Journalists’ Roundtable

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Three local journalists will discuss the week’s big stories.

TED SIMONS: Coming up next on Arizona Horizon's Journalists' Roundtable, the fight continues between the Superintendent of Public Instruction and the Board of Education. And we'll look at a recent poll that suggests dissatisfaction with Governor Ducey. The Journalists' Roundtable is next on "Arizona Horizon."

Video: "Arizona Horizon" is made possible by contributions from the Friends of Eight, members of your Arizona PBS station. Thank you.

TED SIMONS: Good evening and welcome to Arizona Horizon's Journalists' Roundtable. I'm Ted Simons. Joining us tonight: Mary Jo Pitzl of The Arizona Republic, Howard Fischer of Capitol Media Services, and Jeremy Duda of The Arizona Capitol Times.

TED SIMONS: The battle continues between the Board of Education and the Department of Education led by Superintendent of Public Instruction, Diane Douglas. We will get to that story in a second, but first, Mary Jo…kind of a developing story here regarding the department of weights and measures - the former director, the ex-director and why he is the ex-director. What's going on here?

MARY JO PITZL: Well, apparently Governor Ducey today told an audience that when he interviewed the then-weights and measures director Shawn Marquez about, you know, "Whatcha got going? What are you planning?", he mentioned that he was planning to do some sting operations on ride sharing services during the Super Bowl, noting that there will be a big uptick in that. And ride sharing services, back in January - still actually - are not compliant with the law, and weights and measures had been working on enforcement.

TED SIMONS: Enforcement in terms of what, insurance and…?

HOWARD FISCHER: There's really two big issues, background checks for drivers, you know, the same things that are required of taxi companies, and insurance. You know, right now you can drive in Arizona with $15,000 worth of liability. Well, guess how much that pays for in a hospital? You really need $250,000 if you're going to operate commercially. And since Uber and Lyft have been operating, under Governor Brewer, what Sean was doing was going out and ticketing them, saying "You are a taxi", and Doug Ducey comes in and Sean says, you know, "We're going to bring this to a head", may or may not say that depending on who you talk to, but according to the Governor, Shawn said "I want to bring this to a head; we're going to do it during Super Bowl week", and as he told his audience that person is now in the private sector.

TED SIMONS: Yeah, in the private sector for what? I mean, it sounds like he was doing his job or doing it a little too vigorously, a little too enthusiastically?

JEREMY DUDA: Well according to Ducey, Governor Ducey said that he told, that Marquez told his staff "We're going to do a bunch of stings during the Super Bowl. We're going to shut them down." Now, we obtained an email from Marquez to someone denying this, calling it a ‘straight-up lie', saying they had no plans to shut them down with stings during the Super Bowl, that the department of weights and measures doesn't even have the authority to shut them down. Now, the governor's office says Governor Ducey stands by his comments, but either way the change is made, and ironically they replaced him with Andy Tobin, who was a member of the House last year who voted against the bill that would have allowed Uber to operate.

HOWARD FISCHER: And this is the fascinating thing about this. We've talked about this, at this table, about the imperial governor saying "Don't collect that tax, do this", thinking of it as a CEO. The law was on the books; the law, as Mary Jo points out, until like next January, the law still is you have to have certain insurance if you're going to offer rides, and it doesn't matter whether you've got a pink mustache on the front of your car or not! And to somehow say "We're not going to enforce that law because we're not sending the proper message" seems to me to be, as I said, a little imperious.

MARY JO PITZL: This sounds like a message from Ducey to his audience, and this was at the RNC, is that correct? That this is part of that, you know, light-on-regulations stance that he wants his administration to strike. It's just that it sort of ignores the law. We now have a bill that he signed last month, you know, that will put some insurance and background requirements on ride sharing services, but that hasn't taken effect yet.

TED SIMONS: A couple of the quotes - "Not going to have overly aggressive regulators; Not looking to sting or surprise companies."

