Tag: legislature

SB 1454: AZ House views legislator misconduct as “another day at the office”

In response to today’s Arizona Republic article, More bills on HOAs expected next year, by Caitlin McGlade I posted the following comment —

The real issue here is the ethical conduct of a legislator who violated the constitution to get a  special interest bill put into law, her 3rd try.  “I have a responsibility to the stakeholders” Ugenti told the Senate GOV committee (‘stakeholders’ are the spcial interests and does not include homeowners). And, the subsequent “no harm, no foul” attitude of the House of Representatives to treat Ugenti’s conduct as just another day at work.  WRONG!  See details at https://pvtgov.wordpress.com.

“Ethics” deals with right and wrong, and the House is saying this was not wrong by not pursuing disciplinary action per House Rule 1, because it happens all the time.  Is the Legislature saying it is above the law, above the Constitution? That it can do as it pleases?  Recall the anger that erupted regarding the former State Senator Bundgaard highway incident where disciplinary action was sought. He resigned instead of testifying before the Ethics  Committee.  But, not here with a direct violation of the Arizona Constitution.

To clarify the article, I was following Ugenti’s failed forerunner bill, HB 2371, that was incorporated into SB 1454 thereby making it unconstitutional.  It was done on the last day of the session in the wee hours of the morning (the session ended at 12:59 AM). By hiding the “HOAS” subject from the title it prevented  the public from reacting to the bill.  And there was time to write Gov. Brewer before she signed it.

Many believe that there was some good and some bad in the bill, but sadly its invalidation was the result of a direct violation of the law.  The end does not justify the means.

With its failure to discipline Ugenti, the Legislature cannot claim to be a legitimate government.  Political scientists and philosophers maintain that the legitimacy of a government rests in fair and just laws, and not in the illusion of justice. 

In his analysis of Machiavelli’s The Prince, Hadley Arkes wrote,

“The founders understood that the principal mission of government was to secure people in their natural rights — to protect them against the lawless private thugs as well as of ill-intentioned legislators.”

AZ ethics chair finds no violation by Ugenti in SB 1454

See-hear-speak no evil
See-hear-speak no evil

In response to my petition[1] to the AZ Speaker of the House and House Ethics Committee to bring disciplinary action against Rep. Ugenti, I received a short, late evening response from the Ethics Committee Chair, Rep. Lovas.  The terse response amounted to “the act of offering an amendment on the floor does not rise to the level of disorderly behavior for purposes of Ethics Committee jurisdiction. . . . The Ethics Committee will not be taking the matter up further.”  This was a strict interpretation of the meaning of ethics, which under the House Rules deals only with financial issues. It says that a violation of the Arizona Constitution by an elected official is not an ethical concern.

Where ethical restraint is lacking, there can be no hope of overcoming problems. (The Dalai Lama).

 

Very much disappointed in Rep. Lovas’ response, I replied in a little more detail.

 

Rep. Lovas,

I appreciate your late evening response to my emails seeking disciplinary action against Rep. Ugenti for her conduct in submitting her waning hours amendment to SB 1454. The strict interpretation of the committee’s jurisdiction holding that Ugenti’s conduct was not “disorderly behavior for purposes of Ethics Committee jurisdiction” is disturbing. How can a violation of the law by an elected representative, a legislator, not be viewed as unethical? The bill with Ugenti’s amendment was stipulated by the Legislature (per paragraph 22 of the Stipulation) to have violated the Arizona Constitution’s prohibition against bills with more than one subject. And the court so invalidated her additions.

I am disappointed in your response. You treat this incident as “just another day at the office” and this is the way the Legislature works. That if a legislator can violate Section 13 of the Arizona Constitution, so be it. And if caught in doing so and a court invalidates the effects of the legislator’s actions, the attitude of the Ethics Committee seems to be, Oh well. The legislation is invalid. Let’s move on to next year. It smells of, if you can get away with it, good. If not, don’t worry since we will take no action.

 (I am well aware of Randall Gnant’s comments in his guide for the public, From Idea . . . To Bill . . . To Law, p. 51-52, on the not infrequent disregard of constitutionality of legislation by the Legislature).

I do not understand how Ugenti’s actions do not constitute grossly unethical conduct. It sends the message that, yes, this is the way it is. That the Legislature, as sovereign of the State of Arizona, can do no wrong. Sorry, I cannot accept that “this is the way it is.” The people have a “social contract” with the State of Arizona government that binds both parties, which, by your decision, shows that the Committee has chosen to ignore its duties and responsibilities under that contract, the Arizona Constitution.

