I feel that I must respond to the statements made by the Senior Republican Policy Advisor and House Ethics Committee Chair, apparent spoke persons for the House, who whitewash and defend Rep. Ugenti’s actions as just another day at the legislature. The wagons are being circled.
Their view is that, Filing an amendment from the floor that turns out to be declared unconstitutional is not a violation; it happens all the time. Considering the very narrowly tailored definition of unethical acts – only those pertaining to money – it’s no wonder legislators are free to do as they please. Allow me to clarify this misleading view of life at the legislature.
In my 13 years following HOA legislation I’ve come to understand that many controversial bills can be subject to opposing interpretations. One side may see a bill as not violating the constitution and the other sees it as violating the constitution. Obviously, the sponsor acting in good faith sees the bill as constitutional and proceeds, hoping that it is not challenged at some point in time and found unconstitutional.
The court determines constitutionality based on several factors, which include an interpretation of the meaning of the words and sentences in the bill and the applicable law. In this case, Section 13 of the AZ Const., Part 2. The criterion used begins with the ordinary meaning of the words being definitive and if a word is ambiguous, to rational interpretations of the wording of the bill. It then looks at other criteria such as the intent of the legislature, if necessary to arrive at an interpretation that reconciles any seemingly contrary views.
To better understand the nature of the “disorderly act” in question let’s take a look at the relevant constitutional sections and House Rules. Was a House Rule broken is the key issue? Section 13 is a simple, direct statement:
“Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.”
House Rule 16, referring to Section 13, is a simple direct statement: “To comply with this requirement, an amendment may not expand the scope of the original bill to give it a new purpose.”
House Rule 1 is a simple direct statement:
“The House may punish its members for disorderly behavior and may, with the concurrence of two-thirds of the members elected to the House, expel any member (Arizona Constitution, Article IV, Part 2, Section 11). A violation of any of the House Rules shall be deemed disorderly behavior.”
It’s quite clear that House Rule 16 was violated by Ugenti and it is disorderly behavior. What is there to interpret in these applicable legal authorities quoted above? She is subject to discipline if so decided by the House leadership unless she gets, for political reasons, special dispensation.
Good faith unconstitutionlity
To put the Ugenti incident, “it happens all the time,” into perspective, let’s look at the recent appellate court opinion in Niehaus v Huppenthal (CV-CA 12-0242 Div. 1) alleging that the Arizona Empowerment Scholarship Accounts (ESA) statutes violated the Constitution, Article 9, Section 10.[i] The plaintiffs argued “that the ESA is invalid because it conditions the availability of a public benefit on a waiver of constitutional rights.” The waiver dealt with a requirement not to attend public schools (a public right) if receiving ESA aid, which the court denied and also denied the complaint. This case was a legitimate question of good faith differing interpretations of the constitution and laws, where one party said Yes and the other said No. The court gave its binding interpretation.
However, this is definitely not the case with Ugenti and SB 1454. What is there to interpret and where is the good faith, rational alternative interpretation of the constitution? Anyone can see the obvious black letter violation. Unlike the bills alluded to by the spoke persons, the inclusion of HOA amendments can only be seen as an intentional and knowledgeable act causing the bill to become unquestionably unconstitutional. It was also a violation of House Rule 16. The everyday meaning of Section 13 and the House Rules are quite clear and there is no room for any rational alternative interpretations. The Arizona Attorney General’s office, representing the Legislature, agreed that the SB 1454 violated Section 13 of the AZ Constitution and offered to settle. The court declared it so.
What is really at issue is why Ugenti violated the constitution and rules? Failing to conduct an inquiry amounts to a failure to do justice. Committing an intentional violation cannot be treated as acceptable conduct for an elected official, a legislator.
So we must ask: What was Ugenti’s motivation for her last woman standing act at the last session? We know she told the GOV committee that she had “a responsibility to the HOA stakeholders,” a group that does not include homeowners nor HOA directors. We know the stakeholders held meetings on SB1454 and HB 2371, its forerunner.
In her defense, Ugenti has blamed some mysterious staff person or House attorney for her action, claiming that she was advised that SB 1454 was not unconstitutional. (I am told that the House Ethics lawyer said he gave no such legal advice). She took this “advice” with its unreasonable interpretation, but allowing for plausible deniability, that somehow using the word “election” in one of the HOA amendments was OK. It allowed all other HOA amendments to also be germane to the subject of the title. This defensive argument is not rational by any means, is without merit, and as attorney Tim Hogan commented, “That’s a far stretch.”
Removal of ‘HOAS’
And let’s not forget the weak defensive argument that the question is really about the “short title” and not the “title” itself; that the title did list the HOA statutes being amended and no error was committed. But, the title did not contain the wording “Relating to HOAS,” as required by the bill drafting manual, that would have identified and alerted the public to the additional subject matter. With over 1,000 bills before the legislature, the first and primary vehicle to identify bills is the index to the bills that only shows the short title.
Furthermore, a disciplinary investigation should also look into the matter as to who changed the title of SB 1454 removing “HOAS,” which can be still found on the Arizona Capitol Times and ADRE (real estate department) websites. ARS 41-1224 makes the tampering of an introduced bill a class 4 Felony (1 – 3.5 years prison time). But, the wagons are being circled and a cover up is becoming apparent.
The settlement agreement bypassed any exposure or testimony relating to the motivation for her disorderly behavior.
Intent to deceive
If we examine the events surrounding these HOA amendments that had their origin in several bills that were combined into HB 2371, and then added to SB1454, it follows that there was an intent to get a twice failed bill made law. It was an intent to accomplish this by violating the Arizona Constitution in a desperate last ditch attempt in the closing hours of the legislative session.
For these reasons disciplinary action is warranted as set forth in the House Rules. The people seek transparency and have the right to know just what happened!
[i]Aid of church, private or sectarian school, or public service corporation
Section 10. No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.