JEREMY DUDA: Sure, and this is kind of a motto of the Ducey administration in general. He's a businessman, he wants to be very entrepreneurial, we're going to promote these entrepreneurial businesses, microbreweries, and ride sharing companies and crowd-funding and that kind of thing, and they passed legislation on all of that. But this is the one - the ride sharing, Uber and Lyft - it's really the one instance in which they said "We're not going to enforce this law for now, we'll pass legislation on it later."

HOWARD FISCHER: And let's step beyond that. There is a valid role for sting operations. Attorneys-general of both parties have done this. You go into an auto shop, I can't tell you whether the third swizzle from the left in my mustang is defective, and so they'll go in and see if, in fact, they're ripping people off. That's how you find out if people are ripping off consumers.

TED SIMONS: Well that's why I brought it up, to say you're not going to sting or surprise a company. If you're not going to surprise the company, the company knows you're coming and you're not going to get anything.

MARY JO PITZL: Well you're probably just not going to dump those chemicals down the sewer that day.

TED SIMONS: Not that day, yeah.

MARY JO PITZL: Exactly. But it makes you wonder what the inspector general position that Governor Ducey wanted, if he were to put that kind of limitation on an inspector general, but it hasn't happened, the legislature didn't pass that bill, but it makes you wonder.

HOWARD FISCHER: Well, but let's go a step farther. It makes you wonder…we have perhaps two dozen state agencies. What direction has gone out to department of health services in terms of their inspections? What direction has gone out to the department of environmental quality? And, if in fact we're going to have this new friendlier relationship, we're not going to pester businesses because it would be inconvenient, is that really the message we want to send?

JEREMY DUDA: Yeah, and the governor's office likes to try to deflect questions about, you know, at least about the weights and measures/ride-sharing thing, saying "Oh, why is the press so hostile to Uber? Why don't you guys like ride-sharing?" But it's a matter of a governor or a chief executive saying "We're not going to enforce this law, we're not going to collect that tax", you know, the same thing that, for example, Obama deals with at the national level with stuff like the deferred action.

HOWARD FISCHER: And that's the thing - he is a plaintiff. Arizona is a plaintiff in the argument that the Obama administration has taken the law into its own hands and stretched congressional authority beyond its legal limits. So, you know, you can't say he doesn't understand the concept.

TED SIMONS: Well, and taking executive action is one thing, but just basically telling the new guy, you fired the one guy, you brought the new guy in and told the new guy "Don't enforce the law." That's different than an executive action, an executive order, is it not?

JEREMY DUDA: Yeah, there are plenty of areas where the Governor has authority through executive order. That just seems kind of a shaky one.

TED SIMONS: Are we going to hear more from Sean Marquez, or Sean Marquez's friends? Or what do you think?

JEREMY DUDA: I don't think we're going to hear much more from him.

TED SIMONS: You think so, huh? Okay.

HOWARD FISCHER: There's no reason. Look, he's out, he's got another job…I mean, other than, you know, protecting his own image, what's the point?

TED SIMONS: That's why I'm asking.

HOWARD FISCHER: He serves at the pleasure, or served at the pleasure, and that was it.

TED SIMONS: Alright, let's keep it moving then. We kind of referred to the imperial governorship here. Diane Douglas - is this more D.O.E., department of education, board of education? The board of education moves out of offices where they share with the department of education and move into the executive tower.

JEREMY DUDA: Well, the rent was the right price I guess? And they needed to get out of the department of education? No, the Board of Ed. has been planning this for a little while; they got some authorization at their last meeting for the board to move its employees into some new office space, and this is just the result of several months, pretty much since Diane Douglas took office as state superintendent, of clashes between her and the Board of Ed. She very famously tried to fire these two employees, she was forced to reinstate them, and there's been a lot of friction since then at board meetings. She's constantly fighting with the president of the board of education, and so the Board of Ed. employees said "We're just not going to deal with this anymore, we're going to move into new digs." This could only defuse the tension I think, because you know, people have been wondering, there was a bill that was going to give the Board of Ed. exclusive authority over these employees and kind of clear up this question that Douglas had, but that didn't go anywhere.

