Arizona agency handbook

              Agency Handbook
http://www.azag.gov/Agency_Handbook/[11/8/2012 3:47:03 PM]
A.R.S. § 41-192(A)(8) requires the Attorney General to “compile, publish and distribute to . . . persons
and government entities on request, at least every ten years, the Arizona agency handbook.” Due to the
high cost of publishing, the current version of the Handbook is posted on the Attorney General’s Web
site to satisfy this statutory requirement. (Revised 2011)
PREFACE
I proudly present the 2011 edition of the Arizona Agency Handbook. This publication is intended to
provide guidance to State officers and employees and to the lawyers who represent the State or appear
before its boards and agencies. The Handbook does not itself create legal rights or obligations; instead it
is a reference source that discusses laws otherwise created by statutes, regulations, and the state or
federal constitutions.
This edition of the Handbook supersedes the 2001 edition and reflects the many changes that have
occurred in the laws governing state agencies. Among other things, the 2011 edition addresses the
significant new or amended laws on such topics as open meetings, public records, discrimination law,
administrative adjudications, and rulemaking.
The 2011 edition of the Handbook is available on the website of the Attorney General's Office at
www.azag.gov. Individual chapters will be updated periodically to reflect significant legal developments,
and such revisions will be posted on the website as they become available. Comments and suggestions
concerning the Handbook are welcome and should be sent to the Solicitor General's Office at the Office
Agency Handbook
http://www.azag.gov/Agency_Handbook/[11/8/2012 3:47:03 PM]
of the Attorney General, 1275 W. Washington Street, Phoenix, Arizona, 85007.
Updating the Handbook required many hours of work by lawyers, legal assistants, and other staff
throughout the Attorney General's Office, and I sincerely thank all of those who did the research, writing,
editing, proof reading, and cite checking necessary to complete this massive project.
Very truly yours,
Attorney General Tom Horne
ARIZONA AGENCY HANDBOOK
HANDBOOK COORDINATORS
DAVID R. COLE, Solicitor General
MARY JO FOSTER, Special Counsel, Ethics & Training
CONTRIBUTORS
JIM BARTON
NANCY BECK
PAULA S. BICKETT
SAMANTHA BLEVINS
NANCY BONNELL
CARRIE BRENNAN
DENNIS CARPENTER
TOM COLLINS
JOAN DALTON
SUSAN DAVIS
ARDYN FEKEN
CHARLES FERRIS
JEANNE GALVIN
BETSY GORDON
VALLI GOSS
JAMIE HARDING
JOY HERNBRODE
ANN HOBART
LAUREN LOWE
MARNA MCLENDON
MARIA MORLACCI
CHRIS MUNNS
REX NOWLAN
DAN SCHAACK
BOB SOKOL
Agency Handbook
http://www.azag.gov/Agency_Handbook/[11/8/2012 3:47:03 PM]
GREG STANTON
STACY SHUMAN
KATHLEEN P. SWEENEY
JOAN WALTHER
MARY D. WILLIAMS
MARK WILSON
SPECIAL THANKS TO SGO EXTERNS STEVE ELZINGA, ANN-MARIE CRUICKSHANK, AND ANDRA
STEVENS FOR THEIR ASSISTANCE WITH CITE CHECKING.
TABLE OF CONTENTS
CHAPTER
01. THE ATTORNEY GENERAL AND THE DEPARTMENT OF LAW
02. PUBLIC OFFICERS AND EMPLOYEES
03. PERSONNEL
04. PUBLIC MONIES
05. PROCUREMENT
06. PUBLIC RECORDS
07. OPEN MEETINGS
08. CONFLICT OF INTEREST
09. LICENSING
10. ADMINISTRATIVE ADJUDICATIONS
11. RULEMAKING
12. ENFORCEMENT
13. LITIGATION AGAINST STATE ENTITIES
14. DETECTION OF CRIMINAL VIOLATIONS
15. DISCRIMINATION LAW
16. LOBBYING
INDEX
Revised 2011
CHAPTER 1
THE ATTORNEY GENERAL AND THE DEPARTMENT OF LAW
Table of Contents
Section 1.1 Scope of This Chapter
Section 1.2 Establishment of the Office of the Attorney General
Section 1.3 Statutory Powers and Duties of the Attorney General
1.3.1 General Powers and Duties
1.3.2 Power to Organize Office and Organizational Structure of the
Department of Law
1.3.3 Employment of Legal Counsel by the Attorney General and State
Agencies
1.3.4 General Representation Powers
1.3.5 Representation of Individual Officers and Employees in Civil
Actions
1.3.6 Power to Settle Claims and Lawsuits Against the State and Boards,
Commissions, and Agencies of the State
1.3.7 Powers and Duties Relating to County Attorneys
1.3.8 Opinion-Writing Authority
1.3.9 Power to Approve Administrative Rules
1.3.10 Authority to Approve Bonds
1.3.11 Power to Enforce Criminal Laws
1.3.12 Power to Enforce the Consumer Fraud Act
1.3.13 Power to Enforce the State Antitrust Act
1.3.14 Power to Enforce the State Civil Rights Act
Revised 2011
1.3.15 Power to Collect Debts
1.3.16 Power to Enforce the Arizona Open Meeting Law
1.3.17 Power to Enforce Arizona Immigration Related Statutes
1.3.18 Miscellaneous Powers and Duties
Section 1.4 Role of the Attorney General in Representing and Advising State
Administrative Agencies, Public Officers, and Employees
1.4.1 Administrative Agencies
1.4.2 Public Officers and Employees
1.4.3 Legal Assistance to Members of the Public
1.4.4 Legislative Representation for Public Officers and Employees
Section 1.5 Role of the Attorney General in Issuing Legal Opinions
1.5.1 Authority to Issue Opinions
1.5.2 Request Procedure
1.5.3 Scope of Opinions
1.5.4 Education Opinions
1.5.5 Opinion Summaries
Section 1.6 Role of the Attorney General in the Adoption of Administrative
Rules
Section 1.7 Role of the Attorney General in Approving Contracts, Leases, and
Intergovernmental Agreements
1.7.1 Contracts and Leases
1.7.2 Intergovernmental Agreements
Section 1.8 Investigative Services Within the Department of Law
Section 1.9 Attorney General’s Guidelines for Representing State Agencies
Revised 2011
1.9.1 Scope of the Attorney General’s Duty to Represent State Agencies
1.9.2 Attorney General’s Representational Role for the State, Its
Agencies, and Employees
1.9.2.1 Attorney General’s Attorney-Client Relationship to the State, Its
Agencies and Employees
1.9.2.2 Attorney Client Privilege and Waiver of the Privilege
1.9.2.3 Agency Requests for Actions or Defenses That Are Not Legally
Supportable or Are Interposed for Delay
1.9.2.4 Adverse Interests Other Than Enforcement Actions
1.9.2.5 Illegal Activity or Other Action Requiring Enforcement Actions
Against State Officials
1.9.3 Multiple Representation of State Agencies
1.9.3.1 Scope of Section
1.9.3.2 Non-Judicial Proceedings
1.9.3.3 Quasi-Judicial Proceedings
1.9.3.4 Judicial Proceedings
1.9.4 Agency Adjudicatory Proceedings
1.9.4.1 Scope of Section
1.9.4.2 Advocate
1.9.4.3. Selection of Advisor
1.9.4.4 Participation in Preliminary Matters
1.9.4.5 Prohibition on Communication Between the Advocate and Advisor
1.9.4.6 Limitations on Advocate
1.9.4.7 Limitations on Advisor
1.9.4.8 Disregard of Advice
Revised 2011
1.9.4.9 Judicial Review
1.9.4.10 Comments
1.9.5 Agency Representation by Outside Counsel
1.9.5.1 Authority to Proceed
1.9.5.2 Available Funds
1.9.5.3 Appointment
1.9.5.4 Control of Appointed Counsel
1.9.6 Attorney General’s Membership on Quasi-Judicial Public Entities
1.9.6.1 General Rule
1.9.6.2 Issues of Compelling Public Interest
1-1 Revised 2011
CHAPTER 1
THE ATTORNEY GENERAL AND DEPARTMENT OF LAW
1.1 Scope of This Chapter. This Chapter discusses the powers and duties of
the Attorney General, particularly as they concern state agencies, officers, and employees.
The Attorney General’s Office, also referred to as the Department of Law, provides legal
advice to state agencies, except those specifically exempted by statute. This Chapter is
intended to help state agencies, officers, and employees identify when they should seek
assistance from the Attorney General’s Office. Appendix 1.1 contains an organizational
chart identifying the divisions and sections within the office. If questions arise that are not
addressed in this Chapter, state agencies and other state entities should contact either
their assigned Assistant Attorney General or the chief counsel for the appropriate division
or section. For issues related to litigation against state agencies, officers, and employees,
see Chapter 13.
1.2 Establishment of the Office of the Attorney General. The Office of the
Attorney General is created by the Arizona Constitution in article V, section 1. The
constitution does not prescribe the powers or duties of the Attorney General but mandates
that the legislature prescribe them. Ariz. Const. art. V, § 9. The legislature is limited,
however, in its power to remove powers and duties of the Attorney General. See Giss v.
Jordan, 82 Ariz. 152, 309 P.2d 779 (1957); Hudson v. Kelly, 76 Ariz. 255, 263 P.2d 362
(1953).
1.3 Statutory Powers and Duties of the Attorney General.
1.3.1 General Powers and Duties. The legislature has prescribed the general
powers and duties of the Attorney General in Arizona Revised Statutes ("A.R.S.")
§§ 41-191 to -198. The Attorney General directs the Department of Law ("the
Department") and serves as the chief legal officer of the State and the various departments
and agencies of the State. A.R.S. § 41-192(A). The following subsections of this Chapter
focus on the powers and duties of the Attorney General in advising and representing state
agencies. These subsections are not exhaustive; they merely describe the general powers
and duties of the Attorney General. Agencies should review this Chapter and the statutes
creating the agency and defining the agency's authority to ascertain whether the Attorney
General has specific powers and duties pertaining to that agency.
1.3.2 Power to Organize Office and Organizational Structure of the
Department of Law. The Attorney General may organize the Department into bureaus,
subdivisions, or units for the efficient and economical operation of the Department. A.R.S.
§ 41-192(B)(1). The Attorney General may also consolidate or abolish bureaus,
1−2 Revised 2011
subdivisions, or units within the Department. Id. The Attorney General is required by law
to organize a civil rights division within the Department and to enforce the civil rights laws.
A.R.S. §§ 41-192(A)(7), -1401. (For a discussion of Arizona and federal civil rights laws,
see rights laws, see Chapter 15.) The Attorney General may hire and assign assistant
attorneys general and other employees as are "necessary to perform the functions of the
department." A.R.S. § 41-192(B)(3).
An organizational chart of the Department, listing the divisions and sections and
briefly describing their functions and responsibilities, is attached as Appendix 1.1.
1.3.3 Employment of Legal Counsel by the Attorney General and State
Agencies. Except as otherwise provided by law, state agencies other than the Attorney
General are prohibited from employing legal counsel or incurring an expense or a debt for
legal services. A.R.S. § 41-192(E). The following agencies are exempt from this
prohibition: the Residential Utility Consumer Office, the Director of Water Resources, the
Industrial Commission, the Arizona Board of Regents, Corporation Commissioners and the
Corporation Commission (other than its Securities Division), the Office of the State
Treasurer, the Governor's Office, the Arizona Health Care Cost Containment System
Administration, the Auditor General, the Arizona Commerce Authority, and the Arizona
Power Authority in federal agency and court matters. See A.R.S. §§ 15-1626(A)(12),
36-2903(N), 40-106, 41-192(E), 41-192.01.
If the Attorney General determines that the Attorney General's Office is disqualified
from providing legal representation or services to any state agency on any matter, the
Attorney General must notify the state agency in writing of his or her determination. A.R.S.
§ 41-192(F). Upon receipt of such notice, the agency "is authorized to make expenditures
and incur indebtedness to employ attorneys to provide the representation or services" that
the Attorney General is disqualified from providing. Id.
The Attorney General is required to provide legal services to certain agencies and
departments. Compensation for such services is charged against the appropriations to that
department or agency. See, e.g., A.R.S. § 28-333. Other agencies and departments are
authorized to employ and pay for legal services with the consent of the Attorney General.
For example, A.R.S. § 38-848(N) provides that the "attorney general or an attorney
approved by the attorney general and paid by the [Public Safety Personnel Retirement
Fund]" shall be the attorney for the fund manager.
1.3.4 General Representation Powers. As a state agency's advisor, the Attorney
General represents the agency in both administrative and judicial proceedings concerning
the enforcement of the agency's statutes, rules, and orders. As the chief legal officer of the
State, the Attorney General is required to prosecute and defend in the Arizona Supreme
Court "all proceedings in which the state or an officer thereof in his official capacity is a
party." A.R.S. § 41-193(A)(1). In addition, the Attorney General, "[a]t the direction of the
governor or when deemed necessary by the attorney general," is required to prosecute and
1−3 Revised 2011
defend "any proceeding in a state court other than the [Arizona] supreme court in which the
state or an officer thereof is a party or has an interest." A.R.S. § 41-193(A)(2). The
Attorney General also has the duty to "[r]epresent the state in any action in a federal court."
A.R.S. § 41-193(A)(3).
Under certain circumstances, the Attorney General represents political subdivisions
of the State. The Attorney General represents school districts, governing boards of school
districts, and fire districts in lawsuits in which a conflict of interest between county offices
exists. See A.R.S. §§ 41-192(A)(4), -192.02(B). The Attorney General also represents
"political subdivisions, school districts and municipalities in suits to enforce state or federal
statutes pertaining to antitrust, restraint of trade or price-fixing activities or conspiracies."
