The head of the Arizona state Senate is taking Gov. Katie Hobbs to court over her decision to appoint agency leaders without the approval of lawmakers.
On Tuesday, Senate President Warren Petersen filed a special action complaint against Hobbs, accusing her of violating state law by circumventing legislative hearings for her appointees and asking the Maricopa County Superior Court to restore the decades-long practice of requiring Senate approval for nominees.
“While the Governor has discretion to select a nominee of her choosing, her statutory duty to promptly make a nomination and transmit such nomination to the President of the Senate is mandatory and non-discretionary,” Petersen wrote in the brief. ‘’
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The fight over director nominations
The process for approving agency heads has been a point of particular contention throughout Hobbs’ first year as governor. Arizona law directs the chief executive to nominate candidates to lead state agencies. Those nominees make up the governor’s cabinet, and are handpicked with an eye toward carrying out their vision for the state. Before they can be considered legal state agency directors, however, nominees must be considered and approved by the state Senate.
In past years, senate confirmations occurred with little fanfare, following brief interviews with relevant legislative committees; the nominee for the Arizona Department of Health Services would meet with the Senate Committee on Health and Human Services, for example. But this year, with the Republican-majority legislature at loggerheads with Hobbs, a Democrat, the state Senate formed a specific committee to vet and interview nominees.
The Committee on Director Nominations, led by Sen. Jake Hoffman, a Queen Creek Republican who also heads the newly minted far-right Arizona Freedom Caucus, turned a once simple process into one that mirrored the hours-long interrogations held at the federal level. Out of 13 nominations put forward by Hobbs, 10 were interviewed and only seven were ultimately recommended for confirmation by the full Senate. More than one was dismissed on ideological grounds.
Dr. Theresa Cullen, chosen by Hobbs to lead the state health department, was rejected after an acrimonious hearing that included accusations that her decision as the Pima County public health director to shutter schools early on in the pandemic resulted in an increase in depression and suicide among students. And the nomination of Elizabeth Alvarado-Thorson to the directorship of the Arizona Department of Administration, which oversees state-funded health insurance, was frozen after Republicans grilled her on her personal beliefs about abortion, despite the fact that her duty would be to strictly implement state law and policy and not create it.
With numerous candidates left to interview and frustrated with the process, Hobbs withdrew her list of pending nominations in September and reassigned them as executive deputy directors, effectively sidestepping the need for senate confirmations. To accomplish that, Hobbs elevated her Director of Operations, Ben Henderson, to the position of interim director for 13 agencies, one after the other. During his tenure, which at times was no more than an hour long, Henderson quickly appointed each of Hobbs’ picks as executive deputy directors of their respective agencies and then resigned.
State law allows the governor to assign interim directors in lieu of acting directors when the legislature is out of session or fails to act on nominations. Vacancies, meanwhile, must be filled and submitted for senate approval by the governor, either promptly if the legislature is in session or within the first week of the following session. No one can serve in the director’s position for longer than a year without confirmation.
Republicans: Hobbs’ ‘temper tantrum’ is illegal
Hobbs’ decision to circumvent lawmaker vetting constituted an illegal action, according to Petersen.
“In refusing to nominate agency directors and bypassing the Senate’s advice and consent processes, the Governor has violated a binding statutory directive, acted in excess of her lawful authority, and failed to perform a nondiscretionary duty,” Petersen’s attorneys wrote.
While the executive deputy directors aren’t technically agency heads — instead filling in for a vacant director position — it isn’t the first time in Arizona history that state agencies have been led by directors in all but name. In 1991, Republican Gov. Fife Symington employed a similar tactic when the Democrat-controlled Senate refused to confirm his pick for the Department of Administration, installing his choice as the deputy director and leaving the top slot empty.
And unless the court agrees with Petersen or the state Senate makes changes, it appears the top position for at least 13 state agencies will remain vacant, and the leadership for those agencies will be concentrated in the second-in-command positions of the executive deputy directors. Despite two months of discussions, Petersen said in his lawsuit, Hobbs has remained firm in her commitment not to put forth any more nominees for the senate to interview unless the confirmation process is altered. Petersen urged the court to find that Hobbs’ appointments are in violation of state law, declare that conditioning future nominations on changes to the senate confirmation process is illegal, and order that Hobbs return to the traditional nomination process. He also requested that the governor be required to pay his attorney fees.
In a written statement, Hoffman criticized Hobbs’ move to bypass senate confirmation hearings for “forcing agencies to operate illegally.” The Queen Creek Republican denounced her unwillingness to work with Republicans and said it would only serve to hurt everyday Arizonans.
“She’s made it abundantly clear to voters that Democrats care more about playing petulant political games and throwing temper tantrums than actually governing,” he said, in an emailed statement. “Republicans, on the other hand, are committed to creating a government that works for every Arizonan.”
Christian Slater, a spokesman for Hobbs, shot back that the governor was left with no other option after Republicans continually stonewalled her nominees.
“After Jake Hoffman and the Senate’s refusal to meaningfully do their job, Governor Hobbs took lawful action to fulfill her duties and ensure Arizonas can continue to rely on critical services from state agencies,” he said. “She stands ready to work with anybody in the Senate who is serious about putting the political games aside and delivering for everyday arizonans, and as she’s said from day one, she remains open to a fair and timely process for the confirmation of nominees.”