GOP Senate leader sues Hobbs over agency nominations

The head of the Arizona state Senate
is taking Gov. Katie Hobbs to court over her decision to appoint agency
leaders without the approval of lawmakers. 

On Tuesday, Senate President Warren
Petersen filed a special action complaint against Hobbs, accusing her of
violating state law by circumventing legislative hearings for her
appointees and asking the Maricopa County Superior Court to restore the
decades-long practice of requiring Senate approval for nominees. 

“While the Governor has discretion to
select a nominee of her choosing, her statutory duty to promptly make a
nomination and transmit such nomination to the President of the Senate
is mandatory and non-discretionary,” Petersen wrote in the brief.

The fight over director nominations

The process for approving agency heads has been a point of particular contention throughout Hobbs’ first year as governor. Arizona law
directs the chief executive to nominate candidates to lead state
agencies. Those nominees make up the governor’s cabinet, and are
handpicked with an eye toward carrying out their vision for the state.
Before they can be considered legal state agency directors, however,
nominees must be considered and approved by the state Senate. 

In past years, senate confirmations
occurred with little fanfare, following brief interviews with relevant
legislative committees; the nominee for the Arizona Department of Health
Services would meet with the Senate Committee on Health and Human
Services, for example. But this year, with the Republican-majority
legislature at loggerheads with Hobbs, a Democrat, the state Senate
formed a specific committee to vet and interview nominees. 

The Committee on Director
Nominations, led by Sen. Jake Hoffman, a Queen Creek Republican who also
heads the newly minted far-right Arizona Freedom Caucus, turned a once
simple process into one that mirrored the hours-long interrogations held
at the federal level. Out of 13 nominations put forward by Hobbs, 10
were interviewed and only seven were ultimately recommended for
confirmation by the full Senate. More than one was dismissed on
ideological grounds. 

Dr. Theresa Cullen, chosen by Hobbs to lead the state health department, was rejected after an acrimonious hearing
that included accusations that her decision as the Pima County public
health director to shutter schools early on in the pandemic resulted in
an increase in depression and suicide among students. And the nomination
of Elizabeth Alvarado-Thorson to the directorship of the Arizona
Department of Administration, which oversees state-funded health
insurance, was frozen after Republicans grilled her on her personal beliefs about abortion, despite the fact that her duty would be to strictly implement state law and policy and not create it. 

With numerous candidates left to interview and frustrated with the process, Hobbs withdrew her list of pending nominations in September and reassigned them as executive deputy directors,
effectively sidestepping the need for senate confirmations. To
accomplish that, Hobbs elevated her Director of Operations, Ben
Henderson, to the position of interim director for 13 agencies, one
after the other. During his tenure, which at times was no more than an
hour long, Henderson quickly appointed each of Hobbs’ picks as executive
deputy directors of their respective agencies and then resigned. 

State law allows the governor to
assign interim directors in lieu of acting directors when the
legislature is out of session or fails to act on nominations. Vacancies,
meanwhile, must be filled and submitted for senate approval by the
governor, either promptly if the legislature is in session or within the
first week of the following session. No one can serve in the director’s
position for longer than a year without confirmation. 

Republicans:  Hobbs’ ‘temper tantrum’ is illegal

Hobbs’ decision to circumvent lawmaker vetting constituted an illegal action, according to Petersen. 

“In refusing to nominate agency
directors and bypassing the Senate’s advice and consent processes, the
Governor has violated a binding statutory directive, acted in excess of
her lawful authority, and failed to perform a nondiscretionary duty,”
Petersen’s attorneys wrote. 

While the executive deputy directors
aren’t technically agency heads — instead filling in for a vacant
director position — it isn’t the first time in Arizona history that
state agencies have been led by directors in all but name. In 1991,
Republican Gov. Fife Symington employed a similar tactic
when the Democrat-controlled Senate refused to confirm his pick for the
Department of Administration, installing his choice as the deputy
director and leaving the top slot empty. 

And unless the court agrees with
Petersen or the state Senate makes changes, it appears the top position
for at least 13 state agencies will remain vacant, and the leadership
for those agencies will be concentrated in the second-in-command
positions of the executive deputy directors. Despite two months of
discussions, Petersen said in his lawsuit, Hobbs has remained firm in
her commitment not to put forth any more nominees for the senate to
interview unless the confirmation process is altered. Petersen urged the
court to find that Hobbs’ appointments are in violation of state law,
declare that conditioning future nominations on changes to the senate
confirmation process is illegal, and order that Hobbs return to the
traditional nomination process. He also requested that the governor be
required to pay his attorney fees. 

In a written statement, Hoffman
criticized Hobbs’ move to bypass senate confirmation hearings for
“forcing agencies to operate illegally.” The Queen Creek Republican
denounced her unwillingness to work with Republicans and said it would
only serve to hurt everyday Arizonans.

“She’s made it abundantly clear to
voters that Democrats care more about playing petulant political games
and throwing temper tantrums than actually governing,” he said, in an
emailed statement. “Republicans, on the other hand, are committed to
creating a government that works for every Arizonan.”

Christian Slater, a spokesman for
Hobbs, shot back that the governor was left with no other option after
Republicans continually stonewalled her nominees. 

“After Jake Hoffman and the Senate’s
refusal to meaningfully do their job, Governor Hobbs took lawful action
to fulfill her duties and ensure Arizonans can continue to rely on
critical services from state agencies,” he said. “She stands ready to
work with anybody in the Senate who is serious about putting the
political games aside and delivering for everyday Arizonans, and as
she’s said from day one, she remains open to a fair and timely process
for the confirmation of nominees.”