A.R.S. § 41-192(A)(5).
1.3.5 Representation of Individual Officers and Employees in Civil Actions.
The Attorney General may, in his or her discretion, represent a state officer or employee
against whom a civil action is brought in . . . [the state officer's
or employee's] individual capacity until . . . it is established as a
matter of law that the alleged activity or events which form the
basis of the complaint were not performed, or not directed to
be performed, within the scope or course of the officer's or
employee's duty or employment.
A.R.S. § 41-192.02(A). See Chapter 13 for a more detailed discussion of the liability of
state officers, agents, and employees, and the Attorney General's role in handling claims
and lawsuits involving state officers, agents, and employees.
1.3.6 Power to Settle Claims and Lawsuits Against the State and Boards,
Commissions, and Agencies of the State. The procedure for settling claims for
damages against the State or any state officer, department, board, or agency is
determined by the amount of the proposed settlement. Claims for damages up to $25,000,
or such higher limit as the Joint Legislative Budget Committee may establish, may be
settled with the approval of the Director of the Department of Administration ("DOA").
A.R.S. § 41-621(N). The Joint Legislative Budget Committee has authorized the DOA
Director to approve settlements up to $100,000. Claims between $100,000 and $250,000
may be settled with the approval of the Director of DOA and the Attorney General. Claims
over $250,000 may be settled with the approval of the Director of DOA, the Attorney
General, and the Joint Legislative Budget Committee. Joint Legislative Budget Committee
Rules and Regulations, Rule 14.1(A). State departments, agencies, boards, commissions,
officers, agents, or employees may not voluntarily make any payment, assume any
obligation, incur any expense, or maintain the individual right of consent for liability claims.
A.R.S. § 41-621(N). See Section 13.5.3. See Chapter 13 for a more detailed description
of the State's self-insurance program and the role of the Attorney General in that program.
1−4 Revised 2011
The Attorney General is authorized to settle other claims not involving liability
self-insurance with the approval of the governor or the department, board, or agency
involved. A.R.S. § 41-192(B)(4).
1.3.7 Powers and Duties Relating to County Attorneys. The Attorney General is
required to represent school districts, the governing boards of school districts, and fire
districts if the county attorney has a conflict of interest that precludes or renders
inappropriate continued representation by the county attorney. A.R.S. §§ 41-192(A)(4), -
192.02(B). In addition, the Attorney General may "exercise supervisory powers over
county attorneys . . . in matters pertaining to that office" and shall, "[a]t the direction of the
governor, or when deemed necessary, assist [a] county attorney . . . in the discharge of the
county attorney’s duties." A.R.S. § 41-193(A)(4), (5). Finally, the Attorney General must
concur in, revise, or decline to review education opinions issued by county attorneys or
their designates. A.R.S. § 15-253(B). See Section 1.5.4.
1.3.8 Opinion-Writing Authority. The Attorney General is authorized to render a
written opinion "[u]pon demand by the legislature, or either house or any member thereof,
any public officer of the state, or a county attorney, . . . upon any question of law relating to
their offices." A.R.S. § 41-193(A)(7). See Section 1.5 for a discussion of Attorney General
opinions.
1.3.9 Power to Approve Administrative Rules. The Attorney General is required
to review and authorized to approve emergency rules and rules proposed by a State
agency that are exempt from review by the Governor's Regulatory Review Council. A.R.S.
§§ 41-1026, -1044. See Section 1.6 of this Chapter describing the Attorney General's role
in rule making and Chapter 11 for detailed discussions on the procedures for adopting
rules.
1.3.10 Authority to Approve Bonds. The Attorney General is required to review
and authorized to approve various forms of government bonds. See, e.g., A.R.S. § 9-534
(municipal bonds); A.R.S. § 15-1489 (education bonds); A.R.S. § 28-7514 (transportation
bonds); A.R.S. § 30-227(F) (Arizona Power Authority bonds); and A.R.S. § 36-1414
(housing bonds). Because the Attorney General often plays a role in the issuance of
bonds, an agency should consult with the Attorney General’s Office.
1.3.11 Power to Enforce Criminal Laws. The Attorney General is required to
present evidence of criminal conduct to a magistrate or to the State Grand Jury and to
prosecute all charges issued by a magistrate and all indictments returned by the State
Grand Jury. A.R.S. §§ 21-424, - 427(B). Generally, the State Grand Jury and the
Attorney General have jurisdiction over white collar crime, organized crime, public
corruption, certain crimes involving the use of computers, and crimes that occur in more
than one county. See A.R.S. § 21-422(B) for an enumeration of the offenses under the
jurisdiction of the State Grand Jury. Agencies should refer any matters that might involve
criminal conduct within the jurisdiction of the State Grand Jury to the Attorney General's
1−5 Revised 2011
Office. In addition, criminal wrongdoing "that is referred in writing by a county attorney and
that is accepted in writing by the attorney general" is within the jurisdiction of the State
Grand Jury. A.R.S. § 21-422(B)(7).
The Attorney General also investigates and prosecutes violations of the State's
Racketeering Act, A.R.S. §§ 13-2301 to -2323. The Racketeering Act defines racketeering
as acts punishable by imprisonment for more than one year, and either constituting
terrorism, animal terrorism or ecological terrorism or certain acts committed for financial
gain, including homicide, robbery, kidnapping, forgery, bribery, gambling, usury, extortion,
obstructing justice, false claims or statements, securities or land fraud, money laundering,
the sexual exploitation of children and other listed activities. A.R.S. § 13-2301(D)(4)(a)-(b).
The Act provides criminal penalties and civil remedies for controlling any business either
with racketeering proceeds or through racketeering activity, and for conducting a business
through racketeering activity. A.R.S. §§ 13-2312, -2314. The Attorney General is
authorized to obtain injunctive relief, disgorgement, divestiture, damages, and other civil
remedies against persons engaged in racketeering. A.R.S. § 13-2314. Any agency that
discovers conduct that falls within the Racketeering Act should report that conduct to the
Attorney General's Office.
The Attorney General also is required to notify the respective county attorneys of state
grand jury investigations and proposed indictments affecting such counties, and must
inform the appropriate prosecutorial authority of any offenses discovered by the State
Grand Jury for which it lacks jurisdiction to indict. A.R.S. §§ 21-422(C), -426. In addition to
those offenses provided in A.R.S. § 21-422, the Attorney General may or must:
A. Prosecute offenses arising out of the operation of the Arizona State Lottery.
A.R.S. § 5-512.01(A).
B. Prosecute offenses arising out of the operation of a discount buyer's
organization or service. A.R.S. §§ 44-1797.20.
C. Prosecute violations of the State's employment security program. A.R.S.
§ 23-656(B).
D. Prosecute violations of the State's workers' compensation program. A.R.S.
§ 23-929.
E. Prosecute offenses involving securities. A.R.S. § 44-2032(5).
F. Prosecute offenses arising out of any program administered by the
Department of Economic Security. A.R.S. § 41-1963.
G. Prosecute offenses arising out of the administration of the tax laws under
Titles 42 and 43 or gambling. A.R.S. § 21-422(B)(1), (2).
1−6 Revised 2011
H. Prosecute offenses related to the operation of pyramid schemes. A.R.S.
§ 44-1732.
I. Prosecute environmental crimes. A.R.S. §§ 49-263(F), -925(C).
J. Prosecute violations of state bidding and purchasing laws. A.R.S.
§§ 34-258, 41-2616(D).
K. Prosecute offenses under Title 16 involving any election for state office,
members of the legislature, justices of the supreme court, judges of the court
of appeals, or statewide initiative or referendum. A.R.S. § 16-1021.
L. Recover fines levied for violations of the picketing and secondary boycott
laws. A.R.S. § 23-1324(C).
M. Prosecute healthcare kickbacks and related frauds. A.R.S. § 13-3713(G).
N. Enforce laws related to conflicts of interest, A.R.S. §§ 38-501 to -511, and
financial disclosure by public officers, A.R.S. §§ 38-541 to -545. See A.R.S.
§ 21-422(B).
O. Investigate campaign contribution limitation violation complaints for criminal
or civil action. A.R.S. § 16-905(K).
P. Investigate and prosecute offenses related to lobbying and gifts to public
officials. A.R.S. § 41-1237(B).
Q. Prosecute offenses relating to county, community college, and school district
audits. A.R.S. § 41-1279.22(D).
R. Prosecute violations of the welfare laws. A.R.S. § 46-133.
S. Prosecute violations of the insurance laws. A.R.S. § 20-152.
T. Prosecute violations of state law regarding foreclosure consultants. A.R.S.
§ 44-1378.07.
U. Prosecute violations of pure food provisions. A.R.S. § 36-912.
V. Take action to abate nuisances. A.R.S. §§ 12-991, -998, 13-2917.
1.3.12 Power to Enforce the Consumer Fraud Act. The Attorney General
enforces the Consumer Fraud Act, A.R.S. §§ 44-1521 to -1534. This Act makes it unlawful
to engage in fraudulent or deceptive practices in the advertisement or sale of any
merchandise or service. A.R.S. § 44-1522(A). The Attorney General may obtain injunctive
1−7 Revised 2011
relief, restitution, and civil penalties against any person found to be in violation of the Act.
A.R.S. §§ 44-1528, -1531.
As part of the Attorney General's investigative efforts under the Consumer Fraud
Act, the Attorney General's Office receives and processes thousands of written complaints
from consumers each year. In processing these complaints, the Attorney General's Office
encourages cooperation from the relevant agencies and urges them to resolve complaints
within their jurisdiction. If a complaint falls within the jurisdiction of a particular state
regulatory agency and can best be resolved by that agency (for example, a complaint of
poor workmanship against a contractor licensed by the Registrar of Contractors), the
Consumer Protection and Advocacy Section will refer the complaint to that agency. On the
other hand, if an agency receives a complaint involving fraudulent or deceptive practices
that does not fall within the agency's jurisdiction or that the agency lacks the means to
resolve, the agency should refer the complaint to the Consumer Protection and Advocacy
Section of the Attorney General's Office. However, even when an agency is able to pursue
a particular matter, it should send two copies of the complaint involving fraud or deception
to the Consumer Protection and Advocacy Section.
1.3.13 Power to Enforce the State Antitrust Act. The Attorney General has the
authority to enforce the provisions of the Arizona Uniform State Antitrust Act, A.R.S.
§§ 44-1401 to -1416. A.R.S. § 44-1407. Private parties may also enforce the Act through
private litigation. A.R.S. § 44-1408(B). The Antitrust Act prohibits conspiracies and
agreements in restraint of trade or commerce; conspiracies and agreements to
monopolize; the establishment, maintenance, or use of a monopoly; and attempts to
monopolize. A.R.S. §§ 44-1402.
Because the State and its agencies are subject to the Antitrust Act, government
employees should be aware that their actions may be subject to its provisions. See A.R.S.
§ 44-1416. State officials routinely enter into agreements and take actions that affect trade
and commerce. Only in certain circumstances are state officers immune from antitrust
prosecution. See Sections 5.9.9 and 5.9.6.1. Chapter 5 (Procurement) contains the most
extensive overview of antitrust law and should be reviewed by agency personnel who may
become involved in competition issues.
Any person who serves a complaint, counterclaim, or answer in an action alleging
an antitrust violation must also serve a copy of the pleading on the Attorney General.
A.R.S. § 44-1415(A). In addition, if any special action or appeal is filed involving an
antitrust issue, a notice of the action must be served on the Attorney General. A.R.S. § 44-
1415(B). The Attorney General may appear in any civil action or proceeding before any
Arizona court, agency, board, or commission in which antitrust matters appear to be at
issue. A.R.S. § 44-1415(C). If an agency believes that a matter may involve an antitrust
issue, the agency should advise the Attorney General's Economic Competition Unit.
1.3.14 Power to Enforce the State Civil Rights Act. The Attorney General is
required to enforce the Arizona Civil Rights Act, A.R.S. §§ 41-1401 to -1493.03. A.R.S.
1−8 Revised 2011
§§ 41-192(A)(7), -1401. This includes violations of civil rights in voting, A.R.S. § 41-1421,
public accommodations, A.R.S. §§ 41-1441 to -1442, employment, A.R.S. §§ 41-1461 to
-1468, and housing, A.R.S. §§ 41-1491 to -1491.37. These laws prohibit discrimination
against individuals based on race, color, national origin, religion, sex, age, and disability.
See, e.g., A.R.S. §§ 41-1421, -1442(A), -1463. The Attorney General also enforces state
laws (modeled after the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12100-
12213, 47 U.S.C. §§ 225 and -611) and the ADA amendments act of 2008 (P.L. 110-321;
122 Stat. 3553) that prohibit discrimination against persons with disabilities in public
accommodations, services, and public transportation. A.R.S. §§ 41-1492 to -1492.12.
These statutes generally provide that the Attorney General must investigate
violations of an individual's civil rights in these areas upon the receipt of a written
complaint. A.R.S. §§ 41-1471(A), -1481(B), -1491.22, -1492.09. If the Attorney General
determines there is reasonable cause to believe that the charge is true, the Department
must attempt to correct the violation by means of conference, conciliation, or persuasion.
A.R.S. §§ 41-1471(C), -1491.26. In certain situations, the Attorney General may initiate a
lawsuit to correct the violation or authorize the charging party to file such a suit. A.R.S.
§§ 41-1471(D) and (E), -1481(D) and (E), -1491.27. See Chapter 3 regarding personnel
and Chapter 15 regarding discrimination law.
