Arizona Agency Handbook

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ARIZONA AGENCY
HANDBOOK COMMITTEE
CHAIRPERSON
KATHY W. COOK, Deputy Attorney General
EDITORIAL COMMITTEE
JESSICA G. FUNKHOUSER, Special Counsel
FRED W. STORK III, Chief Counsel, Civil Division
SHIRLEY S. SIMPSON, Assistant Attorney General
DIANE D. HIENTON, Assistant Attorney General
DIANA P. STABLER, Assistant Attorney General
LINDA J. POLLOCK, Assistant Attorney General
GAY A. MENNUTI, Administrative Assistant
HANDBOOK AND COMMITTEE COORDINATORS
SHARON K. WALLER, Administrative Secretary
LAURA C. GILLETTE, Legal Secretary
GA Y A. MENNUTI, Administrative Assistant
CONTRIBUTORS
HEIDI R. BRENT
LEZLIE A. CEREGHINI
KATHY W. COOK
DENNIS T. FENWICK
JESSICA G. FUNKHOUSER
RONALDJ.GREENHALGH
PATRICK M. MURPHY
LINDA J. POLLOCK
J. DAVID RICH
W. MARK SENDROW
ELIZABETH J. STEWART
FRED W. STORK m
GAIL H. THACf<ERY
JAMES D. WINTER
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All Agencies of State Government
State of Arizona
Ladies and Gentlemen:
1275 WEST WASHINGTON
Jlrll.enix, J\rh!llua 85.007
~uh£rt ~_ <!Turhin
I take great pleasure in presenting to you the second edition of the Arizona
Agency Handbook. This handbook constitutes the work of several lawyers in the Attorney
General's Office who recognized the need for revisions to the 1982 Handbook and took the
necessary time from their busy schedules to write and edit the material you find in this
book. I thank them for what I consider to be an outstanding public service and I hope that
all agencies of state government find this edition of the handbook useful.
I, of course, welcome any comments or suggestions you may have on how to
improve the handbook in future revisions. '
Very truly yours,
BOB CORUlN
The Attor'lle~ (ieneral
[11
FOREWARD
Over the past decade both the size and complexity of state government in
Arizona have grown substantially. That growth has prompted an ever increasing number
of laws governing the manner in which government must conduct its business. For the
public officers and employees who must operate state government, the need for frequent
legal assistance has become a necessity. Several years ago we recognized that this
growing need for legal services could not be met simply by hiring more lawyers in the
Office of the Attorney General. The Arizona Agency Handbook was conceived as a
partial solution to this problem. The purpose of the handbook is to set forth and explain
the major state laws that govern the operation of state agencies. We thank everybody in
the Attorney General's Office who supported our work by providing secretarial services,
legal research and word processing.
The handbook's discussion of statutes, rules, constitutional provisions and case
law is current as of February 1, 1988. However, when using the handbook as a reference,
the reader should always examine the statutes or rules in question to determine whether
there has been a change in the law since February 1, 1988.
Based on the sheer volume of revisions required to update the original
handbook, we found it necessary to re-publish the handbook in lieu of supplementing the
last edition. This handbook is therefore intended to supersede in its entirety the 1982
publica tion.
EDITORIAL COMMITTEE
ARIZONA AGENCY HANDBOOK
OFFICE OF THE ATTORNEY GENERAL
c.
T ABLE OF CONTENTS
Chapter
1. The Attorney General and Department of Law
2. Public Officers and Employees
3. Personnel . .
4. Public Monies
5. Purchasing.
6. Public Records
7. Open Meetings
8. Conflict Of Interest.
9. Licensing . . .
10. Adjudicatory Proceedings
11. Rule Making .
12. Enforcement.
13. Liability Of State Officers And Employees
14. Detection Of Criminal Conduct.
15. Contract and Tort Claims
16. Index ....... .
Page
l.i
2.i
3.i
4.i
5.i
6.i
7.i
8.i
9.i
10.i
l1.i
l2.i
13.i
14.i
l5.i
I.i
Section 1.1
Section 1.2
Section 1.3
1.3.1
1.3.2
1.3.3
1.3.4
1.3.5
1.3.6
1.3.7
1.3.8
1.3.9
1.3.10
1.3.11
1.3.12
1.3.13
1.3.14
1.3.15
1.3.16
1.3.17
CHAPTER 1
THE ATTORNEY GENERAL AND THE DEPARTMENT OF LAW
Table of Contents
Scope of this Chapter
Constitutional Powers and Duties of the Attorney General
Statutory Powers and Duties of the Attorney General
General Powers and Duties
Power to Organize Office and Organizational Structure of
the Department of Law.
Employment of Legal Counsel by the Attorney General and
State Agencies
General Representation Powers
Representation of Individual Officers and Employees in
Civil Actions
Power to Settle Claims and Lawsuits Against the State,
Boards, Commissions and Agencies of the State
Powers and Duties Relating to County Attorneys
Opinion Writing Authority
Power to Certify Administrative Rules
Authority to Approve Bonds
Criminal Prosecution Powers
Power to Enforce the Consumer Fraud Act
Power to Enforce the State Antitrust Law
Power to Enforce the State Civil Rights Act
Power to Collect Debts
Open Meeting Law Enforcement
Miscellaneous Powers and Duties
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Section 1.4
104.1
1.4.2
1.4.3
104.4
Section 1.5
1.5.1
1.5.2
1.5.3
1.5.4
1.5.5
Section 1.6
Section 1.7
1.7.1
1.7.2
Section 1.8
Section 1.9
1.9.1
1.9.2
1.9.3
1.9.4
1.9.5
Role of the Attorney General in Representing and Advising
State Administrative Agencies. Public Officers and
Emo10yees
Administrative Agencies
Public Officers and Employees
Legal Assistance to Members of the Public
Legislative Representation for Public Officers and Employees
Role of the Attorney General in Issuing Legal Opinions
Authority to Issue Opinions
Request Procedure
Scope of Opinions
Educa tion Opinions
Opinion Summaries
Role of the Attorney General in the Adoption and
Certification of Administrative Rules
Role of the Attorney General in the Approval of Contracts.