TED SIMONS: Why didn't that go anywhere? What happened to that agreement? Didn't they have a deal worked out?

JEREMY DUDA: It was kind of strange. Yeah, the Governor supported it, the Board of Ed. supported it, the superintendent supported it... seems like the legislature did not place a high priority on it. I'm not sure if the governor's office placed that high a priority on it.

HOWARD FISCHER: And look, the geography will help. The fact that there's now several blocks separating them. But the hostility is going to continue because remember, it is the board that sets policy, even though Diane, who was elected on a platform of "we're going to get rid of common core", says "That's our directive." The board, you know, who sets the agenda? How does this get set? And there is still, with the failure of that law, a statute that says that she is the administrative director of board employees. And so the fact that they're up the block may or may not settle things, and I think we could end up in court.

TED SIMONS: You think so?

HOWARD FISCHER: I think something will happen. Something will blow up. And somebody will take an action, either her or her chief of staff or the board employees will do it, and I think we're almost certain to be headed for court.

MARY JO PITZL: And frankly, that might be the best thing that could happen because it would end the uncertainty around this, and you get a legal opinion and maybe you need some legislation to trail behind that, but it might put this whole squabbling, you know, behind us.

JEREMY DUDA: For now, I think there's no question that the friction is going to continue between these two entities, but in terms of kind of defusing that, they can no longer do the nuclear option of trying to re-fire Christine Thompson and Sabrina Vazquez. They can no longer walk them out of the department of education because they're no longer in the department of education.

HOWARD FISCHER: Well, what they also can't do, which is one of the concerns of Greg Miller, who's the chairman of the board - because the board's computer system and the board's voicemail were set up through the department of education, the chief of staff and the Department of Ed. tapped into all of that. They've got their own website and now they're happy.

TED SIMONS: You've got both sides, though, saying it was a hostile work environment, the department of education people saying the board people were threatening, there were verbal altercations, all this kind of stuff. Will this block - check that. Different question: does Diane Douglas now kind of understand that what she does is more of an administering role as opposed to setting policy, and because the Governor puts so many people on the board, he kind of has more control over policy than she does?

MARY JO PITZL: No, I don't think so. And I mean, late this afternoon, the department of education issued a press release saying, you know, "We've looked at this budget change that's affecting charter schools, small charter schools with enrollments of less than 600, and the way we calculate it and the way we read it, the hit's a lot bigger, a lot steeper than what the legislature thought it was going to be and what the legislature's budget office scored it as." Charter schools are saying "Well, wait a minute; she's interpreting that way, way too liberally. We've got to take another look at this." But, so here's a case where you might have some real, you know, severe financial consequences, and I'm not saying that Douglas's office got it wrong, but that's their job. They read this law differently than the legislature does.

HOWARD FISCHER: This gets into an argument that, of all the years we've done Horizon, is what officers should be elected and what officers should be appointed? You know, whether it was debating the sheriff or whatever. But you have a school superintendent who, again, the role is administrative. You get all this money, you get $4 billion of state money, you get federal money, and you dole it out and you keep track of records and you make sure that school districts have done the testing and have complied with the law and certified the teachers. There is no policy-setting role in it, and yet to have somebody run, saying "I'm going to set a policy" is the problem.

TED SIMONS: Right. She ran on a policy issue that she really does not have control over. Do you think she's getting that message?

HOWARD FISCHER: [Laughter]

TED SIMONS: Okay. We'll stop with that one. Alright, we'll move on then. Thank you. Didn't mean to humor you. [Laughs] Who is Stewart Rhodes? What are the Oath Keepers and what in the world is he talking about?