1.3.15 Power to Collect Debts. Pursuant to A.R.S. §§ 41-191(E), -191.03, and
-191.04, the Attorney General has the power to initiate legal action to collect debts owed to
the State or to any agency, board, commission, or department of the State. The Attorney
General's debt collection program is supported by a collection enforcement revolving fund.
A.R.S. § 41-191.03. The collection program is administered by the Bankruptcy and
Collection Enforcement Section of the Agency Counsel Division.
1.3.16 Power to Enforce the Arizona Open Meeting Law. The Attorney General
enforces the Open Meeting Law, A.R.S. §§ 38-431 to -431.09. A.R.S. § 38-431.07(A).
The requirements of the Open Meeting Law are described in Chapter 7.
1.3.17 Power to Enforce Arizona Immigration Related Statutes. The Attorney
general is given powers and responsibilities related to immigration. For example, state
statute bars the employment of unauthorized aliens and provides penalties for the knowing,
A.R.S. § 23-212, or intentional, A.R.S. § 23-212.01, employment of such persons. The
attorney general must provide a complaint form for complaints relating to the employment
of an unauthorized alien. A.R.S. §§ 23-212(B); -212.01(B). When such a complaint is
received, the Attorney General must investigate. Id. The Attorney General has discretion
to investigate where the prescribed form is not used. Id. The claim form is available on the
Attorney General’s website, http://www.azag.gov/LegalAZWorkersAct/LegalAzWorkers
Complaint.pdf. During the initial investigation, the attorney general “shall verify the work
authorization of the alleged unauthorized alien with the federal government pursuant to
[federal law].” A.R.S. §§ 23-212(B), -212.01(B).
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If the Attorney General determines that a complaint is not “false and frivolous,” he or
she must notify both the federal government and local law enforcement of the unauthorized
alien. A.R.S. §§ 23-212(C), -212.01(C). The Attorney General must also notify the
appropriate county attorney to bring an action under the statute. A.R.S. §§ 23-212(C),
-212.01(C). The Attorney General is also required to maintain court orders received from
actions under the statute and maintain a database of employers and business locations
where a first violation of § 23-212(A) or § 23-212.01(A) occurred. A.R.S. § 23-212(G),
-212.01(G). Court orders must be made available on the Attorney General’s website. Id.
A challenge to the state’s statute is pending at the U.S. Supreme Court (as of 3.7.11). See
Docket, http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/09-115.htm.
The Attorney General is also responsible for enforcing the prohibition against the
unauthorized practice of immigration and nationality law. A.R.S. §§ 12-2703, -2704.
1.3.18 Miscellaneous Powers and Duties. The Attorney General may release
State liens on real estate, A.R.S. § 33-724(C); bring actions to enjoin the illegal payment of
public monies or to recover state money illegally paid, A.R.S. § 35-212(A); approve
interstate agricultural and horticultural agreements, A.R.S. § 3-221(B); seek dissolution of
corporations, A.R.S. § 10-1430(A); seek quo warranto writs against persons improperly
holding public office, A.R.S. § 12-2041; seek state court enforcement of state statutes
challenged in federal court, A.R.S. § 12-932(A); investigate extradition cases at the request
of the governor, A.R.S. § 13-3844; handle quiet title actions, A.R.S. § 12-1101(B); register
persons who conduct amusement gambling events, A.R.S. § 13-3311; and authorize
emergency interceptions of wire, electronic, or oral communications, A.R.S. § 13-3015(A).
1.4 Role of the Attorney General in Representing and Advising State
Administrative Agencies, Public Officers, and Employees.
1.4.1 Administrative Agencies. The Attorney General, as the State's chief legal
officer, is responsible for safeguarding the interests of the State and its agencies. He or
she is charged with the duty of coordinating the legal affairs of a multitude of clients, each
of which is responsible to the public. In addition, the Attorney General, as a constitutional
officer and elected official, is also entrusted with the duty to protect the public interest and
defend the state constitution.
The statutory powers and duties of the Attorney General that form the basis for
representing and advising state agencies are set forth in Section 1.3.
Although more than one Assistant Attorney General may provide legal services to an
agency, one assistant is usually assigned primary responsibility for furnishing the services.
Any legal questions that an agency has should be first addressed to this attorney. If he or
she is unavailable, the agency should consult the chief counsel of the division or section in
which the primary attorney works. All requests for legal assistance should come through
the head of the agency, his or her immediate assistant, or an individual designated by the
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agency head to request legal assistance. Requests from individuals other than these
persons may be denied.
The Attorney General's role in most civil matters is to give legal advice. Once advice
is rendered, the Attorney General's role in the decision-making process is completed. The
Attorney General will also assist the agency to varying degrees by providing legal advice
and representation in adjudicatory proceedings, licensing matters, rule-making
proceedings, enforcement proceedings, and employee disciplinary matters. The Assistant
Attorney General assigned to an agency will not perform administrative duties, maintain
agency records, decide matters of policy, or make the decisions that the law requires the
agency to make. A more detailed discussion of the Attorney General's role in representing
and advising state agencies, public officers, and employees is set forth in Section 1.9. In
setting priorities for the many requests for legal assistance that it receives from agencies,
the Attorney General's Office considers the importance of the request, its bearing upon the
Attorney General's obligation to the agency concerned, and its need for attention compared
to other agencies' needs.
Because the Attorney General is elected by the people of this State, he or she has,
in addition to the obligation to provide legal representation to state agencies, an obligation
to the people of the State to ensure that the laws governing state agencies are carried out
in a manner that is consistent with the legislature's intent. The Attorney General is
responsible for ensuring that the laws the legislature has enacted are enforced. The
Attorney General's resources are not available to help any agency avoid duties,
obligations, and laws. If an agency disagrees with the laws within its jurisdiction, it should
seek a legislative change because the legislature is the proper body to address changes,
alterations, or modifications to laws.
1.4.2 Public Officers and Employees. The Attorney General can render legal
advice only on matters relating to a public officer's or employee's public duty or
employment. The Attorney General cannot give legal advice to public officers or
employees on legal problems pertaining to personal matters resulting from conduct outside
the scope of their employment, appointment, or election.
The Attorney General is charged with investigating public corruption and other illegal
activities that may involve public officers or employees. Consequently, the Attorney
General will not represent officers or employees accused of these activities and will
vigorously investigate and prosecute any public officer or employee engaged in illegal
activity. A more detailed discussion of the Attorney General's role in representing and
advising state agencies, public officers, and employees is set forth in Sections 1.9 to
1.9.6.2.
1.4.3 Legal Assistance to Members of the Public. The Attorney General is not
authorized to render legal advice or provide representation to members of the public. The
Attorney General cannot engage "directly or indirectly . . . in the private practice of law."
A.R.S. § 41-191(B).
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1.4.4 Legislative Representation for Public Officers and Employees. If an
agency head determines that legislation needs to be enacted, he or she should seek
assistance and guidance from the Legislative Council, either directly or through an
interested member of the legislature. The agency should also notify the Assistant Attorney
General assigned to that agency of any proposed legislation. The Attorney General may
provide guidance and advice to agencies regarding proposed legislation. If necessary and
appropriate, a representative of the Attorney General's Office can appear with an agency
representative before legislative committees regarding proposed legislation. However, the
Attorney General will not act as a lobbyist for state agencies.
1.5 Role of the Attorney General in Issuing Legal Opinions.
1.5.1 Authority to Issue Opinions. The Attorney General is authorized to provide
a written opinion on selected issues when requested to do so by the legislature, the house
of representatives, the state senate, any state legislator, any public officer of the State, or a
county attorney. A.R.S. § 41-193(A)(7). Opinions must address a question of law relating
to the office of the person requesting the opinion. Id. All official opinions of the Attorney
General are rendered in writing. Id. The Attorney General is required to distribute a copy
of each opinion to the governor, the president of the senate, the speaker of the house, the
secretary of the senate, the chief clerk of the house, and any department or agency
required to perform a function necessary to implement the opinion. A.R.S. § 41-194(A).
Pursuant to A.R.S. § 38-507, requests for opinions concerning violations of Title 38,
Chapter 3, Article 8 (conflicts of interest) are confidential, but once the opinion issues, it is
a matter of public record and therefore must be made available to the public. A.R.S.
§ 41-194(A). Other opinion requests not covered by a specific grant of confidentiality are
considered public records and are made available to the public, if requested.
1.5.2 Request Procedure. Written opinions will be issued only upon the written
request of a party entitled to receive an opinion. Requests for opinions should be directed
to the Attorney General personally. Requests for opinions from a state agency must be
signed by the agency director. After a proper request is received, a draft opinion will be
prepared, and, upon the Attorney General's review and concurrence, the Attorney General
will issue the opinion to the requesting party.
Upon receipt, every opinion request is assigned a number for reference (an "R"
number, e.g., R99-001). This number is used for identification and for tracking the request.
After an opinion has been issued, it is given an issue number (an "I" number, e.g.,
I99-001) by which it is permanently filed.
1.5.3 Scope of Opinions. Only formal written opinions signed by the Attorney
General are official opinions of the Attorney General. See A.R.S. § 41-193(A)(7). This
does not mean, however, that an agency cannot rely on advice from the attorney assigned
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to represent the agency; it merely means that such advice is not to be construed as the
official opinion of the Attorney General.
Formal opinions are issued on questions of law relating to the official duties of the
requesting party. The Attorney General does not issue all opinions that are requested.
Generally, opinions will not be issued regarding (1) matters pending before a court, Ariz.
Att'y Gen. Op. I81-137; but see Ariz. Att'y Gen. Op. I91-002; (2) the constitutionality of
legislation enacted by the Arizona legislature except in cases where a compelling need for
such an opinion exists, Ariz. Att'y Gen. Op. I95-14; (3) legal questions from constituents or
third parties, Ariz. Att'y Gen. Ops. I78-81, -83; or (4) the constitutionality of proposed
legislation.
Opinions of the Attorney General are advisory and do not have the same effect as
decisions of a court of law. See Ruiz v. Hull, 191 Ariz. 441, 449, 957 P.2d 984, 992 (1998);
Green v. Osborne, 157 Ariz. 363, 365, 758 P.2d 138, 140 (1988); see also Marston's Inc.
v. Roman Catholic Church, 132 Ariz. 90, 94, 644 P.2d 244, 248 (1982). However, no
public officer is personally liable for acts done in his or her official capacity in good faith
reliance on a formal Attorney General Opinion. A.R.S. § 38-446. Arizona courts will not
review the legal interpretation determined by the Attorney General, nor will the courts order
its withdrawal. Yes on Prop 200 v. Napolitano, 215 Ariz. 458, 465-66, 160 P.3d 1216,
1223-24 (App. 2007). The Attorney General is not obligated “to render any particular
advice to any government official absent a request by that official.” Id. at 467, 160 P.3d at
1225.
1.5.4 Education Opinions. The Attorney General, within sixty days of receipt,
must concur in, revise, or decline to review opinions of county attorneys, or attorneys
appointed with the consent of the county attorney, "relating to school matters" or issued to
a community college district. A.R.S. §§ 15-253(B), -1448(H). The Attorney General has
the authority only to review education opinions and does not accept opinion requests
directly from school district governing boards. Ariz. Att'y Gen. Op. I80-059. Governing
board members are not personally liable for acts done in reliance on a written opinion that
the Attorney General concurs with, declines to review, or revises. A.R.S. § 15-381(B).
1.5.5 Opinion Summaries. Summaries of Attorney General opinions are
published by the Secretary of State in the Administrative Register. A.R.S. § 41-1013(B)(4).
1.6 Role of the Attorney General in the Adoption of Administrative Rules.
The Attorney General does not prepare rules for state agencies. That is the responsibility
of each agency. See Yes on Prop 200, 215 Ariz. at 467, 160 P.3d at 1225 (“Nor does the
Attorney General have the ability, let alone the duty, to compel other state agencies or
departments to make rules or regulations in connection with their operations.”). The
Attorney General will advise the agency on the proper procedures to follow in promulgating
rules and informally review draft rules to identify obvious legal defects or problems.
However, the Attorney General may occasionally suggest the adoption of rules by an
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agency because of pending litigation, legislation affecting all state agencies, or issues of
statewide application.
The Attorney General is statutorily required to formally review and approve rules in
two situations: (1) when an agency wishes to adopt emergency rules under A.R.S. § 41-
1026; and (2) when a rule is expressly exempted from the normal rule-making process by
A.R.S. § 41-1057. See A.R.S. § 41-1044. Chapter 11 provides a detailed explanation of
the procedure for adopting, amending, or repealing rules.
1.7 Role of the Attorney General in Approving Contracts, Leases, and
Intergovernmental Agreements.
1.7.1 Contracts and Leases. Section 41-192(A)(1) establishes that the Attorney
General shall “[b]e the legal advisor of the departments of this state and render such legal
services as the departments require.” Therefore, the Attorney General may review
contracts and leases at the request of any state agency.
Because many state agencies often use form contracts, the Attorney General
should review these forms frequently to ensure that they comply with changing legal
requirements. Often, it is necessary to draft an original agreement in order to address a
new situation. In these instances, the agency should consult the Attorney General to
protect it from unexpected liability or a waiver of rights due to a poorly drafted contract.
In addition, the constitution, statutes, and case law require or suggest that certain
provisions be contained in all state contracts and leases. First, A.R.S. §§ 35-214 requires
the contractor to retain all books, data, and other records relating to the contract for a
period of five years after completion of the contract. A.R.S. §§ 35-214 also requires
language regarding retention and inspection of the contract records. Second, A.R.S. § 38-
511 authorizes the cancellation of any contract made on behalf of the State or any of its
departments or agencies if any person significantly involved in initiating, negotiating,
securing, drafting, or creating the contract becomes an employee or agent for any other
party to the contract during the period of time the contract or any extension of the contract
is in effect. Similarly, if a person becomes a consultant to another party “with respect to
the subject matter of the contract” it may be cancelled. Id.; see also Ariz. Att’y Op. I08-10.
