'Dropping it pretty soon': Arizona GOP leader poised to sue Hobbs on agency confirmations

Ray Stern
Arizona Republic

Arizona Senate President Warren Petersen said he'll likely "soon" file a lawsuit challenging Gov. Katie Hobbs’ appointment of 13 state agency heads who aren’t subject to Senate confirmation.

"We've met a few times with the governor's office (on the issue) but we haven't made much headway," Petersen told The Arizona Republic.

The governor’s staff indicated this week they want to talk about it once more, he said, and he’ll make a decision depending on how that upcoming meeting goes.

“We have the lawsuit ready,” Petersen said. “Probably be dropping it pretty soon here.”

Christian Slater, Hobbs’ spokesman, said on Wednesday the governor's office has no comment at this time on the issue.

Hobbs told The Republic after publication of this story that the idea the negotiations had not been productive "does not match my assessment." She added she was "disappointed that he spoke publicly about ongoing negotiations. And we're still having those conversations.”

President of the Senate Warren Petersen speaks during an open session on March 20, 2023, at the Arizona Capitol in Phoenix.

Hobbs ditches Senate confirmation process

The lawsuit threat constitutes the latest power struggle in Arizona's divided government. It pits Republicans in the state Legislature, who hold a one-seat majority in the Senate and House, against the Democratic governor elected last year.

On Sept. 25, Hobbs pulled the names of 13 of her nominees for state agencies from consideration by the state Senate's Committee on Director Nominations, known as the DINO committee. She said the panel had been "used as a weapon, wielded for the personal whim of a few legislators."

She demanded the Senate return to the process used for decades to confirm nominees.

Before Petersen created the DINO committee this year, nominees would be confirmed by standing Senate committees that were germane to topics in which they'd have authority. For instance, the Department of Economic Security director nominee would be confirmed by the Senate Health and Human Services Committee.

Hobbs has singled out Sen. Jake Hoffman, a Queen Creek Republican who Petersen picked to lead the DINO committee, as a significant source of the problem that has led to delays in the nomination process.

"We’re trying to find a way around this situation, this political circus, quite honestly ... that Sen. Hoffman created with this committee, trying to leverage these agency directors for his political agenda," Hobbs said Friday, after this article was published. "It's a completely inappropriate misuse of his position in the Senate. And we're trying to find a way around that.”

Hoffman is the chair of the conservative Arizona Freedom Caucus who’s under investigation for his role in presenting alternate electors for Trump in the 2020 election. He has used the committee to criticize liberal policy positions held by the director nominees. He and the two other Republicans on the five-member committee also temporarily halted the nomination process in protest of an executive order Hobbs signed that banned county attorneys from considering any abortion-related cases.

By the time the Legislature’s session ended on July 31, the committee had considered just 10 of the nominees. Of those, the panel's Republican majority voted to reject three of the nominees and cleared seven. One of the seven, Angie Rodgers, nominee for director of the Department of Economic Security, has not yet been confirmed by a vote from the full Senate.

Hobbs creates workaround

Gov. Katie Hobbs attends a Bipartisan Elections Task Force meeting in Phoenix on October 24, 2023.

Hobbs and her lawyers came up with a novel plan to install her nominees as permanent heads of the 13 agencies. Records obtained by The Arizona Republic under state public records law show she told her director of operations, Ben Henderson, in a Sept. 25 letter that the confirmation process "has broken down" and that she would "pursue other lawful avenues" to make sure the agencies continued to function.

She relieved Henderson of his normal duties that day and nominated him as interim director of 12 of the agencies. She nominated lobbyist and former Democratic lawmaker Mark Cardenas as the interim director of the 13th agency, the Department of Veterans' Services. That's because state law requires a veteran to lead that agency, Slater told The Republic.

Henderson and Cardenas were instructed to convey their director powers to her previous nominees for the 13 agencies, who would then be called "executive deputy directors," and then resign their positions as interim directors. The process left her picks to lead each agency in their positions indefinitely, unbeholden to the confirmation process.

State Attorney General Kris Mayes stated in a Sept. 25 post on X, formerly known as Twitter, that Hobbs' was "well within her right" to create the new positions.

"Arizona law mandates that the Governor '[s]hall see that all offices are filled and duties performed,'" she wrote. "No law prohibits the Governor from withdrawing a person’s nomination for an agency director and re-appointing him or her as a deputy director of that agency."

Richie Taylor, Mayes' spokesman, confirmed to The Republic "the office has not issued any official legal opinions on this matter."

Petersen: Governor's 'scheme' won't work

State law says plainly: "In no event shall a nominee serve longer than one year after nomination without senate consent."

Yet that law has been violated in the past without consequence. Former Republican Gov. Doug Ducey appointed an interim director to the Department of Health Services in 2021 who then served more than a year.

The political equation has changed now that a Democrat is governor. But Petersen added Republicans at the time also knew that the interim DHS director had announced his retirement and would be vacating his post when Ducey left office at the end of last year.

Records show Petersen in October sent a letter to each of the 13 agency heads, threatening them with litigation unless the situation was remedied. He wrote that Hobbs' "bizarre interpretive theory" leaves them with a "precarious claim to authority" and requested documents related to the new appointment process. He also told them it's "doubtful" the Legislature "can lawfully accept or consider" the new state budget Hobbs will announce in January.

"More broadly, all rulemaking, adjudicatory or other official acts performed by an agency acting under the auspices of an improperly appointed 'Executive Deputy Director' are vulnerable to credible judicial challenges by interested parties," he wrote, adding that her "scheme... is textually and conceptually untenable."

Republican State Treasurer Kimberly Yee agrees with that position. She refused to allow designees for the Department of Insurance and Financial Institutions to sit in for a Sept. 27 state Board of Investments meeting, drawing condemnation from Hobbs.

Some of Hobbs' now-withdrawn nominees are coming up on one year of service. For instance, the nominees for the Department of Administration and Arizona Health Care Cost Containment System started work in January of this year, according to a list provided by the Senate. Yet state law doesn't make it clear when a nominee's true start date begins. The Committee on Director Nominations received official paperwork for both of the aforementioned nominees a month later, in February.

There's another wrinkle: While the law requires the governor to nominate "another person" if a nominee is rejected, Petersen said it may be up to a judge to determine if Hobbs could legally extend the year of service by withdrawing her nominees within a year, then re-nominating the same person months later.

Still, Petersen said the issue should hinge on the separation of powers doctrine, and state law gives the Senate the right to reject Hobbs' director choices.

"The constitution gives her veto on bills. The Constitution gives us a veto on her confirmations," he said. "It really is that simple."

Reach the reporter or 480-276-3237. Follow him on X@raystern.

Reporter Stacey Barchenger contributed to this article.