Leases and Intergovernmental Agreements
Contracts and Leases
Intergovernmental Agreements
Investigative Services Within the Department of Law
Procedure for Receipt of Service of a Summons.
Complaint. Subpoena or Other Document
Service of Summons and Complaint Against the State:
Personal Service; Rule 4(d), Rules of Civil Procedure
Service of Process for Individuals
Alternate Service by Mail: Rule 4(e)(7),
Rules of Civil Procedure
Procedure for Alternative Service of Summons and Complaint
by Mail
Service or Receipt of Subpoenas
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Section 1.10 Attorney General's Guidelines for Representation of
State Agencies
1.10.1 Preamble and Scope
1.10.2 Attorney General's Representational Role
1.10.2.01 Attorney General's Relationship to the State, its Agencies
and Employees
1.10.2.02 Adverse Interests Other Than Enforcement Actions
1.10.2.03 Enforcement Actions Against State Officials
1.10.2.04 Agency Requests for Actions or Defenses that Are Not
Legally Supportable or for Delay
1.10.2.05 Comments
1.10.3 Multiple Representation of State Agencies
1.10.3.01 Agency Representation
1.10.3.02 Non-Judicial
1.10.3.03 Quasi-Judicial Proceedings
1.10.3.04 Judicial Proceedings
1.10.3.05 Comments
1.10.4 Agency Adjudicatory Proceedings
1.10.4.01 Advocate
1.10.4.02 Selection of Advisor
1.10.4.03 Preliminary Matters
1.10.4.04 Prohibition on Communication
1.10.4.05 Limitations on Advocate
1.10.4.06 Limitations on Advisor
1.10.4.07 Disregard of Advice
1.10.4.08 Judicial Review
1.10.4.09 Comments
1.10.5 Agency Representation by Outside Counsel
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1.10.5.01 Authority to Proceed
1.10.5.02 Available Funds
1.10.5.03 Appointment
1.10.5.04 Control of Appointed Counsel
1.10.5.05 Comments
1.10.6 Attorney General's Membership on Quasi-Judicial Boards,
Commissions, etc.
1.10.6.01 General Rule
1.10.6.02 Issues of Compelling Public Interest
1.10.6.03 Application of Guidelines Regarding Agency
Adjudicatory Proceedings
Appendix 1.1 Organization Chart and Description of Division
Form 1.2 Request for Investigative Services
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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 and his role in advising and representing state agencies, officers and
employees. The discussion proceeds from the standpoint of how the Attorney General
views his obligation to provide legal services, with an effort to give agencies an idea of
when and under what circumstances they should seek assistance from the Attorney
General. In addition, this Chapter charts the organizational structure of the Department
of Law and indicates the responsibilities of each of the divisions within the office. If you
have questions not addressed in this Chapter, you should contact the Assistant Attorney
General assigned to represent your agency or the Chief Counsel of the appropriate
division.
1.2 Constitutional Powers and Duties of the Attorney General. The office of
the Attorney General was created by the Arizona Constitution in article V, section 1. The
Attorney General has no common law or independent power, and he may exercise only
those powers and duties conferred upon him by the Constitution or by state statute. Ariz.
Const. art. V, § 9; Smith v. Superior Court, 101 Ariz. 559, 560, 422 P.2d 123, 124 (1967);
Shute v. Frohmi11er, 53 Ariz. 483, 90 P.2d 998 (1939). The Constitution does not prescribe
any powers or duties for the Attorney General but mandates the Legislature to set them
forth.
1.3 Statutory Powers and Duties of the Attorney General.
1.3.1 General Powers and Duties. The Legislature has set forth the general
powers and duties of the Attorney General in Title 41, Chapter 1, Article 5, of the
Arizona Revised Statutes, consisting of §§ 41-191 to -196. The following subsections deal
with those portions of the statutes relating to the powers and duties of the Attorney
General in advising and representing state agencies. These subsections are not exhaustive
but are merely an attempt to describe the general parameters of the powers and duties of
the Attorney General. You should review the statutes pertaining to your individual
agency to determine if the Attorney General has been given speCific powers and duties
pertaining to your agency.
1.3.2 Power to Organize Office and Organizational Structure of the
Department of Law. The Attorney General has the power and duty to organize the
department into such bureaus, subdivisions or units as he deems most efficient and
economical, and consolidate or abolish them; in exercising this power, he may hire and
assign such assistants as are necessary to perform the functions of the department. See
A.R.S. § 41-192. The Attorney General is speCifically required by law to organize the
Civil Rights Division within the department and administer that division pursuant to the
powers and duties provided in Title 41, Chapter 9.
Appendix 1.1, a ttached to this Chapter, is an organization chart of the
department, listing those individuals responsible for each division, and containing a brief
description of the function and responsibility of each division.