Next, nondiscrimination language is mandatory in government contracts. See Executive
Order 2009-09, http://www.azgovernor.gov/dms/upload/EO_2009_09.pdf at 1-2. It is also
important that all contracts and leases contain a clause that states that in the absence of
specific legislative authority, such as nonlapsing appropriations or revolving funds, every
payment obligation of the State under the contract is conditioned upon the availability of
funds appropriated or allocated for the payment of such obligation. A provision outlining
that the contract or lease is governed by the laws of the State of Arizona, including the
Arizona Procurement Code, A.R.S. §§ 41-2501 to 41-2673, and the administrative rules
promulgated thereunder, A.A.C. R2-7-101 to 2-7-1301, is also essential to all contracts and
leases. Additional contract requirements include a certification that a contractor does not
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have a “scrutinized business operation” in Sudan or Iran, A.R.S. §§ 35-391.06, -393.06,
and warranties that the contractor is in compliance with all federal employment immigration
laws and regulations, and is compliant with A.R.S. § 23-214(A), which mandates
participation in the federal e-verify program.
The Attorney General should also review contracts and leases to determine if
provisions regarding third-party antitrust violations and arbitration are necessary. A.R.S.
§ 12-1518. An addendum containing all of the statutorily required provisions should be
kept on file.
The Assistant Attorney General assigned to represent an agency, or the chief
counsel of the Administrative Law Section, should be consulted regarding review or
drafting of major contracts and leases. Agencies are strongly encouraged to seek the
assistance of the Attorney General in the early phases of significant contract procurements
to avert potential problems. Upon review of the contract or lease, the Assistant Attorney
General will sign a document stating that the agreement has been approved as to form.
Unless a contract or lease is exempt from review under A.R.S. § 41-790.01, the
Department of Administration must review all architectural, engineering, and construction
contracts before they are submitted to the Attorney General. A.R.S. § 41-791.01(A)(1).
Consequently, the Attorney General will decline to review any contracts or leases that have
not been reviewed by the Department of Administration, unless they are exempt from such
review under A.R.S. § 41-790.01. All lease purchase agreements relating to land
acquisition, capital projects, energy systems, or energy management systems should be
submitted to the Attorney General for review to ensure that all the requirements of A.R.S.
§ 41-791.02(B) are provided for in the agreement. A.R.S. § 41-791.02 (D). Upon review,
the Assistant Attorney General will sign a document stating that the agreement has been
approved as to form.
Other statutes similarly require that certain agreements be reviewed by the Attorney
General. See, e.g., A.R.S. §§ 15-2004(I)(4) (school facilities board lease purchase
agreements); 41-1609(C) (contracts between Department of Corrections and federal and
other state government agencies to accept and deliver inmates or administer corrections
programs); 41-1958 (Department of Economic Security leases, lease-purchases and
purchases of office space), 41-2813(C) (juvenile corrections contracts with other
institutions for certain services).
Expenditures that are subject to the procurement code are explained in detail in
Chapter 5.
1.7.2 Intergovernmental Agreements. Intergovernmental agreements are
defined as contracts between two or more public agencies or public procurement units for
services or for the joint exercise of any powers common to the agencies. A.R.S. § 11-952.
The agencies may enter into agreements with one another for joint or cooperative action or
may form a separate legal entity such as a nonprofit corporation. A.R.S. § 11-952(A).
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Public agencies are defined to include “the federal government or any federal department
or agency, Indian tribe, this state, any other state, all departments, agencies, boards, and
commissions of this state or any other state, counties, school districts, cities, towns, all
municipal corporations, and any other political subdivisions of this state or any other state.”
A.R.S. § 11-951. Public procurement units are defined as “a local public procurement unit,
the department [of Administration], any other state or an agency of the United States.”
A.R.S. § 41-2631(4). Local procurement units are political subdivisions, their agencies,
boards and departments or other instrumentalities, and “nonprofit corporation[s] created
solely for the purpose of administering a cooperative purchase under” the state
procurement code. A.R.S. § 41-2631(2).
Intergovernmental agreements are controlled by A.R.S. §§ 11-951 to -954. It is
important to note that except for the right of joint exercise of powers granted in these
statutes, no additional authority or power is conferred upon any public agency by way of
the statutes controlling intergovernmental agreements. A.R.S. § 11-954. In other words,
the statutes merely detail the method of entering into intergovernmental agreements and
do not give any agency independent authority to act. Moreover, no intergovernmental
agreement will relieve any public agency of any obligation or responsibility imposed upon it
by law. A.R.S. § 11-952(C). In Myers v. City of Tempe, the Arizona Supreme Court
assumed, without deciding, that one city’s fire department acting pursuant to an
intergovernmental agreement could be considered an independent contractor of another
city, but concluded that absent a duty imposed by the common law or a “statute, regulation,
contract, franchise, or charter,” the contracting city could delegate its duty to the other city’s
fire department. 212 Ariz. 128, 132-33, 128 P.3d at 755-56.
Intergovernmental agreements apply only to agreements involving the joint exercise
of powers common to the contracting public agencies. A.R.S. § 11-952(A). Thus, when
two public agencies enter into an agreement for joint action, each agency must have the
power to perform the action contemplated in the contract. See Ariz. Att’y Gen. Ops. I86-
084, I83-057. Therefore, where there is no joint exercise of powers common to the public
agencies involved, there is no intergovernmental agreement and the statutory requirements
of such do not apply. This will generally include the furnishing of services by one agency to
another.
Prior to its execution, every intergovernmental agreement involving any public
agency, board, commission, or public procurement unit is required to be submitted to the
attorney of each agency or unit for review. A.R.S. § 11-952(D). When such an agreement
is submitted, the Attorney General will determine “whether the agreement is in proper form
and is within the powers and authority granted under the laws of this state to such public
agency or public procurement unit.” Id. Thus, the agency should submit the
intergovernmental agreement to the Attorney General for review before it is signed. The
agency should also submit to the Attorney General copies of the agency’s action, by
resolution or otherwise, that authorizes the future execution (signing) of the agreement.
The Attorney General should receive an adequate amount of time to examine the copies of
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the intergovernmental agreement and agency action in order to have an opportunity to
review and propose necessary changes to the agreement.
The following is a checklist of the items the Attorney General requires for approval of
intergovernmental agreements. Each agreement must:
A. Identify each public agency that is a contracting party by correct statutory title
and indicate whether it is a state, town, or other public or municipal agency or
instrumentality.
B. State in the recitals, or elsewhere in the agreement, the exact statutory
references under which each contracting party is authorized to exercise the
powers described in or required by the contract.
C. State the duration of the contract, preferably by specifying the beginning date
and the ending date of the obligations.
D. State the purpose or purposes to be accomplished.
E. State the manner of financing the undertaking and, where applicable, the
manner of establishing and maintaining a budget.
F. State the method or means of partial or complete termination.
G. Where property is to be acquired solely to accomplish the purpose or
purposes of the agreement, provide a means for disposing of such property
upon termination or completion of the agreement.
H. If a separate legal entity is formed, the agreement must include the precise
organization, composition, title, and nature of the entity.
The governing board of the contracting agency must authorize the future execution
(signing) of the agreement before it is submitted to the Attorney General. An agency head
or board may not delegate the authority to sign an intergovernmental agreement unless the
agency or board is specifically authorized by statute to delegate its contract-related duties.
Ariz. Att’y Gen. Op. I80-092. Once the agreement is submitted to the Attorney General, the
Attorney General will review it to ensure that the agreement is “in proper form and is within
the powers and authority granted under the laws of this state to such public agency, board,
or commission.” A.R.S. § 11-952(D).
If the Attorney General determines that the agreement is “in proper form and is within
the powers and authority granted” by law, A.R.S. § 11-952(D), this determination will be
noted on the agreement. The Attorney General will then return the documents to the party
who sent them. If the Attorney General determines that the agreement is not in the proper
form or is not within the authority granted by law, all documents will be returned to the party
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who sent them with a letter noting the deficiencies. After the Attorney General has made a
favorable determination, the parties may then execute (sign) the agreement.
1.8 Investigative Services Within the Department of Law. Requests for
investigative assistance from the Attorney General’s Office concerning alleged criminal
misconduct should be directed, in writing, to the chief agent of the Special Investigations
Section or to the requesting agency’s assigned Assistant Attorney General, specifying in
detail the nature and scope of the investigation needed. The chief special agent will
evaluate the request to determine whether the Attorney General's Office is capable of
conducting the investigation and whether it would be appropriate for the Office to do so.
The person requesting the investigation will be notified of this decision.
1.9 Attorney General's Guidelines for Representing State Agencies.
1.9.1 Scope of the Attorney General's Duty to Represent State Agencies.
Article V, section 1, of the Arizona Constitution establishes the Office of Attorney General,
and Article V, section 9, provides that the duties of the Attorney General shall be as
prescribed by law. Thus, the constitution itself does not undertake to describe the duties of
the Office of the Attorney General, but instead assigns that task to the legislature. See
State ex rel. Woods v. Block, 189 Ariz. 269, 272, 942 P.2d 428, 431 (1997).
In carrying out that constitutional mandate, the Legislature has broadly prescribed
the duties of the Attorney General as the "chief legal officer of the state." A.R.S.
§ 41-192(A). The Attorney General's duties are found primarily in A.R.S. §§ 41-192 and
-193. Those statutes mandate that the Attorney General shall, for example, serve as legal
advisor to all state departments, A.R.S. § 41-192(A)(1), protect the civil rights of Arizona's
citizens in accordance with law, A.R.S. § 41-192(A)(7), and prosecute and defend in courts
of the State and the United States all proceedings to which the State or an officer thereof is
a party. A.R.S. § 41-193(A)(1). The legislature has also specifically authorized the
Attorney General to represent the State, its agencies, and its employees. See, e.g., A.R.S.
§ 41-621(M)(requiring Attorney General to represent and defend the State, its agencies
and employees for suits covered by the State's self-insurance program); see also Block,
189 Ariz. at 273-75, 942 P.2d at 432-34 (Attorney General authorized by A.R.S. § 35-212
to challenge any action involving the illegal expenditure of funds in state government and
by A.R.S. § 12-2041 to challenge the legality of any individual's exercise of authority as a
public officer).
With limited specific statutory exceptions, agencies other than the Attorney General
are forbidden from employing legal counsel or spending state monies for legal services.
A.R.S. § 41-192(D). Statutory exceptions have been created for the Director of Water
Resources; the Residential Utility Consumer Office; the Industrial Commission; the Arizona
Board of Regents; the Auditor General; the Corporation Commissioners and the
Corporation Commission (other than its Securities Division); the Governor's Office; the
Constitutional Defense Council; the Office of the State Treasurer; the Arizona Commerce
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Authority; the Arizona Power Authority; the Department of Agriculture, under limited
circumstances; the Arizona Health Care Cost Containment System Administration. See
A.R.S. §§ 15-1626(A)(12), 36-2903(N), 40-106, 41-192(E), -192(G), and -192.01.
Additionally, if for any reason the Attorney General is unable to provide legal
representation or services on behalf of a State agency in relation to any matter, the
Attorney General shall give written notice to the agency affected. Receipt of such notice
authorizes the agency, through the Attorney General, to hire attorneys to provide the
necessary legal services. A.R.S. § 41-192(F).
Even with these exceptions, the Attorney General has a statutory mandate to
perform the vast majority of the legal affairs required by State government. The Attorney
General's broad responsibility to represent State government consists of providing legal
advice to the various constituents that comprise that government entity and through which
the State acts. This includes agencies, departments, officers, and employees acting in
their official capacity when performing their duties of defining, conducting, and carrying out
the public's business in a manner consistent with the constitution and laws of the State. In
this regard, the Attorney General is entrusted with protecting the public's interest while
coordinating the legal affairs of a multitude of State agencies and agents.
Because the Attorney General is the chief legal officer of State government and the
legal advisor to all State agencies and employees, it is inevitable that, from time to time,
the Attorney General is called upon to advise two state agencies that disagree on what the
law is or how to proceed. The Attorney General also may be asked to represent one or
more agencies appearing before another State agency acting as the decision maker, and
also to represent or advise the decision maker. The Attorney General is called upon to
participate as an advocate and also to act as an advisor to a hearing officer or decision
making officer or body of the agency concerning evidentiary and procedural matters that
may arise during the course of a proceeding. The Attorney General may also be required
to originate civil or criminal enforcement actions against public officers for whom the
Attorney General may also serve generally as legal counsel. Finally, the Attorney General
may serve on a board or commission before which the Attorney General's Office is required
to appear as an advocate.
The Arizona Rules of Professional Conduct (Ethical Rules) recognize the unique
and varying roles of government lawyers and provide some general guidance to
government attorneys who must serve diverse interests. For example, the Preamble to the
Ethical Rules states, in part:
Under various legal provisions, including constitutional,
statutory and common law, the responsibilities of government
lawyers may include authority concerning legal matters that
ordinarily reposes in the client in private client-lawyer
relationships. For example, a lawyer for a government agency
may have authority on behalf of the government to decide
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upon settlement or whether to appeal from an adverse
judgment. Such authority in various respects is generally
vested in the attorney general and the state’s attorney in state
government, and their federal counterparts, and the same may
be true of other government law officers. Also, lawyers under
the supervision of these officers may be authorized to
represent several government agencies in intragovernmental
legal controversies in circumstances where a private lawyer
could not represent multiple private clients. They also may
have authority to represent the “public interest” in
circumstances where a private lawyer would not be authorized
to do so. These Rules do not abrogate any such authority.
