The mayor of Chandler is facing questions about whether he is legally allowed to be serving in that office.
Kevin Hartke was appointed to the City Council in 2008 and then won two elections to the council, in 2010 and 2014. At the end of that term, in 2018, he ran for, and was elected mayor; he was re-elected to that job in 2022.
But, a provision in the city charter has led some to wonder if he was eligible to run for mayor in the first place. His 2022 opponent has filed a complaint, and his colleagues on the council are debating whether to change the language in the city charter as a result of this controversy.
Andy Gaona, an election, political and public law attorney and partner with the Phoenix firm of Coppersmith Brockelman, is not involved in this case and joined The Show to talk about what the legal issues are.
Full conversation
MARK BRODIE: So Andy, what does Chandler's charter actually say about who is and who is not eligible to hold office?
ANDY GAONA: Sure, so the Chandler City Charter says that no person shall be eligible to be elected to the office of council member for more than two consecutive terms, or the office of mayor for more than two consecutive terms, or to more than a consecutive combination of same. Sentence 1.
Sentence 2, a person elected to two consecutive terms as a council member, or two consecutive terms as a mayor, or a combination, combination of same as set forth shall not be eligible to hold either office again until four years have elapsed.
BRODIE: So you need a break in between.
GAONA: Correct.
BRODIE: So, do you read that to suggest that the current mayor of Chandler should not be the mayor of Chandler?
GAONA: You know, Mark, in my practice, I litigate a lot of really complicated statutory construction questions, constitutional issues, and a lot of times the text is ambiguous, and we're, we're struggling here. To me, this text seems relatively clear, that the current mayor is probably not eligible to currently hold his office.
BRODIE: And presumably then if, if that is your belief, then the previous mayors who would also fall into this category also probably should not have been there?
GAONA: That's right, and you know, you're getting to what the city has said as to why Mayor Hartke may be able to serve in office and why this may be ambiguous, which is, well, we've always done it this way. The problem is when you're interpreting statutes and constitutions and city charters which function like the constitution of a city, that's not a very good argument when the text is plain. And our courts, in particular, our current Supreme Court, have said we're going to stop our analysis if the text is clear and it provides a clear answer to the question. And to me again, this text is pretty clear.
BRODIE: Well, so why do you think it is, and this might be a little bit of speculation, but like this is in the city charter, presumably it's been there for more than just, you know, the last couple of weeks. Why has nobody seen this or or thought to look at this before?
GAONA: That's an excellent question. One I'm not capable of answering. This is certainly something that could have been brought up, for example, when Mayor Hartke filed his nomination petitions. Someone could have filed a lawsuit at that point saying you can't be on the ballot because you are not eligible to be on the ballot. Someone could have brought this up.
His opponent, Ruth Jones in the 2022 election could have brought this up in an election contest that has to be filed right after the election is canvassed. It didn't get brought up then and it's only being brought up now and you know, it's a good question about why no one thought of this earlier.
BRODIE: So you mentioned Ruth Jones, Mayor Hartke's opponent in the last election. She has filed a complaint. Meanwhile, the City Council is looking at asking voters to change this provision. Is it that simple just to make it OK, assuming that the council puts it on the ballot and voters approve it?
GAONA: It's not that simple. I haven't seen either the complaint that was filed, and I haven't studied the proposed amendment to the charter in any level of detail. It's possible it could cure the problem going forward, but the question is what do we do now? And what do we do about everything that's happened since the mayor was elected in 2022, which I think are a lot of the questions that people are raising right now in the city as they try to figure out a path forward, having received this legal opinion that they have that the mayor may not be able to be there.
BRODIE: So what are some of the options because the mayor has obviously taken a lot of votes since he was, since he was elected. So like, what happens to all of that?
GAONA: The good news for Chandler and its city operations, I suppose, is that in Arizona, we have something called the de facto officer doctrine that says that if you are serving in a public office and it's later determined that you were not eligible for that office, you weren't supposed to be there that the law in most cases is going to presume that the acts that you took were valid and is not going to let someone come in and say, for example, all of the votes that Mayor Hartke took from 2022 to the point at which he resigns or is removed or or is not elected for yet another term, were invalid.
So that may not apply to everything he did, but for most things that de facto officer doctrine should give the city legal cover.
BRODIE: So in theory then, any policies that have been enacted or votes have taken would stand, generally speaking, even if it's determined that he shouldn't have been taking those votes.
GAONA: That's correct. And we have that because we want the law favors continuity in government and it doesn't favor the chaos that might happen, for example, if everything that Mayor Hartke voted on over the past several years was overturned, every rezoning case, every liquor license, you can see how if we were to say that all of that was invalid, it would cause the city of Chandler, you know, a whole lot of trouble. So we have that doctrine so that we don't end up in that situation.
BRODIE: Is there precedent for this in Arizona?
GAONA: There is, several years ago, a gentleman named Tony West was elected to the Arizona Corporation Commission. He was sworn into office, began to serve, and it was discovered somewhere along the line that he actually wasn't qualified to be a corporation commissioner. He had had some sort of securities dealer registration that disqualified him from holding that office, and there was what's called a quo warranto action filed against him by Renz Jennings, who was the incumbent who Tony West had defeated.
And ultimately, the Arizona Supreme Court agreed that Tony West was not eligible to hold office. It ousted Mr. West from office, and it said that Renz Jennings, as the incumbent, should be reinstated as a holdover, as it's known under the law, to finish out whatever was left of that term until that the Office of Corporation commissioner was filled, that vacancy rather was filled under Arizona law.
BRODIE: So, from a practical logistical standpoint, the next mayoral election in Chandler will be next year. What are the steps that have to happen between now or that could happen between now and then? Like what kinds of actions could we potentially see?
GAONA: So option one is, the county attorney here files a quo warranto action against Mayor Hartke saying you are not eligible to hold this office and the court needs to remove you. If Ms. Jones or somebody else who claims they have a right to that office were to ask the county attorney to file such an action, and they don't do so, that individual may have standing to file an action on their own in court. So that's step one.
The other one is that there's a provision under the city charter actually, where the a city council, a member of the City Council rather, or the mayor can forfeit their office. And it says that you can forfeit your office if you lack any qualification or if you violate any express provision of the charter. If the City Council wanted to, they could institute forfeiture proceedings against Mayor Hartke. He's got due process rights to a hearing and such if they were to do that.
But in either case, if that were successful, if a quo warranto action were successful, there would be a vacancy in the office of the mayor and under the city charter, the remaining members of the City Council would have to fill that within 30 days by appointment, or if they don't do so within 30 days, call a special election that has to be held no more than 120 days after the vacancy occurs.
BRODIE: Do you think it's safe to say that there are people in charter cities across the state scouring them to see if there are similar provisions to this and that if anybody who's currently serving in office or maybe has in the recent past has violated it?
GAONA: I would think so. I think those legal departments and their outside counsel are, are, you know, looking at all those documents to see what they say because what we saw in Chandler, for example, is everybody's sort of being surprised once it was brought to their attention that this was even a remote possibility. So I think a lot of people may have assumptions about what things say and then you read them again, you know, fresh eyes and whatnot, and realize that, you know, we may have a problem here.