1.3.3 Employment of Legal Counsel by the Attorney General and State
Agencies. Notwithstanding any law to the contrary, A.R.S. § 41-l92(E) prohibits any
state agency other than the Attorney General from employing legal counselor making an
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expenditure or incurring an indebtedness for legal services, except that the Residential
Utility Consumer Office, the director of Water Resources, the Industrial Commission, the
Arizona Power Authority, the Arizona Board of Regents, the Corporation Commissioners,
the Arizona Health Care Cost Containment System Agency and the Corporation
Commission, other than the Securities Division. are exempt from the provisions of this
Section.
The statutes which set forth the powers and duties of some agencies and
departments provide that compensation for personnel assigned by the Attorney General to
perform legal services shall be a charge against the appropriations to that department or
agency. See, for example, A.R.S. § 28-109. Other statutes, such as A.R.S. § 42-142(A),
authorize agencies to employ and pay for legal services only with the consent of the
A ttorney General.
1.3.4 General Representation Powers. A.R.S. § 41-192 provides that the
Attorney General shall have charge of and direct the Department of Law, and shall serve
as chief legal officer of the state. In that regard, the Attorney General has the statutory
duty to be the legal advisor to the various departments and agencies of the state and
coordinate their legal services. As the agency's advisor. he represents the agency in both
administrative and judicial proceedings concerning the enforcement of the agency's
statutes, rules and orders. The Attorney General represents school districts, governing
boards of school districts. and fire districts only in lawsuits in which a conflict of interest
with other county offices exists. He represents political subdivisions, school districts and
municipalities only 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).
A.R.S. § 41-193 provides that the Attorney General shall prosecute and defend
in the Arizona Supreme Court all proceedings in which the state or a state officer in his
official capacity is a party. In addition, at the direction of the Governor or when deemed
necessary by the Attorney General, the Attorney General has the responsibility to
prosecute and 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. The Attorney
General also has the duty to represent the state in any action in a federal court.
1.3.5 Representation of Individual Officers and Employees in Civil Actions.
A.R.S. § 41-192.02 provides that the Attorney General in his discretion is authorized to
represent an officer or employee of this state against whom a civil action is brought in his
individual capacity until such time as 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. You should refer to Chapter 13 for a more detailed discussion of the
liability of state officers, agents and employees, and the Attorney General's function in
handling claims and lawsuits involving state officers, agents and employees.
1.3.6 Power to Settle Claims and Lawsuits Against the State. Boards.
Commissions and Agencies of the State. The Director of the Department of
Administration ("DOA") is authorized to settle actions or claims for liability damages
against the state or any state officer, department, board, or agency up to the amount of
$25,000 (or such higher limit established by the Joint Legislative Budget Committee).
Claims between $25,000 to $50,000 may be settled with the approval of the Director of
DOA and the Attorney General (the elected official himselO. Claims over $50,000 may
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be settled with approval of the Director of DOA, the Attorney General, and the Joint
Legislative Budget Committee. No state department, agency, board, commission, officer,
agent or employee may make any payment, assume any obligation, incur any expense or
maintain the individual right of consent for liability claims. A.R.S. § 4l-62l(M). See
Chapter 13 for a more detailed description of the state's self-insurance program and the
function of the Attorney General in connection with that program.
The Attorney General is authorized to compromise or settle other claims not
involving liability self-insurance pursuant to A.R.S. § 41-192(B)(4) with the approval of
the department, board or agency involved, or the Governor.
1.3.7 Powers and Duties Relating to County Attorneys. The Attorney General
has the power to exercise supervision over county attorneys only in matters pertaining to
their office and, at the direction of the Governor, or when deemed necessary, assist a
county attorney in the discharge of his duties.
1.3.8 Opinion Writing Authority. A.R.S. § 41-193(A)(7) requires the Attorney
General to render a written opinion upon demand by the Legislature, or either house
thereof, any public officer of the state, or a county attorney, upon any question of law
relating to their offices. See Section 1.5 for a detailed discussion on requesting and
obtaining a written opinion from the Attorney General.
1.3.9 Power to Certify Administrative Rules. A.R.S. § 41-1041 requires the
Attorney General to approve or reject an rules proposed by a state agency unless an
agency is expressly exempted from the Administrative Procedure Act. See Section 1.6 of
this Chapter describing the Attorney General's role with respect to the rule making and
Chapter 11 for further detailed discussions concerning the procedures for adoption of
rules.
1.3.10 Authority to AQProve Bonds. The Attorney General is empowered to
review and approve various forms of government bonds. See, for example, A. R.S. § 9-534
(Municipal bonds), A.R.S. § 15-1489 (Educational bonds), A.R.S. § 28-2009 (Transportation
bonds), A.R.S. § 30-227 (Arizona Power Authority bonds), and A.R.S. § 36-1414 (Housing
bonds).
1.3.11 Criminal Prosecution Powers. The Attorney General is authorized to
prosecute certain criminal offenses. A.R.S. § 44-2032 (Securities Act), A.R.S.
§ 41-l279.22 (County, community college and school district audits), A.R.S. § 46-133
(Welfare laws), A.R.S. § 23-656 (Labor laws), A.R.S. § 20-152 (Insurance laws), A.R.S.
§ 21-421 (Grand Jury jurisdiction) and A.R.S. §§ 13-2301 to -2317 (Racketeering Act) are
examples of some of these offenses.