Ariz. Sup. Ct. R. 42, Scope, ¶ 18 (emphasis added).
The Ethical Rules also recognize that the government lawyer may represent a
particular constituent agency or department, or the government as a whole. This principle
is articulated in the Comment to ER 1.13, which discusses government lawyers' ethical
obligations when an organizational entity is the client:
The duty defined in this Rule applies to governmental
organizations. Defining precisely the identity of the client and
prescribing the resulting obligations of lawyers may be more
difficult in the government context. See Scope [18]. Although
in some circumstances the client may be a specific agency, it
may also be a branch of government, such as the executive
branch, or the government as a whole. For example, if the
action or failure to act involves the head of a bureau, either the
department of which the bureau is a part or the relevant branch
of government may be the client for purposes of this Rule.
Moreover, in a matter involving the conduct of government
officials, a government lawyer may have authority to question
such conduct more extensively than that of a lawyer for a
private organization in similar circumstances. Thus, when the
client is a governmental organization, a different balance may
be appropriate between maintaining confidentiality and
assuring that the wrongful act is prevented or rectified, for
public business is involved. In addition, duties of lawyers
employed by the government or lawyers in military service may
be defined by statutes or regulation. This Rule does not limit
that authority. See Scope. Government lawyers also may
have authority to represent the “public interest” in
circumstances where a private lawyer would not be authorized
to do so.
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Ariz. Sup. Ct. R. 42, ER 1.13, cmt. 9 (emphasis added).
The above factors define the obligations of the Office of the Attorney General.
Representation guidelines based upon these combined resources are presented below.
1.9.2 Attorney General's Representational Role for the State, Its Agencies,
and Employees.
1.9.2.1 Attorney General's Attorney-Client Relationship to the State, its
Agencies, and Employees. As the attorney for the State, the Attorney General serves the
people of Arizona and has the sworn obligation to uphold the State's constitution and laws.
A.R.S. §§ 38-231 to -234. Although the State is a distinct legal entity, it cannot act except
through its officers, employees, and other constituents. Ariz. Sup. Ct. R. 42, ER 1.13 &
cmt. 1.
Those State officials and employees or other constituents are not, however, the
individual clients of the Attorney General. Id. & cmt. 2. An employee's position within the
agency does not create an attorney-client relationship between the employee and the
Office of the Attorney General. If a representative of the Attorney General's Office
provides an employee with legal advice concerning the employee's official duties, the
communication is protected by attorney client confidentiality, but no individual
attorney-client relationship arises between the individual employee and the lawyer. Id.
From time to time, however, the Attorney General may represent individual officers,
employees, or other constituents in specific matters, so long as consent to such
representation is given by an appropriate official of the organization (other than the
individual who is to be represented) and if the individual's interests are not adverse to those
of the organization with regard to the matter in controversy. Id., ER 1.13(g). This is
consistent with A.R.S. § 41-192.02, which gives the Attorney General discretion to
represent an officer or employee of the State against whom a civil action is brought in his
individual capacity for conduct performed within the scope of the officer's or employee's
official duties or employment. When the clients (that is, the State and the public official, or
employee) consent to dual representation, the Attorney General will undertake the
representation as long as a good faith judgment can be made as early as practicable that
no potential or actual conflict of interest exists between the State and the public official or
employee. See Ariz. Sup. Ct. R. 42, ER 1.7. Public officials will be notified in writing of the
Attorney General's decision regarding representation and will be informed that such dual
representation will result in the disclosure to the State of information communicated by the
public official to the Attorney General.
If before undertaking dual representation a good faith judgment cannot be made that
an actual or apparent conflict does not exist, the State will, when appropriate, provide
independent legal counsel to the individual public official or employee.
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1.9.2.2 Attorney-Client Privilege and Waiver of the Privilege. The principle of
lawyer-client confidentiality is given effect by related bodies of law including the attorney-client
privilege and the rule of confidentiality established in professional ethics. Ariz. Sup.
Ct. R. 42, ER 1.6, cmt. 3. The attorney-client privilege is a common law privilege, and in
Arizona is codified in both the civil and criminal contexts. A.R.S. § 12-2234 (civil) and
A.R.S. § 13-4062(2) (criminal). Confidentiality of information relating to the representation
of a client, including communications between a lawyer and a client, is required by ER 1.6.
Agencies, officers, and employees acting lawfully can expect that the Attorney General will
maintain confidential communications. Ariz. Sup. Ct. R. 42, ER 1.6 & Comment 6.
Even where no attorney-client relationship is formed between an assistant attorney
general and a State official, employee, or other organizational constituent, communications
with State officials and employees are covered by ER 1.6 confidentiality, and also are
protected by the attorney-client privilege. See ER 1.13, cmt. 2. Communications between
an attorney for a governmental entity and any employee, agent or member of the entity
regarding acts or omissions of or information obtained from the employee, agent or
member is privileged if the communication is either 1) for the purpose of providing legal
advice to the entity or employer or to the employee, agent or member; or 2) is for the
purpose of obtaining information in order to provide legal advice to the entity or employer or
to the employee, agent or member. A.R.S. § 12-2234. The privilege belongs to the State,
and not the individual. See Samaritan Foundation v. Goodfarb, 176 Ariz. 497, 504, 862
P.2d 870, 877 (1993) (“In the corporate context, the privilege belongs to the corporation
and not the person making the communication.”).
Generally, the State may assert a privilege over communications between a
representative of the Attorney General's Office and the State's officials or employees.
Because the official or employee who obtains legal advice from the State's lawyers on
behalf of the State or agency of the State is not the "client," the privilege belongs to the
State, and no individual attorney-client privilege may be asserted by the employee. Other
situations, however, may arise. The Arizona Court of Appeals has held that where a city
ordinance provided that the city attorney also represents individual city officers in “matters
relating to their official . . . duties,” city council members could assert the privilege. See
State ex rel Thomas v. Schneider, 212 Ariz. 292, 296,130 P.3d 991, 995 (App. 2006).
Section 13-4062(2) does not “exclude communications made to government attorneys that
would otherwise fall within the privilege.” Id. at 297, 130 P.3d at 996.
Neither confidentiality nor conflict of interest per se will prevent disclosure of
communications with the Attorney General when a disclosure is necessary on behalf of the
State as, for example, where the Attorney General is investigating possible violations of the
law. Also, prior communications between a State officer or employee and a lawyer from
the Attorney General's Office do not prevent that lawyer or any other lawyer from the
Attorney General's Office from subsequently cross-examining that person.
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The issues of (1) preserving communications between a public official or employee
and the Attorney General as confidential and (2) asserting or waiving the attorney-client
privilege are to be determined on the basis of the best interests of the State as the
represented client. Ariz. Sup. Ct. R. 42, ER 1.6. Legal communications between the
Attorney General and its agencies and employees regarding official business of the State
should not be disclosed to private parties without prior consultation with the Attorney
General. Failure by an agency and employee to first seek approval of the Attorney General
before disclosing confidential legal communications to third parties can jeopardize the
interests of the State. Furthermore, disclosure of confidential government information also
may violate A.R.S. § 38-504(B), and could subject the employee to penalties. See A.R.S.
§ 38-510.
In all criminal and enforcement matters undertaken by the Attorney General, the
decision to assert or waive the State's privilege will be made by the Attorney General. The
decision in unrelated civil matters whether to assert or waive the privilege should be made
jointly by the Attorney General and the authorized representative of the public agency, if
any, that is directly involved in a particular situation. If no agreement can be reached or a
dispute arises between the Attorney General and the public agency as to the best interests
of the State as a whole, the Attorney General will present the matter to the Governor for
review and resolution.
1.9.2.3 Agency Requests for Actions or Defenses That Are Not Legally
Supportable or Are Interposed for Delay. If an agency, officer, or employee proposes to
pursue an action or maintain a defense that the Attorney General determines is not legally
supportable or has no substantial purpose other than delay, the Attorney General’s Office
will advise the agency of that fact and the Attorney General will not pursue the action or
defense on the agency's behalf. The applicable Ethical Rules, which provide that no
lawyer may assert or controvert an issue where the issue or its defense is frivolous or
otherwise legally unsupportable, preclude the Attorney General from pursuing such claims
or defenses. Ariz. Sup. Ct. R. 42, ER 3.1; see also Ariz. Sup. Ct. R. 41. If an agency,
officer, or employee wishes to pursue an action or maintain a defense that the Attorney
General determines is not legally supportable or has no substantial purpose other than
delay, the agency will not be entitled to public representation on that matter.
1.9.2.4 Adverse Interests Other Than Enforcement Actions. When the Attorney
General has interests adverse to those of another State agency, officer, or employee in a
matter not involving illegal conduct or other enforcement activity (see Section 1.9.2.5), the
Attorney General will not represent the agency or employee on the matter in controversy
but may instead appoint outside counsel to provide representation in the specific matter.
Sections 1.9.5 through 1.9.5.4 provide guidance on retention and control of outside
counsel. The Attorney General will continue, however, to represent the agency or
employee in all other matters, as required by law.
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1.9.2.5 Illegal Activity or Other Action Requiring Enforcement Actions Against
State Officials. Representatives of the Attorney General's Office owe a fiduciary duty to
the State of Arizona as the client and not to an individual official or employee. ER 1.13.
There is, therefore, no inherent conflict of interest for the Attorney General to enforce civil
or criminal laws against State officials. See generally United States v. Troutman, 814 F.2d
1428, 1438-39 (10th Cir. 1987); State v. Klattenhoff, 801 P.2d 548, 552 (Haw. 1990)
(holding that Attorney General “may represent a state employee in civil matters while
investigating and prosecuting him in criminal matters, so long as the staff of the AG can be
assigned in such a manner as to afford independent legal counsel and representation in
the civil matter, and so long as such representation does not result in prejudice in the
criminal matter to the person represented”). Instead, the Attorney General has a duty on
behalf of the State to investigate and take appropriate action if there is any claim of illegal
acts by state officers or employees. See, e.g., Block, 189 Ariz. at 273-75, 942 P.2d at 432-
34 (Attorney General authorized to take action on behalf of State pursuant to A.R.S. § 35-
212 to challenge any action involving the illegal expenditure of funds in state government
and by A.R.S. § 12-2041 to challenge the legality of any individual's exercise of authority as
a public officer); see also Salazar v. Davidson, 79 P.3d 1221, 1231 (Colo. 2003)
(explaining that the Ethical Rules do not bar Attorney General from filing suit against
another executive branch officer because “the Attorney General must consider the broader
institutional concerns of the state”).
The Attorney General may investigate and civilly or criminally prosecute any State
official or employee who has committed or intends to commit an improper or illegal act.
This issue may arise in several contexts. For example, the Attorney General is responsible
for ensuring that the correct individual is holding public office. A.R.S. § 12-2041 (quo
warranto statute). The Attorney General is also responsible for preventing the illegal
payment of State money. A.R.S. § 35-212(A). The Attorney General also enforces the
Open Meeting Law. A.R.S. § 38-431.07(A).
If, in the process of giving legal advice or representing an employee in his or her
official capacity, a representative of the Attorney General's Office discovers that the official
or employee has committed or intends to commit an illegal act or fraud that may materially
injure the State, the lawyer must disclose this to the agency management and may also
testify regarding such improprieties. Ariz. Sup. Ct. R. 42, ER 1.13(b). These principles are
embodied in the Comment to ER 1.13 which, in part, provides:
When one of the constituents of an organizational client [such
as the state or an agency of the state] communicates with the
organization's lawyer in that person's organizational capacity,
the communication is protected by ER 1.6. Thus, by way of
example, if an organizational client requests its lawyer to
investigate allegations of wrongdoing, interviews made in the
course of that investigation between the lawyer and the client's
employees or other constituents are covered by ER 1.6. This
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does not mean, however, that constituents of an organizational
client are the clients of the lawyer. The lawyer may not
disclose to such constituents information relating to the
representation except for disclosures explicitly or impliedly
authorized by the organizational client in order to carry out the
representation or as otherwise permitted by ER 1.6.
Ariz. Sup. Ct. R. 42, ER 1.13, cmt. 2 (emphasis added).
The Attorney General is not authorized to represent or appoint outside counsel for
state entities or employees to defend a purely criminal proceeding. See generally, A.R.S.
§§ 41-192, -192.02 and -193. If a civil action is brought against a State employee in the
employee's individual capacity, the Attorney General has discretion to represent the
employee, but only until such time as it is established as a matter of law that the alleged
activity or events involved were not performed, or directed to be performed, in the course
and scope of the employee's duty or employment. A.R.S. § 41-192.02. Thus, if the
Attorney General is contemplating instituting or has instituted civil or criminal proceedings
against a state agency, public official, or employee, the agency, public official or employee
may not be entitled to public representation, unless such representation is otherwise
expressly allowed by law.
1.9.3 Multiple Representation of State Agencies.
1.9.3.1 Scope of Section. To the extent resources are available, the Attorney
General is obligated to represent all state agencies in all matters. A.R.S § 41-192(A)(1).
The only exceptions are those agencies expressly exempt from such representation by
statute. A.R.S. § 41-192(E). See Section 1.9.1 (listing exempt agencies). In representing
state agencies, the Attorney General must serve several roles, providing advice in non-judicial
proceedings, representation in quasi-judicial proceedings, and representation in
court. The following sections provide guidelines for situations where the Attorney General
is faced with conflicting interests among different agencies in these statutorily mandated
roles.