I understand that much of what I had described in my case for disciplinary action is considered as that’s the way legislation is accomplished, that’s the way the legislature works.[2] Nothing wrong. However, in your response you categorize and restrict Ugenti’s action as a simple filing of an amendment. You mention nothing about the bill was her third and last ditch attempt to get it passed into law. Or that it was in violation of the Constitution and House Rule 16(D), which prohibits any such bill. House Rule 1 says that a violation of these rules can result in disciplinary action and even the expulsion of a legislator. You trivialized the entire incident.

Let us understand the gravity of Ugenti’s knowing and planned violation of the constitution. In the late 1930s President Roosevelt attempted to get legislation passed to pack the US Supreme Court in order to accomplish goals that he believed were for the good of the people — not the party, not the special interests. He was opposed by the US Senate that believed that the President was tampering with the balance of the separation of powers, which was not good for the country. In this incident, no laws were broken and no rules were violated in spite of the overwhelming controversy and seriousness of the legislation.

 More recently, the US Supreme Court in its Kelo decision found justification for interpreting “public purpose” the same as having the eminent domain meaning as “public use.” No laws and no procedures or rules were broken. All was legit and was viewed as in the best interest of the country. But, sadly, not with SB 1454. Not only was a Rule broken, but the Arizona Constitution as well. And the evidence I put forth shows the heavy hand of special interests, the HOA “stakeholder” cabal. (There is more that I have not yet released). Yet, no evil is seen by the Ethics Committee and that no investigation into the affair is warranted. What message does this send to the people of Arizona? What does it say about the State of Arizona?

 I cannot stress the need for action by the Ethics Committee to restore the faith and confidence in the Arizona Legislature. I ask that the committee take whatever action is appropriate and necessary for the House to commence disciplinary charges per House Rule 1. Ugenti must not be given a clean bill of health, a pass, a walk to try again another time. Disciplinary action will also serve as a deterrent to other so inclined legislators.

Please urge the Speaker to undertake disciplinary action on behalf the people, for the good of Arizona.

 

George K. Staropoli

 

SB 1454: Machiavelli at work in the AZ legislature – Part 1

Part 1. Rep. Ugenti, Senator Griffin and lobbyist Sandquist 

(See Part 2).

Back in July I commented about SB1454 and wondered whether the Constitution or Machiavelli was alive and well in the Arizona Legislature.  In the subsequent two months I’ve come into possession of additional information on the events surrounding SB 1454 and its predecessor, HB 2371, and the underhanded manner in which it became an unconstitutional law. 

This post elaborates on the above commentary, which should be read first as it provides background information. This post also provides insight on how a legislature really functions, and undoubtedly how your legislature functions with respect to HOA legislation.

Furthermore, for a better understanding of the events the reader should view my video of the HB 2371 hearing before Senator Griffin’s GE committee.  It includes some interesting statements between Rep. Ugenti, who sponsored HB 2371, and Griffin; and between the HOA manager association lobbyist and Griffin. (The lobbyist’s statements begin at 9:13 into the 11 minute video). 

Please pay attention not only to their words, but to their body language as well. Listen to their arguments, but closely examine what is being said “between the lines.”

 

A.        Representative Ugenti

The March video of Senator Griffin’s hearing shows a perky Ugenti exuding confidence. She makes use of the special interest mantra, “stakeholder,” and states how all the stakeholders met and agreed upon the bill. She basically tells the committee that they are vendors (“stakeholders” refers not to homeowners, but to all those vendors who are making money off the HOA and off the homeowners).  The problem is, is that these vendors are daring to set legislation affecting the rights of homeowners that serve their own agenda.  Yet no committee member asks, “Where are the homeowners?”

Ugenti stated that each year there was “a plethora of personal HOA legislation”[1] and tried “to spare the [committee] members the constant agony of many personal pieces of HOA legislation,” as contrasted to the industry legislation. Ugenti also said that she “felt very responsible to the stakeholders.”

 

B.        Senator Griffin

Senator Griffin is also the Senate President Pro Tempore, second in line in the leadership hierarchy. The AZ Legislative Manual states that, “the chief duties of these officers are to preside over Senate and House proceedings and to otherwise assume the duties of the President and the Speaker when they are absent from the Legislature.”  

Griffin played a role in two separate incidents.   The first, see (C) below, is her withdrawal of an amendment to HB 2371, thereby allowing HB2371 to go on the Consent Calendar. This calendar leads to a direct vote by the Floor without further debate by all the representatives. However, it was objected to being on the Consent Calendar, which forced the bill to be debated by the Committee of the Whole (COW).  The bill was never debated and never came to a vote; it died in the Senate.