JEREMY DUDA: Stewart Rhodes is a member of a group, The Oath Keepers; they're kind of a constitutionalist conservative group. They're meeting at a group called the Liberty Caucus where Senate President Andy Biggs was a featured speaker actually there to talk about his book against article five conventions. But Mr. Rhodes was railing against John McCain, a popular target for grassroots conservatives and tea party-ers, and said he's a traitor over MDAA and all kinds of other things, he would throw you in jail without a trial but we should put him on trial for treason, and he should be hanged by the neck until dead. I'm not sure how else you hang someone by the neck.

TED SIMONS: Well actually he didn't say it properly; he said "hung" by the neck, which is wrong. But still… "should be tried, convicted for treason, hanged by the neck until dead," and we had two state lawmakers in the audience and of course they protested, right?

MARY JO PITZL: No, no. And, first of all, this was all captured on video that was distributed widely courtesy of People for the American Way, a progressive or liberal-leaning group. And we asked president Biggs about this since he was invited there, as Jeremy said, to talk about his book. He was part of a three-person panel along with Rhodes and former sheriff Richard Mack, and Biggs said "What was I going to do? I went first, Mack went second, Rhodes came last. And what am I going to tell this guy? He's got to check his First Amendment rights?" He did not feel like he needed to speak up.

HOWARD FISCHER: See, this becomes the problem. I mean, it's one thing to say he didn't need to launch into a vigorous defense of John McCain and lord knows that Andy's got his own problems with John McCain and some of his philosophies, but there comes a point where somebody needs to be the adult in the room and say, "This rhetoric is inappropriate, it's not helping the party…if you want to work to unseat John McCain, great. There are candidates. Kelly Ward was there; she wants to run against John McCain. Work for her." But this rhetoric just makes the party look stupid, and somebody needs to be the adult. Now, I wasn't there. What was the appropriateness of standing up? If you're the Senate president… look, Andy Biggs is not shy about telling us what he wants, and he could have found an opportunity to say, "Excuse me, I have something to say."

TED SIMONS: And Kelly Ward was there as well, correct?

JEREMY DUDA: That she was. She was likely to be John McCain's opponent in the primary next year, and I don't know that Senator Biggs suffers any kind of blowback from this but it wouldn't surprise me at all to see John McCain's team and his allies try to use that against Senator Ward.

TED SIMONS: Yeah. Well, okay, any response from McCain at all? Have we heard anything yet?

MARY JO PITZL: He's not commenting.

HOWARD FISCHER: If you did a Google search and said "John McCain and treason", you would probably find a dozen folks who've called him guilty of treason.

JEREMY DUDA: Yeah, this is far from the first time John McCain has heard grassroots conservative types call for him to be tried for treason.

MARY JO PITZL: Yeah, you sort of don't need to comment. I think the statement is widely seen as incredibly offensive and out of place and, you know, what are you going to do? Pile on?

TED SIMONS: Okay. Let's keep it moving then. We certainly are piling on here. [Laughter]

TED SIMONS: Secretary of state and clean elections and they're starting -- it sounds like clean elections wants to be a little - according to the secretary of state's office - a little more than clean elections. Clean elections is saying "No, this is what we're doing. We're just adding on, changing an existing ordinance to existing law." What is going on?

MARY JO PITZL: So you have the clean elections commission and they are opening a docket to start a discussion about shall they regulate the speech of committees that are formed that become these independent expenditure committees that right now really don't have to disclose all their donors. They are looking at adding language that would allow disclosure from or require disclosure from some of these groups and Secretary Reagan objects. She not only objects, she vehemently objects and thinks this is the clean elections commission playing outside of its turf.

TED SIMONS: They don't have any authority to do that, she says.

HOWARD FISCHER: Well, except for the fact that when the voters created the clean elections commission in 1998, they did give them some authority over independent expenditures. Now, some of that may have been in the days when we had matching funds and they needed to control that, but they built this Clean Elections Act on top of the existing elections law, so you actually have this dual track of who gets to do regulation. We've seen cases where both have looked into things. They've investigated Tom Horne and they've investigated people going against Tom Horne. And so there is some authority. Now, the question becomes "Can they take what the legislature said," - the legislature has said you can require a disclosure of donors by certain committees that are clearly trying to influence elections. What Tom Collins, the executive director of the commission is saying is "We're just helping to define who is, in fact, trying to influence elections."