1.9.3.2 Advice in Non-Judicial Proceedings. When two or more state agencies
have adverse interests and the dispute between the agencies is not part of a pending
judicial or quasi-judicial proceeding, the Assistant Attorneys General representing or
advising the agencies shall consult with the Attorney General, and the Attorney General
shall decide upon the advice to be given to all agencies concerned. This advice may be
communicated orally, in a letter, or by formal Attorney General Opinion. Normally this will
resolve the conflict. If, however, an agency disagrees with the Attorney General's decision,
it may pursue the matter further only when it has the statutory authority to do so. If the
agency needs outside legal counsel, it may obtain such counsel only through the Attorney
General. The principles set forth in Sections 1.9.5 through 1.9.5.4 govern the appointment
of outside counsel.
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1.9.3.3 Quasi-Judicial Proceedings. When a state agency appears as a party
before another state agency in a quasi-judicial proceeding, the agencies may consent to
the continued representation of both by the Attorney General. In that case, the Attorney
General shall continue to represent all consenting agencies. Continued representation of
both agencies will be provided by different Assistant Attorneys General in accordance with
the principles for adjudicatory proceedings identified in Section 1.9.3.4. If both agencies do
not consent, the Attorney General will decide which agency to represent and the other
agency may obtain outside legal counsel through the Attorney General. The principles set
forth in Sections 1.9.5 through 1.9.5.4 govern the appointment of outside counsel.
1.9.3.4 Judicial Proceedings. The Arizona Supreme Court has determined that
the Attorney General has both the power and the duty to initiate court action on behalf of
the State when necessary to prevent the illegal expenditure of state funds, or to challenge
the illegal exercise of a public office. Block, 189 Ariz. at 273-75, 942 P.2d at 432-34. A
different problem is posed, however, when the Attorney General is asked to represent two
separate agencies that have a judicial dispute. The Arizona Supreme Court has stated
that where the Legislature has expressly authorized one or both of the agencies to bring
the dispute before the judicial branch for resolution, the contesting agencies are in control
of the decision to do so. State ex rel. Frohmiller v. Hendrix, 59 Ariz. 184, 197, 124 P.2d
768, 774 (1942). When this occurs, the Attorney General must decide how to provide the
necessary legal representation.
There have been rare cases in the history of Arizona where two Assistant Attorneys
General appeared in court on behalf of opposing agencies. See, e.g., State ex rel.
Conway v. Hunt, 59 Ariz. 256, 126 Ariz. 303 (1942), vacated on rehearing on other
grounds, 59 Ariz. 312, 127 P.2d 130. In Ariz. State Land Department v. McFate, 87 Ariz.
139, 348 P.2d 912 (1960), the Supreme Court seemed to approve of this practice, stating
that the Attorney General may appear through his assistants to represent both agencies
even "where two agencies of the State assert contrary positions on an issue presented to a
court for decision." 87 Ariz. at 145, 348 P.2d at 916 (citing State ex rel. Conway). McFate
is consistent with the decision of the Connecticut Supreme Court in Connecticut Comm’n
on Special Revenue v. Connecticut Freedom of Information Comm’n, 387 A.2d 533 (Conn.
1978). In that case, two assistant attorneys general represented appellant and appellee
state agencies, which took conflicting positions on the issue before the court. The
Connecticut Supreme Court rejected the lower court's conclusion that such dual
representation violated the Code of Professional Responsibility (the predecessor to the
Rules of Professional Conduct). Noting the unique role of the attorney general as the
State's attorney, the court noted:
Clearly, on the bare face of the record, the formal appearance
of the attorney general for both commissions on the appeals to
the Court of Common Pleas and to this court seems
anomalous and contrary to the ethical considerations
1−26 Revised 2011
underlying Canon 5 [of the Code of Professional
Responsibility] which is obviously based on the biblical maxim
that "no man can serve two masters." Matthew 6:24. We are,
however, not limited to consideration of the superficial
seemliness of the dual appearances. An examination of the
particular circumstances of the case, the unique position which
is held by the attorney general and his relationship to the
contesting commissions has convinced us that the trial court
was in error and that the attorney general has not been guilty
of any professional impropriety.
The attorney general of the state is in a unique position. He is
indeed sui generis. A member of the bar, he is, of course, held
to a high standard of professional ethical conduct. As a
constitutional executive officer of the state he has also been
entrusted with broad duties as its chief civil law officer and
. . . he must, to the best of his ability, fulfill his "public duty, as
Attorney General, and his duty as a lawyer to protect the
interest of his client, the people of the state." This special
status of the attorney general where the people of the state are
his clients cannot be disregarded in considering the application
of the provisions of the code of professional responsibility to
the conduct of his office.
[ . . . ]
Clearly, the relationship between the attorney general and [the
state agencies] is quite different from that between private
counsel and a client who retains him. The commissions have
no corporate existence as such. They are merely agencies of
the state and, by law, the attorney general is their legal
advisor. The reasoning of the trial court would logically lead to
the absurd conclusion that in the event of any dispute
whatsoever between two state agencies, even though that
dispute was not in litigation, the attorney general ethically could
not act as legal adviser and lawyer for either agency because
of the conflict indicated by their dispute.
[ . . . ]
As we have noted, the real client of the attorney general is the
people of the state. Any suggestion of professional impropriety
on the part of the attorney general would be considerably
lessened in cases such as the present one involving civil
litigation of a dispute between two state agencies if the
1−27 Revised 2011
appearance of the attorney general were entered for the state
of Connecticut and appearances for the separate agencies
entered by assistant attorneys general particularly assigned as
counsel for the separate agencies.
387 A.2d at 537-39 (citations omitted). See also Environmental Protection Agency v.
Pollution Control Bd., 372 N.E.2d 50, 53 (Ill. 1977) (“The Attorney General's responsibility
is not limited to serving or representing the particular interests of State agencies, including
opposing State agencies, but embraces serving or representing the broader interests of the
State. This responsibility will occasionally, if not frequently, include instances where State
agencies are the opposing parties.”); but see People ex rel. Deukmejian v. Brown, 624
P.2d 1206, 1207 (Cal. 1981) (stating no “constitutional, statutory, or ethical authority” exists
to permit attorney general to advise clients “with regard to pending litigation, withdraw, and
then sue the same clients the next day on a . . . cause of action arising out of the identical
controversy”).
In Land Department v. State ex rel. Herman, 113 Ariz. 125, 126 n.*, 547 P.2d 479,
480 n.* (1976), however, the Supreme Court appeared to disapprove the practice of the
Attorney General representing two State agencies on opposite sides of a controversy:
Since September 5, 1974, the practice of the staff of the
Attorney General representing both sides of a controversy has
ceased. On that date this Court denied jurisdiction of a petition
filed by the Department of Economic Security for special action
against the Department of Administration, both departments
being represented by the Attorney General. Another party was
substituted for the Department of Economic Security, and the
action proceeded as Navajo Tribe v. Arizona Dep't of Admin.,
111 Ariz. 279, 528 P.2d 623 (1974). The case at issue had
been instituted prior to the above date. The fact that we
allowed the matter to continue in its present posture does not
reflect any change in our policy for actions instituted after
September 5, 1974.
Thus, in only the rarest case will the Attorney General represent two State agencies
in judicial proceedings when the agencies are on opposite sides of the litigation. Instead,
in cases where two agencies are in opposition in a court proceeding, the Attorney General
will determine which to represent and withdraw from representation of the other agency, if
ethically appropriate. If the Attorney General determines that he or she ethically cannot
withdraw representation from one agency and continue to represent the other agency, then
he or she will withdraw from representation of both. Agencies that will not be represented
by the Attorney General may obtain outside counsel in accordance with Sections 1.9.5
through 1.9.5.4.
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Only in an exceptional circumstance, and only after both agencies have consented
to continued representation, will the Attorney General consider authorizing Assistant
Attorneys General to continue to represent multiple State agencies that are on opposite
sides of a dispute in a judicial proceeding. In those situations, safeguards may be
implemented, including requesting approval from the court for dual representation and
providing representation through Assistant Attorneys General in different sections of the
office.
1.9.4 Agency Adjudicatory Proceedings.
1.9.4.1 Scope of Section. Many agencies, boards, and department heads
regularly advised by the Attorney General may also become decision makers in quasi-judicial
administrative proceedings. This role is more fully discussed in Chapter 10. In
such situations, the Assistant Attorney General who provides day-to-day legal advice to the
agency, board, or department head often becomes an advocate on behalf of the "Agency"
and must present arguments asking the decision maker to take some action. In such a
situation, the same Assistant Attorney General cannot also render impartial legal advice to
the decision maker regarding the proceeding. Yet, the Attorney General's Office must
provide such advice if it is needed by the decision maker. This Section is designed to
provide guidance on how that advice will be provided.
1.9.4.2 Advocate. An Assistant Attorney General participating as an advocate in a
proceeding before an administrative tribunal cannot serve as an advisor to the tribunal
respecting that proceeding. Taylor v. Arizona Law Enforcement Merit Sys., 152 Ariz. 200,
206, 731 P.2d 95, 101 (App. 1986). The Assistant Attorney General may, however, act as
an advisor to the agency on matters not related to the proceeding in which the attorney is
appearing as an advocate. See Section 1.9.4.10.
1.9.4.3 Selection of Advisor. If an agency decision maker requests the assistance
of the Attorney General to act as advisor during the pendency of the proceeding in which
an Assistant Attorney General is appearing as an advocate, the request shall be directed to
the Solicitor General's Office. The Solicitor General will designate a qualified assistant
from either the Solicitor General's Office or another section, except the section to which the
advocate is assigned, to act as an advisor. The advisor so appointed shall, for purposes of
that specific case, be under the sole and exclusive supervision of the Solicitor General.
This procedure was discussed by the Arizona Court of Appeals in Taylor, as an appropriate
method for avoiding a conflict that would "arise if the same Assistant Attorney General
participated as an advocate before the council and simultaneously served as an advisor to
the council in the same matter." 152 Ariz. at 206, 791 P.2d at 101.
1.9.4.4 Participation in Preliminary Matters. During the course of the Attorney
General's representation of an agency, an Assistant Attorney General may advise an
agency concerning investigative matters, including whether the agency has grounds to
commence a formal action. If an action is commenced, the same Assistant Attorney
1−29 Revised 2011
General who gave advice on such preliminary matters may, and usually will, act as the
advocate, but shall thereafter refrain from discussing the specific matter with the decision
maker in any role except that of advocate. See Section 1.9.4.6. The advisor cannot
participate in such preliminary matters, except as permitted in Section 1.9.4.7.
1.9.4.5 Prohibition on Communication Between the Advocate and Advisor. No
ex parte communication shall occur between the advisor appointed by the Solicitor General
and the advocate regarding (a) the adjudication of any fact or issue in dispute, or (b) the
discovery, preparation, or presentation of any fact or legal issue on behalf of any party
participating in the proceeding.
1.9.4.6 Limitations on Advocate. The advocate shall not participate in the actual
determination by the decision maker of any fact or legal issue in dispute, nor may the
advocate have any ex parte communications with the decision maker regarding the merits
of the case. The advocate may, however, submit written proposed findings of fact or a
proposed decision to the decision maker provided that the decision maker is free to accept,
modify, or reject the proposed findings or decision and copies are promptly provided to all
adverse parties or their respective counsel to enable them to respond.
1.9.4.7 Limitations on Advisor. The advisor shall limit his or her participation to
providing the decision maker with advice on procedural matters, including questions
concerning the admission or exclusion of evidence. If the decision maker requests advice
on other matters, such as the ultimate factual or legal issues presented in the case, the
decision maker should obtain that advice jointly from all advocates and participating parties
through written memoranda or oral arguments during the course of the proceeding. The
advisor should not advise the decision maker how to resolve substantive legal or factual
issues.
1.9.4.8 Disregard of Advice. If the decision maker takes action contrary to the
argument presented by the parties, or to the legal advice of the advisor, the Attorney
General shall respect the independent judgment of that officer or tribunal.
1.9.4.9 Judicial Review. If a party challenges an administrative decision in
superior court pursuant to the Administrative Review Act, A.R.S. § 12-901 to -914, the
Attorney General normally represents the decision maker and defends the administrative
action taken. However, if the agency acted in a manner that causes the Attorney General
to conclude that it cannot represent the decision maker, the Attorney General will decline to
represent the agency. See Section 1.9.2.3.
1.9.4.10 Comments. State and federal courts consistently have ruled that
combining investigatory, prosecutorial, and adjudicative functions within a single agency
does not itself deny due process. See Withrow v. Larkin, 421 U.S. 35, 48-52 (1975);
Hamilton v. City of Mesa, 185 Ariz. 420, 427, 916 P.2d 1136, 1143 (App. 1995); Rouse v.
Scottsdale Unified Sch. Dist., 156 Ariz. 369, 371-72, 752 P.2d 22, 24-25 (App. 1988). The
1−30 Revised 2011
Arizona Court of Appeals indicated in the Taylor case that an Assistant Attorney General
may act as an advocate and another Assistant Attorney General from a different section
may serve as advisor in a case. 152 Ariz. at 206, 731 P.2d at 101.
The courts have acknowledged, however, that such a combination possesses "the
potential" for unfairness. In order to perform the required statutory duties and to ensure a
fair proceeding, all Assistant Attorneys General must adhere to the guidelines in Sections
1.9.4.1 - 1.9.4.8 when participating in administrative proceedings in which the Attorney
General is advising the decision maker and is also appearing before the decision maker as
an advocate. These guidelines are consistent with the Attorney General's ethical
restrictions and also serve to prohibit ex parte communications with judges and other
officials of a tribunal. See Ariz. Sup. Ct. R. 42, ER 3.5(b).
1.9.5 Agency Representation by Outside Counsel.
1.9.5.1 Authority to Proceed. Before a non-exempt agency or individual acts to
obtain outside counsel, the Attorney General will first determine whether legal authority
exists to require legal representation independent of the Attorney General. If it does, the
following guidelines will apply.