Second, having faced defeat in her bill Ugenti once again obtained the co-operation of President Pro Tem Griffin. Griffin added the failed HB 2371 HOA amendments to HB 2518 (Rep. Olson was the Sponsor), now before the Senate.  The bill passed the Senate and was sent to the House where a Conference Committee was recommended – the House did not accept the Griffin/Ugenti amendment.  This time, the House failed to hear the amended HB 2518 and it, too, died along with Ugenti’s HB 2371 HOA amendments.[2]

  “The role of morals in politics is mainly to cultivate illusions . . . politics is merely appearance and morality is merely pretense.” (“Machiavelli and America,” Hadley Arkes, p. 104, The Prince (Yale University Press, 1999)).

 

 C.       Jeff Sandquist, AACM lobbyist

At the end of the above mentioned video (see Part 1), Jeff Sandquist, lobbyist for the Arizona Association of Community Managers (AACM) addressed the committee.  AACM stood to gain much from HB 2371, which would allow its members to represent HOAs in small claims court and before administrative law judges at OAH (Office of Administrative Hearings).  State certified legal document preparers (paralegals) are not allowed this right. There were no provisions in the bill for licensing, training, or educating property managers to adequately represent HOAs. Nor equal representation for homeowners.

Note the very friendly dialogue between Sandquist and the Chair, Griffin, which is out of order for a committee hearing.  “Tell your Mom hello for me.” Griffin mentions that making an amendment got her to see her “buddy” Sandquist.  He thanks her for not offering her amendment.

Sandquist also vaguely spoke about how the courts would like to see a provision moved to another section, implying an acceptance by the courts. It also implies a recognition of a separation of powers issue on granting HOA managers representation rights.

Two days after filing the complaint, about a month after the Governor signed SB 1454, a Supreme Court Rule 31 change was requested seeking an exception for HOA managers to be able to represent HOAs in small claims court (still pending).

[1] I digress. My emphasis reflects, to good extent, homeowners failing to see the broader picture beyond their HOA problem, such as raising substantive issues of constitutionality. Ugenti is saying that homeowners don’t really understand the problems with HOAs, which only the HOA industry special interests can solve. It is evident that this is the view held by all state legislatures across the country. Homeowners have failed to deal with this reality.

[2] In my 13 years I have seen isolated cases in various legislatures in different states where the right and ethical action was taken and legislation was defeated or passed as appropriate, as we see here with these 2 bills.  But, on the whole, far too few.

SB 1454: Machiavelli at work in the AZ legislature – Part 2

Part 2 – UPL violations and “HOAS” in the title.

(See Part 1).

E.         Sanctions against HOA managers violating UPL

In spite of several emails sent to Rep. Ugenti, the Senate GE members, and the public in general there was no mention in the public hearings about the actions taken by the Arizona Supreme Court document preparer board in 2012 regarding the unauthorized practice of law, Supreme Court Rule 31). (See Arizona’s HB 2371 empowers unlicensed HOA property managers to avoid UPL).  I refer to the State Bar UPL Advisory Opinion, 12-01 and the decision holding AAM, a AACM and CAI member, to have repeatedly violated UPL.  (Supreme Court Board of Legal Document Preparers v. AAM, LDP-NFC-09-L094 and LDP-NFC-10-L026). Rather than seek remedial legislation SB1454 and HB 2371 sought to exempt HOA managers from UPL.

The illusion and appearance that all is well and that no stakeholder or legislator was aware of these actions was successful. 

 

F.         Arizona Capitol Times showing “HOAS” in SB 1454 short title

Finally, the weekly Arizona Capitol Times (ACT) covers goings on at the capitol and produces an online LOLA Report listing the short and long titles of all the bills. Its LOLA shows “HOAS” in the short tile of SB 1454. It states that the info is taken “from Arizona Capitol Reports reporters and records and from state and other databases. Bill-tracking information is updated continuously during legislative sessions.”   But, the official ALIS public access to legislative bill information does not show a short title with “HOAS.”   Who, when, and how was “HOAS” removed from the short title?  And why was it removed?  Surely ACT had no motive to change ALIS to add “HOAS”, and would not dare to do so.

Curiously, the AACM website under Legislative Update shows the same short title as from LOLA, as AACM states that’s where it got the info.  Why wasn’t this called to Ugenti’s attention, or did nobody notice?  Yet, there’s an addendum tacked on to the title, in all caps, “AS SIGNED BY GOVERNOR,” which could only come on June 20th or later with still no correction to reflect the official ALIS version.  Why not?