Because the Attorney General's responsibilities vis-a-vis the Grand Jury and
the Racketeering Act are important, they merit further discussion. A grand jury with
statewide jurisdiction is continually in session. The Attorney General presents evidence
of criminal conduct to the State Grand Jury and prosecutes all indictments returned by
the jury. Basically, the State Grand Jury and the Attorney General have jurisdiction over
white collar crime, organized crime, public corruption and crimes occurring in more than
one county. ~ 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 Office.
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The Attorney General also investigates violations of and enforces the state's
Racketeering Act, A.R.S. §§ 13-2301 to -2317. The Racketeering Act defines
racketeering as any act committed for financial gain which is punishable by imprisonment
for more than one year involving homicide, forgery, bribery, usury, extortion, obstructing
justice, false claims or statements, securities or land fraud, money laundering and other
similar activities. A.R.S. § 13-230 1 (D)(4). The Act provides criminal penalties and civil
remedies for the control of any business either with racketeering proceeds, or through
racketeering activity, A.R.S. § 13-2312(A), and for the conduct of a business through
racketeering activity, A.R.S. § 13-2312(B).
The Attorney General is also authorized to obtain injunctive relief,
disgorgement, divestiture, damages and other civil remedies against persons engaged in
racketeering. A.R.S. § 13-2314. Any agency discovering conduct that would fall within
the Racketeering Act should report that conduct to the Attorney General's Office.
The following list includes the principal areas of criminal jurisdiction and
responsibility given to the Attorney General by th~ Legislature:
A. Attend, advise, investigate for. present evidence to and prosecute all
indictments returned by the State Grand Jury, A.R.S. §§ 21-424 and -427, including
offenses or violations of law:
1. Arising out of or in connection with the determination or
collection of state taxes, the registration or failure to register
securities, the offer or sale of securities, the offer or sale of
interests in land, the formation or operation of banks, insurance
companies, pension funds, labor unions, professional sports
enterprises, corporate enterprises, or business enterprises, the
making or collecting of loans, events leading to receivership or
declaration of bankruptcy by a business enterprise, the sale or
purchase of goods or services by or for the state or political
subdivisions, bribery, obstruction of justice, hindering prosecution or
any form of intentional, knowing or corrupt misconduct involving
any person compensated by public funds; or
2. Arising out of or in connection with any fraud, theft or
posseSSion, receipt, sale or transportation of stolen property or
other contraband, or gambling or prostitution or narcotics, which
occurs in more than one county or which occurs in one county and
affects the residents of another county or which may be prosecuted
by more than one county attorney; or
3. Arising out of or in connection with perjury, false swearing,
unsworn falsification, or any violation of title 13, chapter 28 in
connection with any state grand jury proceeding, committed by any
person testifying before it or in any trial or other proceeding
involving any indictment returned by a state grand jury; or
4. Arising out of or in connection with any perjury by
subornation or attempted perjury by subornation relating to
testimony before it or in any trial or other proceeding involving any
indictment returned by a state grand jury; or
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5. Arising out of or in connection with any violation of title 13,
chapter 23 or 38-421 or 39-161.
A.R.S. § 21-422.
B. Advise County Attorneys of cases investigated by the State Grand Jury and
refer to them crimes discovered by the State Grand Jury but not within its jurisdiction.
A.R.S. §§ 2l-422(B) and -426.
C. Conduct investigations and prosecute violations arising out of or in
connection with Arizona's Racketeering Act, A.R.S. §§ 13-2301 to -2817. A.R.S.
§ 21-422.
D. Prosecute by way of complaint any offense within the jurisdiction of the
State Grand Jury. A.R.S. § 21-427(B).
E. Prosecute offenses arising out of the operation of the Arizona State
Lottery. A.R.S. § 5-512.01.
F. Prosecute offenses arising out of the operation of a discount buyer's
organization or service. A.R.S. §§ 44-1797 to -1797.20; see §§ 44-1797.04(B) and
-1797.20.
G. Prosecute violations of the state's employment security program. A.R.S.
§ 23-656.
H. Prosecute violations of the state's workers' compensation program. A.R.S.
§ 23-929.
1. Prosecute offenses involving securities. A. R.S. § 44-2032(5).
J. Prosecute offenses arising out of any program administered by the
Department of Economic Security. A.R.S. § 41-1963.
K. Prosecute offenses arising out of the administration of the tax laws under
Titles 42 and 43 and bingo laws in Title 5. A.R.S. § 21-422.
L. Prosecute offenses related to the operation of pyramid schemes. A. R.S.
§ 44-1732.
M. Prosecute environmental crimes. A.R.S. §§ 49-263(F), -287, -924(B) and
-925.
N. Prosecute offenses related to bidrigging or state bidding or purchasing
laws. A.R.S. §§ 34-258 and 41-2616(C).
O. Prosecute offenses included in 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.
P. Recover fines levied for violations of the picketing and secondary boycott
laws. A.R.S. § 23-1324.
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Q. Investigate and prosecute offenses arising in connection with the operation
of the Arizona Health Care Cost Containment System program. A.R.S. § 41-1963.
R. Prosecute health care kickback and related frauds. A.R.S. § 13-3713.
S. Enforce laws related to conflicts of interest, A.R.S, §§ 38-501 to -510, and
financial disclosure by public officers, A,R.S. §§ 38-541 to -545. A.R.S. § 21-422.