TED SIMONS: Are they helping to define or are they adding a new definition?

HOWARD FISCER: Well, they're adding a, I guess you could call it ‘a rebuttable presumption', which is, if you're just informed in the same election cycle and you're starting to spend money, the presumption is you're not some club organization that's been around for a while. You're being formed for a political purpose.

MARY JO PITZL: I think they're adding parameters. They're trying to further define it with more detail.

JEREMY DUDA: Well this is largely in response to a law that was passed during the last session where the legislature redefined the statutory definition of political committee in response to a federal judge's ruling. The new definition basically has a two-pronged test. It says you have to spend at least $500 on electioneering and your primary purpose has to be electioneering. Now Tom Collins says, "Well, the law doesn't define primary purpose so we're going to pass an administrative rule to say how we define this, and if you form and then immediately start spending on elections we're going to assume that." Now, that they might change, but either way, I don't think that's going to change Secretary Reagan's opinion. She called this a "brazen power grab."

MARY JO PITZL: There's good reason to have problems with this primary purpose, because if you remember the federal law that gets to 501(c)(4) corporations, it says you don't have to disclose if your primary purpose is for social welfare. And the IRS defined that as 51% of your activity.

JEREMY DUDA: This is a smaller part of a much larger fight that's been going on for a couple of years now. In 2013, the authority that Howie mentioned on whether or not the clean elections commission can regulate independent expenditures, candidates who aren't clean elections candidates, candidates who are privately-funded, etc. Tom Collins and the commission say "Well, we've always had this authority; it's just never really been used." And starting in late 2013, they started pretty vigorously enforcing that and have been since.

HOWARD FISCHER: And more important is that the courts have essentially sided with the commission. And so I talked to Eric Spencer, who is the state's election director, and I said, you know, it's a nice theory to say they don't have that authority, but the courts have sided with them, and he sort of sniffed at me and said "I don't need a court to tell me what the law says." This is a turf thing. And remember, the secretary of state's office is very political, and the Republicans, who have more often than not been the beneficiaries of some of this dark money, I don't think are as keen to regulate it as some of the other folks.

MARY JO PITZL: And there is reason. I mean, the clean elections commission, if I'm correct, has already gone after an independent expenditure group: The Legacy Foundation. And that's in court. So there's still an open question about the extent of the commission's authority. Perhaps we should let that play out in the courts before making changes one way or the other.

JEREMY DUDA: The legislature tried - they passed a law last year trying to curb that authority. Now, the commission says "This isn't binding because the authority that we have is protected by the Voter Protection Act." You need a three-fourths vote to change it, and it has to further the intent of the voters, which rescinding their authority obviously wouldn't do. The Secretary of State's Office maybe doesn't feel the same way. Eric Spencer said to me the other day that it's not off the table, and they might sue the commission to try to test that law.

TED SIMONS: Interesting. Alright, we'll keep an eye on that one. We also had the Attorney General - speaking of public finance and these sorts of things - withdraw an opinion after everyone and their brother apparently said "We don't like this opinion"?

HOWARD FISCHER: Well, it wasn't that we don't like it - it was the problem that it created. Sheila Polk has been very outspoken about her opposition to legalizing marijuana. In fact, she knows that there's an election coming, she's formed a separate political action committee, and she also wants the ability that, if she's going out and talking to groups as the Yavapai County Attorney on county time, maybe even using the county car to get there, to go out and say why she thinks marijuana legalization would be bad. The problem is state law says you can't use public resources to influence an election. So she asked Brnovich for an opinion, and he basically said "Look, you can go out and educate - you don't even have to do fair education - but as long as you don't say ‘vote for, vote against', you are free to do that. Well, there's a whole bunch of folks, including the Goldwater Institute, which has tried to curb this kind of activity by school boards, that called to his attention, "You know there's some laws that actually talk about this", and so late Wednesday night, we got a little note from Mark Brnovich saying "Never mind, we will re-craft this to balance the First Amendment rights of the office holders with the protection of taxpayer dollars."

