at. This has been going on since 2001. 2002, the legislature passed a bill that Governor Hull signed bumping up the cost, doubling it but at that time it was supposed to be a temporary fix. Now we're awaiting this cost study in mid February.
>> Howard Fischer:
What's interesting is that the house speaker on hearing of this ruling said they didn't have to issue the ruling to give us a deadline, we were going to do it. Let me tell you, this lawsuit was filed more than a dozen years ago. The original judge has retired. We have a new judge and he has about had it up to here. He said every year we give them a little more time which means another year of children, about 200,000 English language learners not getting the education they need and he has about had it.
>> Michael Grant:
Chip, the bottom line, the issue on hold until mid February but the legislature given until April 30 to act.
>> Chip Scutari: That's correct. Another tough part of the equation is some schools will spend 300 per student, others spend up to 2,000. There's really no consistent cost.
>> Doug MacEachern:
Other states they spend between $750 per student upwards of 2,000. There is quite a range. The interesting thing, I think, this is no surprise is that the legislature has to be dragged kicking and screaming to spend anything on education.
>> Howard Fischer:
What's going to get their attention is Tim Hogan says if they don't meet it, the contempt citation will take away 400,000 from their highway fund. When you start screwing there pavement that will get their attention.
>> Michael Grant:
State Representative David Burnell Smith of Scottsdale facing possible removal from office for violating the clean elections law, chip what did he do to get himself in this situation?
>> Chip Scutari:
He over spent by about $7500. Some people may say it's a bookkeeping error, in a legislative primary, that could be two or three mail pieces that could sway a lot of primary voters. The Clean Elections Law says if a candidate over spend by over 10% of public funds, you shall be removed from office. If the Clean Elections Commission boots him out, we expect Mr. Smith to sue.
>> Michael Grant:
He is saying, the constitution states minimum qualifications a and how you get there and a statute can't trump that.
>> Chip Scutari:
When you talk to a guy like Chuck Blanchard, a lawyer with Brown & Bain, he has dealt with a lot of Clean Elections cases, he will say most bills that are passed by the legislature and most initiatives passed by voters are assumed to be constitutional until someone challenges them in a court of law.
>> Howard Fischer:
The requirements for somebody to be on the Corporation Commission are set in the constitution. There are statutes that say you can't hold a securities license when running for office. Tony West, when he ran he had it. The issue here becomes he said, Well, but the election was held. I won. That's the constitution. The state Supreme Court said, huh-uh, you broke the law, constitutional requirements notwithstanding.
>> Michael Grant:
Doug, as you point out, that case was very closely decided.
>> Doug MacEachern:
It was decided on 3-2 margin and very hotly contended by the opponents of that, said explicitly they thought that shouldn't have happened, that was too big a penalty for that office holder.
>> Howard Fischer:
But part of what I think the dissent said was that the way the law read about not holding a securities license could perhaps be read to when you take office, as opposed to when running. In this case the violation is much clearer.
>> Doug MacEachern:
There are four or five precedents that weren't strictly attended to in the constitution. So it's a judgment call. It interests me that when they wrote the clean elections law in the first place, that they would make this penalty kicking out of office and not consider that somebody is going to go to court to challenge this.
>> Chip Scutari:
Two other points. You have to sign an oath basically saying you're going to adhere to the law, which is a big deal. The other thing that happened yesterday after the Clean Elections Commission met, a few Republicans for the first time said hey, this guy broke the law, let the cards fall where they may. It's important to know this is one piece of what could be a very big puzzle. The AG's office may be looking into other candidates, so this could be the tip of iceberg.
>> Michael Grant:
Chip, political pressure seems to be building and I think there's a timing issue. Because the Clean Elections Commission is not scheduled to meet until early March and they were saying you need to be doing it a little quicker than that. The pressure seems to be for the commission to enforce the law and if Smith wants to go to court to try to get another ruling, then go to court.
>> Chip Scutari:
Yeah. If you're a backer of Clean Elections like the Clean Elections Institute and believe in the publicly funded system, if they're not going to boot Mr. Smith out of office and follow the law, the law should be scrapped. I think that's what people are worried about.
>> Doug MacEachern:
That's what sort of drove the issue in the first place. Their chief lawyer was I think negotiating for some kind of financial penalty rather than taking it to the extreme at first. That set off fireworks. I think that's what led to this being an issue.
>> Howard Fischer:
The commission can sort of side step whether they are going to remove him and come up with a finding he broke the law. We know there are people out there, including privately funded Clean Elections, basically say somebody and let the courts decide.
>> Michael Grant:
Kevin Ross got sentenced today, the former Maricopa County assessor.
>> Howard Fischer:
The voters decided he should have been out, but he would have been out on this conviction. He was found guilty of -- funny as it sounds to say, giving out public records. The records he gave out were not simply the assessor's records, but information that people say we are below a certain income, entitled to certain property tax treatment. He took that information, gave it to a friend, got a finder's fee and that friend used it to try to sell reverse mortgages.
>> Michael Grant:
The sentence?
>> Howard Fischer:
Three years unsupervised probation, a fine and he lost his real estate license. The question is, to a certain extent you can say he lost his office because of the facts voters were not going to return him based on the indictment, that is fair penalty for that.
>> Michael Grant:
All right, we're out of time. Thanks very much. If you would like to see a transcript of tonight's program, visit the website, at www.az.pbs.org. When you get there, click on the word "Horizon", that's going to lead to you transcripts, links and information on upcoming shows.
>> Voters went to the polls last November to choose their state legislators but one apparently overspent his spending limit and could be removed from office. And now that some drugs are under fire, what alternatives are available to chronic pain sufferers? Monday night on Channel 8's "Horizon".
>> Michael Grant: Tuesday, we'll talk to the chief justice and vice chief justice of the Arizona Supreme Court issues they will be facing this year. Thanks for joining us on this Friday edition. I'm Michael Grant. Have a great weekend. Good night.
Doug MacEachern:Arizona Republic;