T. Prosecute and defend in the Supreme Court all proceedings in which the
state or an officer thereof in his capacity is a party. A.R.S. § 41-193(A)(1).
U. At the direction of the Governor or when deemed necessary by the Attorney
General, prosecute and defend any proceeding in a state court other than the Supreme
Court in which the state or an officer thereof is a party or has an interest. A.R.S.
§ 41-193(A)(2).
v. Exercise supervisory powers over county attorneys of the several counties in
matters pertaining to that office and require reports relating to the public business
thereof and at the direction of the Governor, or when deemed necessary, assist the county
attorney of any county in the discharge of his duties. A.R.S. § 41-193(A)(4), (5).
W. Investigate campaign contribution limitation violation complaints for
criminal or civil action. A. R.S. § 16-905(L).
1.3.12 Power to Enforce the Consumer Fraud Act. The Attorney General
investigates violations of and 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
connection with the advertisement or sale of any merchandise or services. A.R.S.
§ 44-1522. The Attorney General may obtain injunctive relief, restitution and civil
penalties against any person found in violation of the Act.
As part of the Attorney General's investigative efforts under the Consumer
Fraud Act, the Financial Fraud Division receives and processes thousands of written
complaints each year from consumers. If the complaint falls within the jurisdiction of
another 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), it is the Financial Fraud Division's practice to immediately refer it to that
agency. On the other hand, if an agency should receive a complaint involving fraudulent
or deceptive practices which does not fall within the agency's jurisdiction or which the
agency does not have the legal means to resolve, the agency should refer the complaint to
the Financial Fraud Division of the Attorney General's Office. In addition, even if the
agency intends to pursue the matter, the agency should send to the Financial Fraud
Division informational copies of complaints involving fraud or deception. Although the
Attorney General's Office wishes to encourage cooperation between an agency and its
office, it does not want to encourage any agency to use referrals to the Financial Fraud
Division as a means of avoiding handling unwanted complaints or reducing an agency's
workload.
1.3.13 Power to Enforce the State Antitrust Law. A.R.S. §§ 41-191(D) and
44-1406(B) provide that the Attorney General shall enforce the provisions of the Arizona
Uniform State Antitrust Law, A.R.S. §§ 44-1401 to -1415. The Antitrust Act prohibits
agreements or actions that result in the restraint of trade or competition, including the
fixing of prices.
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A. R.S. § 44-1415 requiI es any state officer having knowledge of a violation of
the Antitrust laws to notify the Attorney General and report the violation with names of
witnesses by whom the violation can be proved.
In certain situations, state agencies by their actions can encounter serious
problems concerning conduct prohibited under this act. For a more detailed discussion of
this subject matter, you should read the comments contained in Chapters 5 and 9 of this
handbook in order to avoid these problems.
1.3.14 Power to Enforce the State Civil Rights Act. A.R.S. § 41-1401 requires
the Attorney General to enforce the state Civil Rights Act, A.R.S. §§ 41-1401 to -1484.
The Act specifically governs the violations of individual civil rights in the area of voting,
public accommodations and employment. The Act prohibits discrimination against the
following protected classifications: race, color, national origin, religion, sex, age and
physical handicap. The Attorney General is empowered to conduct investigations into the
violation of an individual's civil rights in these areas upon the receipt of a written
. complaint. If the Attorney General determines there is reasonable cause to believe that
the charge is true, he has the obligation to attempt to correct the violation by means of
conference, conciliation or persuasion. In certain situations, the Attorney General may
initiate a lawsuit to correct the violation or authorize the charging party to initiate such
a suit. See Chapter 3 regarding equal employment opportunity and affirmative action.
1.3.15 Power to Collect Debts. Pursuant to A.R.S. §§ 41-191(E) and -191.03,
the Attorney General has the power to initiate legal action outside this state in order to
collect debts owed to the state. This power was recently given to the Attorney General
and he is in the process of developing procedures to initiate such enforcement action.
1.3.16 Open Meeting Law Enforcement. The Attorney General may commence
suit to require compliance with or prevent violations of the Open Meeting Law, A.R.S.
§§ 38-431 to -431.09. See Chapter 7 regarding requirements of the Open Meeting Law.
1.3.17 Miscellaneous Powers and Duties. The Attorney General may release
state liens on real estate, A.R.S. § 33-724; bring actions to enjoin the illegal payment and
the recovery of state money illegally paid, A.R.S. § 35-212; inspect the records of state
tax collectors, A.R.S. § 42-108(D)(2)(b); approve interstate agricultural-horticultural
agreements, A.R.S. § 3-221; seek dissolution of corporations, A.R.S. § 10-094; 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; investigate extradition cases on request of the Governor, A.R.S. § 13-3844; act
as the state information agency under the ReCiprocal Enforcement of Support Act, A.R.S.
§ 12-1666; handle quiet title actions, A.R.S. § 12-1101; 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.
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 is
charged with the duty of coordinating the legal affairs of a multitude of clients, each of
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which is responsible to the public interest. In addition, the Attorney General, as a
constitutional officer and elected official, is also entrusted with the protection of the
public interest and the defense of the state constitution.
It is not feasible to permit all state employees to consult with the Attorney
General's Office at their option. It would be impossible to provide competent replies to
all pleas for assistance in a timely manner. Therefore, agencies must necessarily form
and utilize internal channels to route requests for legal assistance through officials who
can discern the appropriate issues requiring Attorney General action.