TED SIMONS: And that's what he said, wasn't it? His original opinion was to preserve those First Amendment rights.

JEREMY DUDA: Yeah, but now they say "Well, this may have been misinterpreted, we're going to re-craft this to protect the First Amendment rights and balance that against whether or not taxpayer-funded entities can campaign."

TED SIMONS: Well, it seems like it opens the door for all sorts of reviews.

HOWARD FISCHER: Well, that was the thing. You get into interesting questions. Under the opinion, Sheila Polk could not say "I want you to vote against the measure", at least not using her official office. But if she tells people "I don't think marijuana legalization is good", is she, in fact, doing the same thing? And that's the problem that we have here, because you cannot censor somebody's First Amendment rights. Remember Doug Ducey when he was treasurer? He campaigned against the one cent sales tax. He probably crossed the line in terms of the use of his office but again, he is an elected official, he has certain rights. But as you point out, you open the door a little bit to say "well, you can have education campaigns" - I love that term, we're just educating the public.

TED SIMONS: Right. And we'll see how far they close that door when he comes out with some sort of --

MARY JO PITZL: Yeah, and this has ramifications all up and down the spectrum. I mean, from the school districts that will be running overrides or bond elections, then it raises the question of how do you inform people of what's on the ballot.

HOWARD FISCHER: And going a step beyond that, when you inform people what's on the ballot, if you say, as an education official, "If you don't pass this bond we will close three schools", have you educated people or are you trying to sway voters?

JEREMY DUDA: And this is a perpetual battle down at the legislature, especially relating to school districts on these bond and override elections and what they can say…other entities, too. We saw last year when there was a big bond measure for a new county hospital, the county hospital system was running a lot of ads talking about how great the county hospital system was. They weren't saying "vote for this" or "vote against this" or "gee, we need a new hospital" but "hey, the county hospital system is great, everyone support it."

TED SIMONS: Alright, before we go - we've got a minute or so left. There's a new poll by a democratic firm from North Carolina - we appreciate their interest in Arizona - saying that lots of folks aren't satisfied with Governor Ducey. What do we take from this? What's going on here?

JEREMY DUDA: Well, the poll showed - according to their findings - that about 27% of folks approved of his job, of the way he's been doing his job…44 disapproval, about 29% undecided. This early on, it's hard to, you know, give much credence to it. But it wouldn't surprise me, and I think for Governor Ducey there's kind of a messaging problem. You cut all this money and then you go say "We're focusing on classrooms first". Well, 1,000 schoolteachers are protesting in front of your office. If you say "Well, there's a budget deficit that we've got to make sacrifices, we have no choice", I think people kind of understand that, but if you say "We're focusing on classrooms first" while people are protesting and raising tuition, maybe not so much.

HOWARD FISCHER: I've got another problem, particularly with the poll. I mean, they point out that these numbers are the same numbers that he polled before the election, and yet he was elected. So I'm having a little disconnect here in terms of how accurate -- and these tend to be telephonic automated polls.

MARY JO PITZL: The numbers, you know, most likely reflect how people feel about cuts to education. I mean, that's been sort of the big headline coming out of the session frankly.

TED SIMONS: Yes, it seemed like it was very much tied to education.

JEREMY DUDA: The poll also gauged people's opinions on the Grand Canyon and cactus, so, you know, read into that what you will.

TED SIMONS: I hope they support cactus.

JEREMY DUDA: They support the Grand Canyon…cactus?

TED SIMONS: Cactus not so much?

JEREMY DUDA: A lot of undecideds.

TED SIMONS: Alright, thank you so much. We appreciate it. That is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great weekend.

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