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This week at the Arizona Capitol: Will Hobbs be allowed to appoint state agency leaders?

A judge is scheduled to hear arguments Monday over whether Arizona Gov. Katie Hobbs was allowed to essentially go around the state Senate to appoint leaders of state agencies. And, speaking of the state Senate, the chamber is expected to try again to approve a proposed ballot measure dealing with border security on Wednesday.

With The Show, as he is every Monday during the legislative session to talk about to expect this week at the state Capitol, is Howie Fischer of Capitol Media Services.

Full conversation

MARK BRODIE: What's going to be the focus of the hearing today?

HOWIE FISCHER: Well, under Arizona law, all state agency chiefs are supposed to be confirmed by the Senate, and it used to be these were handled by the committee that had expertise. So for example, the Public Safety Committee might handle the DPS director, the banking committee might handle the director of financial institutions. They created this, this new director nominations committee and put Jake Hoffman in charge. Now, you may know a little bit about him, not only in terms of being a "fake elector," but also being a member of the Freedom Caucus, and he has decided they're going to do a, let's just say a deep dive on all of the nominees.

A lot of them, he has either rejected or has asked a lot of questions that the governor considered inappropriate. He has slow walked some of them, according to the governor. So she pulled this little maneuver where she had all the director nominations that hadn't been confirmed, repealed, named somebody from her Department of Administration to head an agency. They went in and appointed the former director to be the deputy director. Then that person moved on to the next agency.

So we left all these agencies with deputy directors, who the governor is calling chief executive officers or chief cabinet officers or cabinet executive officers, she's got a whole bunch of names for them. Now, the question is, can the agency continue to run that way? The Senate is saying Warren Peterson, who is the president, is saying, no, you have to bring these people up for confirmation. And she's saying, nothing illegal about what I'm doing. So this morning, we're in court to find out what a judge thinks.

BRODIE: And this could potentially have some pretty significant implications. For example, if a judge says that this is not legal, that could potentially call into question any decision that this deputy director has made, right?

FISCHER: It could theoretically, although in general, what courts do is if you were seen to be serving under some authority, even if, let's say you weren't properly confirmed, unless they have a specific reason, they will not undo those things. You know, we had, for example, years ago, somebody serving illegally on the corporation commission until he was ejected. That was Tony West. What the court said is, yes, it's true he shouldn't have been there, but the decisions were made in good faith. So we're not going to undo the decisions.

More problematic becomes the question of, let's say the judge sides with the governor and that gives her a leg up to say, I'm gonna name my people. I decide, you know, who's qualified and you can't say a darn thing about it. You know, it's, there's a very delicate balance here. You know, this whole idea of advising consent is, is crucial to whether the Legislature has oversight over state agencies and that's what the Legislature wants a lot more of.

BRODIE: Sure. All right, Howie. So on Tuesday then, tomorrow, that's the deadline for the governor to act on a pair of housing bills that the Legislature sent. One of them dealing with a so called middle housing, things like duplexes, triplexes, things like that. Another one dealing with accessory dwelling units or casitas. That one has, has seemingly been a bit more controversial, at least, for the governor with the, you know, opposition from the League of Cities and Towns. What's the, the word at the Capitol about, you know, how people are feeling she might act on these?

FISCHER: Well, this is one of those toss-up questions. You know, the governor has vetoed a couple of housing bills in the past. She said she wants a compromise, she wants all parties, the developers and the cities and the neighborhoods, to sit down and come up with something. And so she has signed a few things, for example, it allows the conversion of unused commercial space for residential. Everyone seemed to be OK with that.

This middle housing bill seems to be something that folks can live with because they said you're going to take single family lots and convert them to, as you say, duplexes, triplexes, quads, townhomes, but it's only gonna be within a certain central business core and elsewhere. It could be up to 20% of other areas, but you have to have at least 10 acres. This one is more controversial because while some cities like Phoenix and Tucson do allow these because these backyard, you know, mother-in-law house, if you want to call them that, there are some restrictions on them.

For example, you know, cities may decide, you know, they only want one of these in a backyard. They may decide that there need to be design standards. Or the big sticking point seems to be what they can be used for in terms of, are they supposed to be used as a small rental unit? The cities say, that's not a problem, we'd like more affordable housing. Or are they going to become Airbnbs? And at that point, it's fine probably for the homeowner to have this little vacation home in their backyard that they can rent out. But the concern is, wait a second, I thought we were doing this to create more affordable housing. If all you're doing is creating more de facto hotel rooms, that's not affordable housing. And the cities in a lot of neighborhood groups are unhappy. They're also unhappy that, you know, you could build something that's truly ugly without any sort of design standards and you know, should the cities be able to regulate those?

BRODIE: All right. So Howie, that's Tuesday, tomorrow, that deadline. On Wednesday, the state Senate will be back in session working presumably on their border security measure. They were unable last week to vote that out of the chamber. Does it seem as though there's movement to meet some of Sen. Ken Bennett's demands to get him on board on this?

FISCHER: Well, they're certainly having meetings on this. The question is assuming that leadership says, OK, you're correct, Ken, maybe we should not include some of the provisions. Do you lose folks off the other end? One of the more controversial ones has to do with the fact that we have something called DACA. This is something put back in the Obama administration. It says if you're brought here as a child, it's no fault of your own. You know, it's not like you decide as a 2-year-old, hey, I'm gonna go cross the border. And they've been allowed to stay and they've in fact been allowed to work. That's sort of the way it's been. I know that Trump tried to get rid of it. It didn't work for him.

What's in this bill says that if somehow DACA goes away, we're going to allow them to be also deported. You know, they, they lose their exemption that they would have under the current law. And you know, Ken Bennett's point is, wait a second, I thought the whole purpose of this bill was perspective. We want to stop people coming across at the border, not going ahead and rounding up 20,000 DACA recipients in Arizona. And he said, I will not vote for the bill unless you remove this issue that says DACA recipients can be arrested and deported. 

There are a few other technical issues he has in there with how the wording is in terms of, you know, arrests and convictions and things like that. But that seems to be the, the key sticking point there now is, you know, you have people who say no, we, why should we corroborate a special privilege for DACA if DACA goes away because it is, remember, it's based on executive order and not federal law, should you be able to go ahead and say, OK, if we're going to deport people here illegally, that should include DACA recipients. This is a very heartfelt issue with Ken Bennett. He may be able to get some votes, but again, now you've got the Freedom Caucus members saying, why should we start carving out exceptions?

BRODIE: Yeah, that'll be interesting to watch on Wednesday. All right. That is Howie Fisher of Capital Media Services. Howie, good to talk to you as always. Thank you.

FISCHER: Great to be here.

KJZZ’s The Show transcripts are created on deadline. This text may not be in its final form. The authoritative record of KJZZ’s programming is the audio record.

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Mark Brodie is a co-host of The Show, KJZZ’s locally produced news magazine. Since starting at KJZZ in 2002, Brodie has been a host, reporter and producer, including several years covering the Arizona Legislature, based at the Capitol.