Because of the widely varying demands upon the Attorney General's staff,
priorities for doing work must be set. What might be regarded as having less priority,
when staff time is pressed to its limits, may be accorded more detailed attention when
staff time is not wholly committed to major problems. Setting forth here a scheme of
priorities is difficult because many factors may be involved. However, among those
things considered in establishing priorities for treatment of a request are its obvious
merit, its bearing upon the Attorney General's particular duty to the concerned agency,
and its need for attention compared to other existing needs.
The statutory powers and duties of the Attorney General, which form the basis
for representing and advising state agencies, are set forth above in Section 1.3.
Note that because the Attorney General is elected by the people of this state,
he has, in addition to his obligation to provide legal representation to state agencies, an
obligation to the people of the state to insure that the laws empowering state agencies to
act are carried out in a manner which is consistent with their intent as prescribed by the
Legislature. The Attorney General's resources are not available for the purpose of
helping any agency "get around" duties, obligations and laws. The Legislature establishes
the laws; the Attorney General is responsible for insuring that these laws are obeyed. If
you disagree with the laws imposed on you or your agency, do not ask the Attorney
General to ignore them; he will not assist you in this manner. The Legislature is the
proper body to address changes, alterations, or modifications to laws with which you
disagree or which you believe need to be changed. You are encouraged to consult with the
Legislative Council, which offers assistance to agencies in drafting proposed legislation.
At the same time, please apprise the Assistant Attorney General advising your agency of
your proposed legislation.
Although more than one attorney occasionally may provide legal services to an
agency, one attorney is primarily responsible for furnishing the services. Any legal
problems which an agency has should be first addressed to this attorney. If he is
unavailable, the Assistant Chief or Chief Counsel of the appropriate division should be
consulted. All requests for legal assistance should come through the head of the agency,
his immediate assistant or an individual designated by the agency head to request legal
assistance. Requests from individuals other than these persons may be denied.
The Attorney General will not perform administrative duties, maintain agency
records, decide matters of policy or make the decisions for an agency which the law
requires the agency to make. The Attorney General's role is to give legal advice. Once
the Attorney General has rendered his advice, his role in the decision-making process is
completed.
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The Attorney General will also assist the agency by providing legal advice and
representation in adjudicatory proceedings, licensing matters, rule making proceedings,
enforcement proceedings. and in personnel matters involving the discipline of employees.
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 1.10, "The Attorney
General's Guidelines for Representation of State Agencies."
1.4.2 Public Officers and Employees. The Attorney General cannot render
legal advice to public officers or employees on legal problems pertaining to personal
matters, matters not relating to their public duty or employment, or matters arising as a
result of conduct outside the scope of their employment, appointment or election.
The Attorney General is charged with investigating public corruption and
certain other illegal activities that may involve public officers or employees.
Consequently, he not only will not represent officers or employees accused of these
activities, but will vigorously pursue an investigation and prosecution of 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 Section 1.10, "The Attorney General's Guidelines for Representation of
State Agencies."
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. If
legal services are requested by a public officer for the purpose of providing advice or
representation to a member of the public, the Attorney General must refuse to provide
the requested service. See A.R.S. § 41-191(B).
1.4.4 Legislative Representation for Public Officers and Employees. If an
agency head determines that legislation needs to be enacted, assistance and guidance
should be sought from the Legislative Council, either directly or through an interested
member of the Legislature. You should also notify the Assistant Attorney General
assigned to your agency of your proposed legislation. The Attorney General may, in his
discretion, provide guidance and advice to your agency 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 authority of the Attorney General to
issue opinions is contained in A.R.S. § 41-193(A)(7), discussed in Section 1.3.8 above. As
stated in A.R.S. § 41-193(A)(7), the only official opinions of the Attorney General are
those that are written. They are also public records and must be made available to the
public. ~ A.R.S. §§ 41-193(A)(7) and -194(A). The Attorney General is required by law
to distribute a copy of each opinion to the Governor, the President of the Senate, the
Speaker of the House and any department or agency required to perform some function
necessary to implement the opinion. Pursuant to A. R.S. § 38-507, requests for opinions
concerning violations of Article 8, Chapter 3, Title 38 (conflicts of interest) are
confidential but the opinion issued is a matter of public record. Other opinion requests
not covered by a specific grant of confidentiality are considered public records and made
available to the public.
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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 must be signed or
endorsed by the director of a state department before they will be considered. They
should be directed to the Attorney General personally. The Attorney General assigns an
attorney to prepare a draft response for his review, and upon his review and concurrence,
issues the response to the requesting party. Although the attorney assigned to represent
the agency making the request usually prepares a draft response, this is not the case in all
instances. Every request is assigned a number for reference (an "R" number, ~
R81-001), and receipt of the request is acknowledged informing the requestor of the
reference number assigned. 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, ~
181-001) by which it is permanently filed. You should always refer to the "R" number
when seeking information regarding a pending opinion and to the "I" number for reference
to an issued opinion.
1.5.3 Scope of Opinions. Oral legal advice does not constitute an official
opinion of the Attorney General; only formal written opinions signed by the Attorney
General rise to this stature. This does not mean, however, that an agency cannot rely on
oral advice from the attorney assigned to represent the agency; it merely means that such
advice is not to be construed as the official opinion of the Attorney General himself. Oral
advice is necessary for the day-to-day operation of the agency, and using written opinions
to furnish this service is impossible. Written opinions are necessary when significant legal
issues arise that cannot clearly be resolved without substantial legal research.