1.9.5.2 Available Funds. If an agency will incur an obligation to pay for legal
services, it must have both the authority to expend funds for this purpose and available
funds. The agency should transfer funds for the payment of outside legal counsel to the
Attorney General, who will reimburse outside legal counsel on behalf of the State.
1.9.5.3 Appointment. In accordance with the State's procurement laws, the State
annually receives bids from attorneys desiring to provide the State with outside counsel. If
outside counsel is required by a state agency or employee that is not exempt from Attorney
General representation, the choice of outside counsel must be made from the list of
successful bidders. The Attorney General, or the Attorney General’s designees, shall
select outside counsel. In no case shall outside counsel be given a contract to perform
services on behalf of the State or its non-exempt agencies without the Attorney General's
approval. A.R.S. § 41-2513(B).
1.9.5.4 Control of Appointed Counsel. Once outside counsel is obtained for the
cases described in this Chapter, outside counsel will exercise independent professional
judgment in the handling of the case.
1.9.6 Attorney General's Membership on Quasi-Judicial Public Entities.
1.9.6.1 General Rule. The Attorney General will generally recuse himself from
participation as a member of a board, commission, or other public entity that functions as
an administrative tribunal or in a quasi-judicial capacity in any proceeding in which an
Assistant Attorney General participates as an advocate.
1−31 Revised 2011
1.9.6.2 Issues of Compelling Public Interest. If the Attorney General determines
that participation in a particular proceeding before a board, commission, or other public
entity upon which he or she serves is of compelling public interest, he or she may elect not
to recuse him or herself from participating in the matter. In such a case, the board,
commission, or public entity may obtain outside counsel through the Attorney General to
represent it in the matter. The principles in Sections 1.9.5 through 1.9.5.4 will apply in
these circumstances.
Revised 2011
CHAPTER 2
PUBLIC OFFICERS AND EMPLOYEES
Table of Contents
Section 2.1 Scope of this Chapter
Section 2.2 Definition of "Public Officer"
Section 2.3 Qualifications for Public Office
Section 2.4 Duties and Responsibilities of Public Officers
Section 2.5 Nomination and Appointment
2.5.1 Nomination Requiring Senate Consent
2.5.1.1 Term of Office Begins or Expires or Office Becomes Vacant During
Regular Session of the Legislature
2.5.1.2 Term of Office Begins or Expires or Office Becomes Vacant While
Legislature is Not in Regular Session
2.5.1.3 Tenure of Nominee and Officer
2.5.2 Nomination and Appointment of Other Officers
Section 2.6 Loyalty Oath
Section 2.7 Term of Office
Section 2.8 Vacancy in Office
Section 2.9 Resignation from Office
Section 2.10 Expiration of Term
Section 2.11 Impeachment of Officers
Section 2.12 Deputies and Assistants
Revised 2011
Section 2.13 Compensation and Salaries
Section 2.14 The Sunset Law
Section 2.15 Selected Criminal and Civil Liability Provisions
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CHAPTER 2
PUBLIC OFFICERS AND EMPLOYEES
2.1 Scope of this Chapter. This Chapter discusses the qualifications, duties,
and responsibilities of public officers. Selected constitutional and statutory provisions
concerning appointment, tenure in office, and civil or criminal liability are also discussed.
See also Chapter 3 (Personnel).
2.2 Definition. A "public officer" is "the incumbent of any office, member of any
board or commission, or his deputy or assistant exercising the powers and duties of the
officer, other than clerks or mere employees of the officer." A.R.S. § 38-101(3). The
executive heads of all state agencies and the members of all state boards and
commissions are considered "public officers." Generally, all others working for the state
are “employees.”
2.3 Qualifications for Public Office. Persons seeking election to public office
must meet Arizona constitutional and statutory requirements. A person is not eligible for
elective State office unless he or she is a qualified elector of the political division or
municipality in which such person is elected. Ariz. Const. art. VII, § 15. A person who is
adjudicated an incapacitated person is not a qualified elector, nor is any person convicted
of treason or of a felony, unless restored to civil rights. Id. § 2(c).
Public officers, whether elected or appointed, must be at least eighteen years old,
United States citizens, and residents of Arizona, and must have registered with the
selective service system if required by law to do so. A.R.S. §§ 38-201(A), (D), (E). In
addition, constitutional or statutory provisions establish other specific qualifications for
certain public officers. See, e.g., Ariz. Const. art. V, §§ 1, 2 (age and residency
requirements for the Governor, Secretary of State, State Treasurer, Attorney General, and
Superintendent of Public Instruction).
2.4 Duties and Responsibilities of Public Officers. Public officers must
impartially execute all laws and rules for which they are responsible. The Arizona Supreme
Court stated in Button v. Nevin, 44 Ariz. 247, 257, 36 P.2d 568, 571 (1934):
Public officials may not violate the plain terms of a statute
because in their opinion better results will be attained by
doing so. They have but one duty, and that is to enforce
the law as it is written, and, if the effect of their action is
disastrous, the responsibility is upon the Legislature and
not upon them.
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Public officers, therefore, must familiarize themselves with laws and rules relating generally
to the duties and responsibilities of public officers as well as those pertaining to their
particular offices and agencies. Public officers are obligated to discharge the duties of their
offices and may not delegate those duties to subordinates unless authorized by law. See
Section 2.12. See Chapter 13 for a discussion of state officer and employee liability,
immunity, and indemnity.
2.5 Nomination and Appointment of Appointive Officers. The method for
nomination and appointment of appointive officers is usually set forth in the statutes
pertaining to the office. Certain public officers are appointed by the Governor with the
consent of the Senate, pursuant to A.R.S. § 38-211. Examples of such public officers
include the Director of Health Services (A.R.S. § 36-102(C)), the State Land Commissioner
(A.R.S. § 37-131(B)), the Director of Insurance (A.R.S. § 20-141(A)), the Real Estate
Commissioner (A.R.S. § 32-2106(A)), the Registrar of Contractors (A.R.S. § 32-1103), and
the Racing Commissioners, (A.R.S. § 5-102). Some public officers may be appointed by
the Governor with the consent of the Senate, but not pursuant to A.R.S. § 38-211. The
Director of the Department of Administration (A.R.S. § 41-701(C)) and the Director of
Economic Security (A.R.S. § 41-1952(C)) are examples. Other public officers are
appointed by the Governor without senate approval. Examples of such officers include the
members of the Board of Accountancy (A.R.S. § 32-702(B)), the Board of Barbers (A.R.S.
§ 32-302(A)), and the Board of Cosmetology (A.R.S. § 32-502(A)). Officers appointed by
the Governor, or by the Governor with the consent of the Senate, are entitled to receive a
commission of authority from the Governor. A.R.S. § 38-221(A).
2.5.1 Nomination and Appointment of Officers Who Are Appointed Pursuant
to A.R.S. § 38-211. When a statute provides that an "officer shall be appointed pursuant
to [A.R.S. § 38-211], the [G]overnor shall nominate and with the consent of the [S]enate
appoint such officer as prescribed in [that] section." A.R.S. § 38-211(A).
2.5.1.1 Term of Office Begins or Expires or Office Becomes Vacant During
Regular Session of the Legislature. When a "term of any state office which is appointive
pursuant to [A.R.S. § 38-211] expires, begins or becomes vacant during a regular
legislative session, the [G]overnor [must nominate a qualified person during that session]
and . . . promptly transmit the nomination to the [P]resident of the [S]enate." A.R.S. § 38-
211(B). If an office is occupied by an incumbent who is capable of continuing to serve until
the Senate has consented to a nomination, a nominee shall not assume the duties of the
office, pending Senate confirmation. Id. "If the incumbent is unable to continue to
discharge the duties of office, the nominee shall assume and discharge the duties of the
office pending [S]enate confirmation." Id.
"If the [S]enate consents to the nomination, the [G]overnor shall then appoint the
nominee to serve for the term or, in the case of a vacancy, for the unexpired term in which
the vacancy occurred." Id. If the Senate rejects a nomination, the Governor shall not
appoint the rejected nominee and must promptly nominate another qualified person. Id.
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If the Senate does not act on a nomination made during the regular session, the
nominee may discharge the duties of the office subject to confirmation during the next
legislative session. Id. In addition, if the Governor fails to nominate a person or the
Legislature fails to receive a nomination during the session, for an office that becomes
vacant or a term that began or ended during a regular session, the Governor shall appoint
a nominee after the close of the legislative session to discharge the duties of the office
subject to confirmation during the next legislative session. Id. This provision was added by
the Legislature in 1989 and seems to contradict the earlier provision in A.R.S. § 38-211(B)
requiring the Governor to nominate a person during the regular session. 1989 Ariz. Sess.
Laws Ch. 250, § 4. This amendment, however, has not yet been construed by the Arizona
courts.
2.5.1.2 Term of Office Begins or Expires or Office Becomes Vacant While
Legislature is Not in Regular Session. "If the term of any state office . . . expires,
begins, or becomes vacant . . . when the Legislature is not in regular session, the
[G]overnor shall nominate a [qualified] person . . . for such office." A.R.S. § 38-211(C).
The nominee shall assume the duties of the office until the Senate either rejects or fails to
act on the nomination. Id. The Governor "shall transmit the nomination to the [P]resident
of the [S]enate during the first week of the next regular session." Id.
2.5.1.3 Tenure of Nominee and Officer. A nominee shall not "serve longer than
one year after nomination without [S]enate consent." A.R.S. § 38-211(E). An incumbent
who is re-nominated to the same office is also limited to one year from the date of re-nomination
without Senate confirmation. Ariz. Att'y Gen. Op. I00-014. "Every officer who
is subject to [Senate] confirmation [under A.R.S. § 38-211] and whose term is not fixed by
law shall hold office at the pleasure of the appointing power." A.R.S. § 38-211(D).
2.5.2 Nomination and Appointment of Other Officers. As previously noted, a
number of officers are to be appointed by the Governor, subject to Senate confirmation,
but are not appointed pursuant to A.R.S. § 38-211. A.R.S. § 38-295 provides that these
other appointees’ offices are also covered by the provisions of A.R.S. § 38-211.
2.6 Loyalty Oath. In Arizona, a loyalty oath is required of officers and employees
of all government agencies. A.R.S. § 38-231(E); see Ariz. Att'y Gen. Op. I86-020.
"[O]fficer or employee" is defined for this purpose as "any person elected, appointed or
employed, either on a part-time or full-time basis, by this state, or any of its political
subdivisions or any county, city, town, municipal corporation, school district, public
educational institution or any board, commission or agency of any county, city, town,
municipal corporation, school district or public educational institution." A.R.S. § 38-231(F).
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The loyalty oath provides as follows:
State of Arizona, County of
I, , do solemnly swear (or affirm) that I
will support the Constitution of the United States and the
Constitution and laws of the State of Arizona, that I will bear true
faith and allegiance to the same and defend them against all
enemies, foreign and domestic, and that I will faithfully and
impartially discharge the duties of the office of
(name of office) according to the best of my
ability, so help me God (or so I do affirm).
(signature of officer or
employee)
Id. § (E). Any person who fails to take and execute the loyalty oath may not receive
compensation, A.R.S. § 38-231(B), and is deemed to have vacated the office, A.R.S. § 38-
291(9). A person who exercises the duties of public office without first taking the oath is
guilty of a class 2 misdemeanor. A.R.S. § 38-442(A).
An officer or member of a board or commission must take, subscribe, and file the
loyalty oath "[i]f appointed, at or before commencement of the term of office,” or “if elected,
at any time after receiving the officer’s certificate of election, and at or before
commencement of the term of office." A.R.S. § 38-232.
The loyalty oath of an elected officer must be filed with the Secretary of State. The
oaths of other state officers and employees must be filed with the office of the employing
state board, commission or agency to which they have been appointed or for which they
work. A.R.S. § 38-233(A).
2.7 Term of Office. Many public officers have terms of office specified by law,
most often running from two to five years. When the term of an appointive office has not
been established by law, the officer holds the position at the pleasure of the appointing
authority. A.R.S. §§ 38-211(D), -295(A).
2.8 Vacancy in Office. A public office is deemed vacant if:
1. The public officer dies, is judicially determined to be insane, resigns and the
resignation is accepted, is removed from office, ceases to be a resident of
the state or locale for which he was elected, or is convicted of a felony or of
an offense involving his official duties. A.R.S. § 38-291(1)-(5), (8).
2. The public officer is absent from the state without legislative permission for
more than three consecutive months, ceases to discharge the duties of the
office for three consecutive months, fails to file the required oath or bond on
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time, or violates the restrictions imposed by A.R.S. § 38-296 (Arizona's
"resign-to-run" statute). A.R.S. § 38-291(6), (7), (9), (12).
3. No one is elected or appointed, or a competent tribunal declares the election
or appointment void. A.R.S. § 38-291(10), (11).
4. For an office subject to A.R.S. § 38-211, when the Senate rejects the
nomination or fails to act on the nomination within one year of its submission
to the Senate. See, e.g., A.R.S. § 38-211(E).
The Constitution provides that the Governor shall have the power to fill a vacant
public office by appointment, unless otherwise provided in the Constitution or laws. Ariz.
Const. art. V, § 8.
2.9 Resignation from Office. An appointive officer seeking to resign from office
must deliver a written resignation to the appointing authority. A.R.S. § 38-294(7). The
resignation is not effective until accepted by the appointing authority. A.R.S. § 38-291(3).
