Rep. David Marshall resigned from the Arizona Legislature on Friday, days after the Navajo County Board of Supervisors appointed him the next county recorder — an appointment that could face legal challenges over claims it violates the state Constitution.
“This decision was not made lightly,” Marshall said in a letter delivered to House Speaker Steve Montenegro on Friday. “After careful consideration, I have concluded that stepping down is in the best interest of my family.”
Marshall makes no mention of the Navajo County appointment in the letter.
But on Tuesday, Marshall attended the board meeting where supervisors chose him to fill the vacancy in the recorder’s office resulting from Republican Timothy Jordan’s resignation earlier this year.
In videos of the meeting, Marshall can be heard thanking the supervisors.
Eligibility
But there are real concerns that Marshall isn’t eligible to fill the vacancy.
That’s because the Arizona Constitution says that state lawmakers cannot hold other state or county offices “during the term for which he shall have been elected.”
And some election attorneys believe that term doesn’t end just because Marshall resigned. They believe it runs through January 2027, when a new Legislature will take office.
“Whether he serves for one day or the full term, the term for which Representative Marshall has been elected runs until January of 2027,” Republican election attorney Timothy LaSota wrote in a letter to the Navajo County Board of Supervisors.
That is backed up by a 1977 legal opinion from Arizona Attorney General Bruce Babbitt, in response to questions about whether a lawmaker could resign to accept a gubernatorial appointment.
“This office has consistently opined that the foregoing constitutional provision, on its face, clearly prohibits the taking of any other office or employment during the elective term, whether or not the legislator resigns,” Babbitt wrote, noting that only school boards and advisory boards are exempt from that rule.
LaSota called on the board to withdraw Marshall’s appointment.
“It seems that the wise move would be to rescind this appointment before Mr. Marshall can purport to accept it by taking the oath of office,” he wrote.
Arizona Attorney General Kris Mayes also confirmed her office is looking into the legality of the appointment.
Even Navajo County Attorney Brad Carlyon acknowledged Marshall’s appointment is problematic. He told Axios Phoenix he forgot about the constitutional provision until after the vote and later informed Marshall that he could face a court challenge if he accepts the appointment.
LaSota said he plans to file a legal challenge if Marshall is sworn in.
“Legal action yessir (sic),” LaSota said in an email.
Marshall has repeatedly dodged questions about the whole ordeal.
“No,” he said when a KJZZ reporter approached him for comment at the Arizona Legislature on Thursday.
A spokesperson for the Navajo County Board of Supervisors did not respond to a request to comment on LaSota’s letter.
Other issues
LaSota also alleged the Navajo County Board of Supervisors may have violated Arizona’s Open Meeting Law, which requires boards to make most decisions in full view of the public.
That’s because the board did not take a traditional “roll call” vote during the appointment, which would require a board member to nominate Marshall. Each member of the five-person board would then have to vote for or against Marshall.
Instead, Board Chairman Daryl Seymore asked each board member to indicate whether or not they supported the Marshall appointment on a piece of paper.
Those votes were then handed to the county clerk and not read aloud, meaning the public has no idea how each member voted.
Seymore only confirmed that Marshall received at least the three votes necessary to secure the appointment.
“Secret ballots are inconsistent with the open meeting law, as every Court I know of to take up this issue has held,” LaSota wrote.
If the appointment stands, it will also affect the upcoming election for two seats on the Arizona Corporation Commission, the state’s top utility regulator.
Marshall is running alongside Rep. Ralph Heap (R-Mesa) in the Republican primary as part of a slate backed by the far-right Freedom Caucus that is trying to unseat incumbent Commissioners Nick Myers and Kevin Thompson.
But, according to state law, Marshall can’t run for the commission while finishing Jordan’s term as county recorder, which has more than two years left.
“Except during the final year of the term being served, no incumbent of a salaried elective office, whether holding by election or appointment, may offer himself for nomination or election to any salaried local, state or federal office.”
Heap told KJZZ he hopes Marshall will reject the appointment, but Marshall has not responded to requests for comment about his future plans.
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