Written opinions are issued on questions of law relating to the official duties of
the requesting party. OpiniOns must be confined to questions of law, not of fact.
Ariz.Atty.Gen.Op. 180-231. Opinions will not be issued on matters pending before a
court. Ariz.Atty.Gen.Op. 181-137. The Attorney General will not pass upon the
constitutionality of legislation enacted by the Arizona Legislature except in cases where
there exists a compelling need for such an opinion.
The Attorney General does not respond to opinion requests which have been
prompted by constituents or third parties regarding legal questions they would like to have
answered. The Attorney General has no legal authority to issue opinions in response to
such requests and would appreciate your not asking him to do so. Ariz.Atty.Gen.Ops.
178-83, 178-81.
OpiniOns of the Attorney General are advisory and they do not have the same
effect as decisions of a court of law. Green v. Osborne, _ Ariz. _, 758 P.2d 138
(1988); 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 official
capacity in good faith reliance on a written Attorney General Opinion. A.R.S. § 38-446.
1.5.4 Education Opinions. The Attorney General, within 60 days of receipt,
must concur. 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. §§ l5-253(B) and -1488(H). Governing board
members shall have no personal liability for acts done in reliance on an opinion with which
the Attorney General concurs or declines to review or on a revised opinion of the
Attorney General. A.R.S. § l5-38l{B).
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The Attorney General has only the authority to review education opinions and
does not accept opinion requests directly from school district governing boards.
1.5.5 Opinion Summaries. The Attorney General periodically issues summaries
of recently issued opinions. This publication contains a reference to the number of the
opinion, the person or agency requesting it, a citation of any statutes, constitutional
provisions or laws construed or relied on and a brief summary of the conclusion of the
opinion. They are published each month by the Secretary of State in the Administrative
Register.
1.6 Role of the Attorney General in the Adoption and Certification of
Administrative Rules. The authority of the Attorney General in connection with the
adoption of rules by state agencies is set forth in A.R.S. § 41-1041. A more detailed
explanation of the procedure for adopting, amending or repealing rules is contained in
Chapter 11.
The Attorney General does not prepare rules for state agencies. That is the
responsibility of each agency. Occasionally, because of pending litigation, legislation
affecting all state agencies similarly or issues of statewide application, the Attorney
General will suggest the adoption of rules by an agency.
Generally, the Attorney General will advise the agency on the proper
procedures to follow in promulgating rules, informally review draft rules to identify
obvious legal defects or problems, and formally review the rules for certification pursuant
to A.R.S. § 41-1041. The Attorney General has the power to certify rules of agencies
which are required to adopt rules in compliance with the Administrative Procedure Act,
A.R.S. §§ 41-1001 to -1055, and he will refuse to certify or review rules of other
governmental entities. See the definition of "agency" in A.R.S. § 41-1001(1).
1.7 Role of the Attorney General in the Approval of Contracts. Leases and
Intergovernmental Agreements.
1.7.1 Contracts and Leases. With the exception of intergovernmental
agreements discussed in Section 1.7.2 below, there is no requirement mandating that the
Attorney General review contracts, agreements or leases entered into by state agencies.
However, the Attorney General has the authority to perform this function based on A.R.S.
§ 41-192 and may do so at the request of any state agency.
The Attorney General will assist agencies in the preparation of contracts,
agreements or leases when necessary. Because state agencies often engage in activities
which can utilize a certain written agreement repeatedly, most agencies have contracts
used in the past which only occasionally need updating to meet current needs.
When an original agreement needs to be drafted to cover a new area, the
Attorney General should be consulted because, unlike the private sector, contracts
concerning governmental agencies may require special clauses pursuant to statute,
constitution or case law. An example of one statute which mandates certain language to
be included in state contracts is A.R.S. § 38-511(G) regarding cancellation. That statute
authorizes the Governor to cancel 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 consultant for any
other party to the contract during the period of time the contract or any extension of the
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contract is in effect. Another example is A.R.S. § 12-1518(C) which requires all
contracts entered into by state agencies to contain a clause that the parties agree to
arbitrate certain disputes. In the absence of specific legislative authority, such as
non-lapsing appropriations or revolving funds, an agency cannot legally bind itself to an
agreement for the payment of public funds beyond the end of any current fiscal year.
The Assistant Attorney General assigned to represent your agency or the Chief
Counsel of the Civil Division should be consulted for review or drafting of major
agreements or for further information with regard to mandatory requirements for state
contracts. Agencies are strongly encouraged to seek the assistance of the Attorney
General in the early phases of significant contract procurements.
A.R.S. § 41-791.01 provides that the Department of Administration shall review
an architectural, engineering and construction contracts prior to submission to the
Attorney General. A.R.S. § 41-792 also requires all state leases of buildings to be
approved by the Director of the Department of Administration if the square foot dollar
cost exceeds the annual average figure established by the Lease Cost Review Board.
Consequently, the Attorney General will decline to review any such contracts or leases
that do not have the prior review of the Department of Administration, unless the
contract is exempt from such review under A.R.S. § 41-790.01.
A.R.S. §§ 41-2533 and -2535 require sealed competitive bidding for
expenditures exceeding $10,000. Procurement requirements are more completely
explained in Chapter 5.