It has come to my attention that Jeff Sandquist, AACM lobbyist, explained that the state’s position for settling the constitutionality lawsuit was because it wanted to save portions of the bill that it thought was more important.  He seems to be aware that if the court declared the entire bill unconstitutional the initial SB 1454 provisions dealing with Elections would also be invalidated. However, by leaving off “HOAS” in the title the State could argue, if indeed the “plot” was discovered, as it was, that only the second part of Section 13 of the Constitution applied. This would only invalidate the HOA provisions. And so it happened. 

Was this the plan for removing “HOAS”?  Was this the plan for getting Senator Yee’s approval for attaching HB 2371 to her bill, SB 1454?  That her original bill would survive? Recall that Rep. Olson apparently didn’t approve of the Griffin attempt to add HB 2371 to his bill, HB 2518, and it died.

So I argue SB1454 was rushed through in the final hours of the night on the last day of the session, in the midst of attention focused on the budget and Medicare issues. The session ended just before 1:00 AM on the 14th.

“The founders understood that the principal mission of government was to secure people in their natural rights — to protect them against the lawless private thugs as well as of ill-intentioned legislators.” (“Machiavelli and America,” Hadley Arkes, p. 145, The Prince (Yale University Press, 1999)).

The arguments and events presented here make a case for a frustrated Rep. Ugenti who, in an act of desperation, intentionally violated the Arizona Constitution and House Rule 16(D).  The Legislature cannot sit idly by and allow a flagrant violation of the Arizona Constitution to go unpunished. It must send a message that such ardent belief in a bill does not allow for the law to be broken and that the end does not justify the means. 

I have urged the Arizona Speaker of the House and House Ethics Committee to bring disciplinary charges against Rep. Ugenti and to seek her expulsion under House Rule 1. Many questions remain unanswered.

AZ Rep. explains failure of HOA reform legislation

I feel that my Footnote 1 from an upcoming commentary on SB 1454 should stand by itself. Here’s the paragraph and the Footnote.

Rep. Ugenti stated that each year there was “a plethora of personal HOA legislation” and tried “to spare the [committee] members the constant agony of many personal pieces of HOA legislation,” as contrasted to the industry legislation.

 Footnote 1.  I digress. My emphasis reflects, to good extent, homeowners failing to see the broader picture beyond their HOA problem, such as raising substantive issues of constitutionality. Ugenti is saying that homeowners don’t really understand the problems with HOAs, which only the HOA industry special interests can solve. It is evident that this is the view held by all state legislatures across the country. Homeowners have failed to deal with this reality.

A good part of this failure must be laid on the leaders of the homeowner rights advocacy movement. The leaders who appear, while paying lip service to constitutionality issues, to have failed to provide the necessary and adequate guidance and direction to accomplish HOA reform legislation.  Instead, take for example the recent SB 1454 post and comments on the Privatopia Papers where portions of just one news article are quoted. The quotes indicate that the plaintiffs had “done wrong to homeowners” by winning their constitutionality challenge. The challenge was against certain actions taken by a rogue legislator with respect to an HOA bill. The balancing and explanatory parts of the article were not quoted.

Fred Pilot, a long term participant in HOA reform issues commented about “So does this mean local governments can continue to utilize CID mandates?”, which is totally irrelevant and non-applicable to the victorious lawsuit.  Or to his biased quote from the article.  “What has “CID mandates” got to do with the article?  And attempts to clarify the matter as to the implied, “the plaintiffs have harmed the homeowners when they won”, resulted in their non-publication by the owner, Evan McKenzie.

Yet, McKenzie wrote that it was a fair question deserving an answer, but apparently not as a comment on Privatopia Papers. He wrote “my understanding is that SB 1454 . . . prohibited municipalities and planning and zoning commissions from requiring developers to create HOAs.”  McKenzie lacks the understanding that these provisions were twice killed in this legislative session; and that Ugenti had to underhandedly get the bill passed in the wee hours of the morning on the last day of the session.  But, I guess that has no bearing in this matter. It was only us evil plaintiffs who done homeowners in, under the principle that the end justifies the means.

 Not a word about how this lawsuit sent a message to pro-HOA legislators and lobbyists that they can’t get away with such flagrant abuse of the laws. Not a word. But the charges stand, unanswered on the Privatopia Papers.

 Unless the leaders get their act together, the arguments and implications of Ugenti’s quote above will continue to dominate attempts at HOA reforms.