If the appointing authority does not accept the resignation, the officer must continue to
discharge the duties of the office until his successor is qualified. See Cragin v. Frohmiller,
43 Ariz. 251, 256-257, 30 P.2d 247, 249 (1934); cf. Rogers v. Frohmiller, 59 Ariz. 513, 517,
130 P.2d 271, 273 (1942) (resignation and acceptance would not relieve officer from duty
until his successor qualified). "The resignation of the incumbent elective officer duly filed in
writing . . . shall, if not accepted within ten days, be deemed to have become effective as of
the date of filing." A.R.S. § 38-296(C) (emphasis added). If an officer resigns and the
resignation is accepted or becomes effective before the expiration of the term, an officer
who is appointed to fill the vacancy may serve only for the remainder of the unexpired term.
A.R.S. § 38-295(C).
2.10 Expiration of Term. Except as provided in A.R.S. § 38-211 for an officer
whose appointment is subject to Senate confirmation, an officer is required to continue to
discharge the duties of the office after the expiration of the term of office, until a successor
has qualified. A.R.S. § 38-295(B).
2.11 Impeachment of Officers. All officers are "liable to impeachment for high
crimes, misdemeanors, or malfeasance in office." Ariz. Const. art. VIII, pt. 2, § 2; A.R.S.
§ 38-311.
2.12 Deputies and Assistants. Public officers may appoint deputies and
assistants only when specifically authorized to do so by law. A.R.S. § 38-461(A). The
appointment must be in writing and filed with the Secretary of State. A.R.S. § 38-461(C).
"Unless otherwise provided [by law], each deputy . . . possesses the powers and may
perform the duties prescribed by law for the office of the principal." A.R.S. § 38-462.
Public officers "may appoint clerks and employees for the prompt discharge of the duties of
the office.” A.R.S. § 38-461(A).
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2.13 Compensation and Salaries. Public officers, members of boards and
commissions, deputies, and other employees are entitled to receive the salary authorized
by law for their respective positions, and are prohibited from receiving any salary or
emolument in excess of the legally authorized salary. A.R.S. § 38-601. Also, the
compensation of a public officer serving for a fixed term of office may not be increased or
decreased during the officer's term of office, except that the compensation for officers
serving on boards composed of two or more officers whose terms are not coterminous may
be increased. Ariz. Const. art. IV, pt. 2, § 17. When the salary of one member of such a
board is adjusted legislatively at the beginning of a term, the other members' salaries are
also adjusted so those doing substantially the same work receive the same pay. See
Maricopa County v. Rodgers, 52 Ariz. 19, 25, 78 P.2d 989, 991-92 (1938).
All state officers and employees subject to the provisions of the state personnel
system receive salaries within the range set forth in the Department of Administration
salary plan as adopted or modified by the Legislature. A.R.S. § 38-611(B). If exempt from
the state personnel system, state officers and employees receive salaries within the range
recommended annually by the Department of Administration to the Legislature and the
Joint Legislative Budget Committee. A.R.S. § 38-611 (A). Some members of boards,
commissions, councils, or advisory committees may receive compensation at a rate not to
exceed $30 for each day they serve. A.R.S. § 38-611(D). Certain state officers and
employees are exempt from the foregoing compensation provisions. See A.R.S. § 38-
611(C).
2.14 The Sunset Law. In 1978, the Legislature enacted a "Sunset Law," which
provides for the automatic termination of certain administrative agencies unless specific
justification can be given for continuing their existence. A.R.S. §§ 41-2951 to 41-2958.
The Auditor General and committees of the Legislature conduct a "sunset review" of each
administrative agency scheduled for termination. The sunset review includes (i)
determining whether there is a need for the agency's program, (ii) assessing the degree to
which the program objectives have been achieved, and (iii) assessing the situation or
problem the agency was intended to address. A.R.S. § 41-2952(5). Unless specific
legislation is enacted to continue the agency or modify its structure, the agency ceases to
exist on the scheduled termination date. A.R.S. § 41-2955. The scheduled termination
dates for agencies may be found in A.R.S. Title 41, chapter 27, article 2. A termination
schedule is added by the Legislature each year.
2.15 Selected Criminal and Civil Liability Provisions. Public officers and
employees should be familiar with certain criminal and civil liability provisions that may be
relevant to their activities. See generally Chapters 8 (Conflict of Interest), 13 (Litigation
Against State Entities or Employees), and 14 (Detection of Criminal Violations). Selected
provisions follow:
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OFFENSE CLASSIFICATION
1. Obstructing governmental
operations.
Class 1 misdemeanor
Knowingly obstructing, impairing or hindering
the performance of a governmental function
by threat of violence or physical force.
A.R.S. § 13-2402; Section 14.3.5.
2. Impersonating a public servant. Class 1 misdemeanor
Pretending to be a public servant with intent
to induce another to submit to the actor's
pretended official authority or to rely on his or
her pretended official acts. A.R.S. § 13-
2406; Section 14.3.5.
3. Tampering with a public record. Class 6 felony
Knowingly, with intent to defraud or deceive,
preparing, altering, using, or filing a false
written instrument as a public record;
destroying, removing, mutilating, or
concealing public records; or refusing to
deliver a public record after a proper request
has been made. A.R.S. § 13-2407; Section
14.3.5.
4. Bribery. Class 4 felony
Conferring a benefit on a public servant, with
corrupt intent, "to influence the public
servant's . . . vote, opinion, judgment,
exercise of discretion or other action in his
official capacity;" or the solicitation or
acceptance by a public servant, with corrupt
intent, of any benefit with the "understanding
that his vote, opinion, judgment, exercise of
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discretion or other action . . . may thereby be
influenced." A.R.S. § 13-2602; Section
14.3.6.
5. Trading in public office. Class 6 felony
Offering, conferring or agreeing to confer,
with corrupt intent, a benefit upon a public
servant in exchange for appointment, or
nomination as a candidate to a public office,
or soliciting or agreeing, with corrupt intent,
to accept any benefit in exchange for
appointing or nominating another to a public
office. A.R.S. § 13-2603; Section 14.3.6.
6. Perjury. Class 4 felony
Making a false sworn statement or false
unsworn declaration, certificate, verification
or statement subscribed to be true under
penalty of perjury, believing it to be false, in
regard to an issue that could have affected
the course or outcome of any proceeding or
transaction. A.R.S. § 13-2702; Section
14.3.7.
7. False swearing. Class 6 felony
"Making a false sworn statement, believing it
to be false." A.R.S. § 13-2703; Section
14.3.7.
8. Unsworn falsification. Class 2 misdemeanor
(false application)
Knowingly making a "statement which he
believes to be false, in regard to [an issue
that could have affected the course or
outcome of any proceeding or transaction],
to a public servant in connection with an
OR
Class 1 misdemeanor
(false statement in connection with official
proceeding)
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application for any benefit, privilege, or
license;" or knowingly "making any statement
which he believes to be false in regard to a
material issue to a public servant in
connection with any official proceeding."
A.R.S. § 13-2704; Section 14.3.7.
9. Tampering with a witness. Class 6 felony
Knowingly inducing a witness or person who
may be called as a witness to unlawfully
withhold testimony, testify falsely, or be
absent from an official proceeding to which
the witness has been legally summoned.
A.R.S. § 13-2804.
10. Liability for failure to collect fees. Civil liability
Neglecting or failing to collect fees for
licenses, permits, certificates, or other
monies due a budget unit at the time such
licenses, permits, and certificates are issued,
or services rendered. A.R.S. § 35-143.
11. Liability for unauthorized
obligations.
Civil liability
Incurring, ordering, or voting for "the
incurrence of any obligation against the state
or for any expenditure not authorized by an
appropriation and an allotment."
A.R.S. § 35-154.
12. Illegal withholding or expenditure
of state monies.
Civil liability, plus 20% penalty
Illegally withholding, expending, or otherwise
converting any state money to an
unauthorized purpose. A.R.S. § 35-196.
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13. Violation of fiscal provisions. Class 1 misdemeanor
Knowingly failing or refusing to comply with
any provision contained in Title 35, Chapter 1
(relating to budgeting, accounting, and
control of public finances). A.R.S. § 35-197.
14. Liability for approval, allowance,
or payment of unauthorized claim.
Civil liability, 20% penalty, interest
and attorneys fees
Approving, auditing, allowing, or paying a
claim or demand against the state that is not
authorized by law. A.R.S. §§ 35-211, -212.
15. Influencing, obstructing, or
impairing an audit.
Class 5 felony
"[W]ith intent to defraud or deceive,
improperly influenc[ing], obstruct[ing], or
impair[ing] an audit being conducted or about
to be conducted . . . in relation to any
contract or subcontract with the state."
A.R.S. § 35-215; Section 14.3.3.
16. Violation of duties of custodian of
public monies.
Class 4 felony
Misappropriating public monies for loans or
personal use, or otherwise misusing public
monies in the custodian's safekeeping.
A.R.S. § 35-301.
17. Violation of loyalty oath. Class 4 felony
Knowingly acting to overthrow, or advocating
the overthrow by force or violence or
terrorism of state or local governments or
becoming or remaining a member of the
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Communist party or other subversive
organization (and with knowledge of its
goals) during term of office. A.R.S. § 38-
231(C). See also Ariz. Att'y Gen. Ops. I79-
156, 76-126.
18. Usurpation of office. Class 2 misdemeanor
Knowingly intruding "into a public office to
which [one] has not been elected or
appointed" or knowingly exercising "the
functions of [the] office after [the] term has
expired and a successor has been elected or
appointed and has qualified." A.R.S. § 38-
234.
19. Withholding or destroying public
records or property.
Class 4 felony
Knowingly withholding, detaining, mutilating,
destroying or taking away property of an
office from the lawful successor or other
person entitled to the property. A.R.S. § 38-
363.
20. Charging excessive fees. Class 5 felony
(Civil liability, four times fee)
Demanding and receiving a higher fee than
prescribed by law or any fee not established
by law. A.R.S. § 38-413; Section 14.3.8(2).
21. Failing to report amount
collected.
Class 2 misdemeanor
(Removal from office)
Knowingly failing to report fees or other
monies collected or to file required
statement. A.R.S. § 38-414; Section
14.3.8(3).
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22. Stealing, destroying, altering, or
secreting public records.
Stealing, or knowingly and without lawful
authority destroying, mutilating, defacing,
altering, falsifying, removing, or secreting all
or part of any public record, or permitting any
other person to do so. A.R.S. § 38-421;
Section 14.3.5.
Class 4 felony
(Public officers)
Class 6 felony
(Persons other than public officers)
23. Making or giving a false
certificate.
Class 6 felony
Making or giving as true a certificate or
writing containing a statement known by the
maker to be false. A.R.S. § 38-423.
24. Acting as a public officer without
qualifying.
Class 2 misdemeanor
"Exercis[ing] a function of a public office
without taking the oath of office, or without
giving the required bond." A.R.S. § 38-442.
25. Nonfeasance in public office. Class 2 misdemeanor, unless special
provision for punishment has been made
Knowingly omitting to perform any duty
required of one’s office by law. A.R.S. § 38-
443; Section 14.3.8(1).
26. Asking or receiving illegal gratuity
or reward.
Class 6 felony
Knowingly asking or receiving "any
emolument, gratuity or reward, or any
promise thereof . . . for doing any official
act." A.R.S. § 38-444.
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27. Violation of conflict of interest
prohibition.
Class 5 felony, plus
permanent bar from state office
Making or having an interest in contracts, or
becoming a vendor or purchaser at sales, or
purchasing evidences of indebtedness when
prohibited by law. A.R.S. § 38-447; see
Sections 8.2, 8.16.1 - 8.16.3.
28. Purchase of appointment. Class 6 felony
"[K]nowingly giv[ing] or offer[ing] any gratuity
or reward in consideration that he, or any
other person, be appointed to a public office,
or permitted to exercise or discharge the
duties [of such office]." A.R.S. § 38-465.
29. Sale of appointment to office. Class 6 felony, plus forfeiture of office and
permanent bar from holding state office
Appointing or permitting another to exercise
or discharge any duties of the public office in
exchange for a gratuity or reward. A.R.S.
§ 38-466.
30. Unlawful employment of relatives. Class 2 misdemeanor
Appointing or voting for the appointment of
relatives related by affinity or consanguinity
within the third degree to any office or
position in an agency of which the appointing
officer is a member. A.R.S. § 38-481(A).
31. Violating conflict of interest
provisions. See Chapter 8
Sections 3.9.2, 14.3.8(5).
Class 6 felony, plus
forfeiture of office or employment
Intentionally or knowingly violating conflict of
interest provisions, A.R.S. §§ 38-503 to -505.
A.R.S. § 38-510(A), (B).
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Recklessly or negligently violating such
provisions. Id.
Class 1 misdemeanor
32. Liability for payment to
disqualified persons.
Civil liability for twice the amount paid
"[A]llow[ing], audit[ing], or pay[ing] any
warrant or other certificate of indebtedness
for services performed to any person not
qualified as provided in A.R.S. § 38-201."
A.R.S. § 38-607.
33. Retention of subordinate's
salary.
Class 5 felony
Accepting, retaining, or diverting for one's
own use or the use of another any part of the
salary or fees allowed by law to be paid to
one's deputy or other employees. A.R.S.
§ 38-609.
34. Violating personnel provisions. Class 2 misdemeanor, plus suspension
and five-year ban from state employment
Violating laws or rules relating to the
appointment, hiring, demotion, promotion, or
firing of any person with respect to
employment in state service. A.R.S. § 41-
775.
35. Violating lobbying provisions. Class 1 Misdemeanor
Knowingly violating laws relating to lobbying,
registration of public lobbyists, lobbying
expenditure reports, and gifts to state officers
and employees as provided for in A.R.S.
§ 41-1231 to -1239. A.R.S. § 41-1237(A).
See Chapter 16 for a discussion of the
lobbying provisions.
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A public officer or