1.7.2 Intergovernmental Agreements. Intergovernmental agreements are
contracts between two or more public agencies for the joint exercise of powers common
to the agencies, for joint or cooperative action or for services. Public agencies are
defined to include the federal government or any department or agency thereof, an Indian
Tribal Council, the state and all its departments, agencies, boards, and commissions,
counties, school districts, cities, towns, all municipal corporations and any other political
subdivision of this state or an adjoining state. The statutory sections controlling
intergovernmental agreements are A.R.S. §§ 11-951 to -954. A.R.S. § 11-954 states that
these statutes do not confer any additional power or authority on any agency that the
agency does not already possess under other separate provisions of the law. In other
words, the statutes merely detail the method of entering into these agreements and do not
give an agency independent authorization to act.
A.R.S. § 11-952 applies only to contracts involving the joint exercise of a power
common to the contracting parties. 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 pursuant to which they agree to allocate responsibilities
between them. Sgg Ariz.Atty.Gen.Ops. 186-084, 183-057, 179-079. Where there is no joint
exercise of powers common to the agencies involved, the requirements of A.R.S. § 11-952
do not apply to the agreement. The furnishing of services by one agency to another
normally does not involve the exercise of joint powers, and therefore the contract entered
into for this purpose would not be subject to the requirements of A.R.S. §§ 11-951 to -954.
The Attorney General is required by A.R.S. § 11-952(D) to review
intergovernmental agreements or contracts involving a state agency, board or commission
to determine "whether the said agreement is in proper form and is within the powers and
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authority granted under the laws of this state to such public agency, board or
commission." A.R.S. § 11-952(D). Accordingly, the Attorney General does not have
authority to review and approve or disapprove intergovernmental agreements that do not
involve at least one state agency as a party to the agreement.
Procedurally, the agency should submit the intergovernmental agreement to the
Attorney General for his determination before it is signed. The agency should also submit
to the Attorney General copies of the appropriate action taken by the agency, by
resolution or otherwise, that authorizes the future execution (signing) of the agreement.
The authority to sign an intergovernmental agreement may not be delegated by an agency
head or board unless the agency or board is specifically authorized by statute to delegate
its contract-related duties. Ariz.Atty.Gen.Op. 180-92. The agency should provide the
Attorney General with an adequate and reasonable opportunity to review and propose
necessary changes to the agreement.
The following is a checklist of items required by the Attorney General for
approval of intergovernmental agreements:
1. Identify each public agency which is a contracting party by correct statutory
title and indicate whether it is a state, county, city, town or other public or municipal
agency or instrumentality.
2. Place into the recitals or elsewhere in the agreement, the exact statutory
references under which each contracting party is empowered or authorized to exercise the
powers contemplated.
3. State the duration preferably by specifying the beginning date and the
ending date of the agreement.
4. State the purpose or purposes to be accomplished.
5. State the manner of financing the undertaking and where applicable, state
the manner of establishing and maintaining a budget therefor.
6. State the method or means of partial or complete termination.
7. Where the property is to be acquired solely for the accomplishment of the
purpose or purposes of the agreement, provide a means or method for disposing of such
property upon termination or completion.
8. Provide in the agreement or contract that it shall be filed with the
Secretary of State and that it shall not become effective at least until that filing occurs.
9. The governing board of the contracting authority must authorize the future
execution (signing) of the contract or agreement before it is submitted to the Attorney
General for his determination whether it is "in proper form and is within the powers and
authority granted" by law. In other words, none of the parties should sign the agreement
until after it has been referred to the Attorney General for review and approval.
If the Attorney General determines that the agreement is "in proper form and is
within the powers and authority granted" by law, this determination will be noted on the
agreement. All documents will then be returned to the party from whom the Attorney
General received them. If the Attorney General determines that the agreement is not in
proper form or is not within the powers and authority granted by law, all documents will
be returned to the party from whom they were received with a letter pointing out the
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deficiencies. After the Attorney General has made a favorable determination, the parties
should then execute (sign) the agreement or contract and file it with the Secretary of
State.
1.8 Investigative Services Within the Department of Law. Any requests that
your agency has for investigative assistance from the Attorney General should be
directed, in writing. to the Assistant Attorney General assigned to represent your agency
or the Chief Counsel of the Special Investigations Division specifying in detail the nature
and object of the investigation needed. An acceptable format for this request is shown in
Form 1.2 attached to this Chapter. The Chief Counsel will evaluate the request and
determine whether the Attorney General has the capability of assisting your agency and
will so notify you.
1.9 Procedure for Receipt of Service of a Summons. Complaint. Subpoena or
Other Document. The Arizona Rules of Civil Procedure prescribe the method for service
of summons, complaints, subpoenas and other documents. These rules parallel the Federal
Rules of Civil Procedure with respect to service of summons and complaints by
authorizing both personal service and alternate service by mail in state. IT IS
IMPORTANT, FOR THE REASONS SET OUT BELOW, THAT AGENCIES AND AGENCY
PERSONNEL DO NOT "ACCEPT" DOCUMENTS THAT ARE TO BE SERVED UPOi<J THE
STATE OF ARIZONA, OR ANY AGENCY, BOARD OR COMMISSION OF THE STATE.
1.9.1 Service of Summons And Complaint Against the State: Personal Service:
Rule 4(d). Rules of Civil Procedure. Personal service of a summons and complaint upon
the Attorney General is provided for in Rule 4(d) , Arizona Rules of Civil Procedure, as
fonows:
4(d) Summons; service; minors; nonresident minors. The
summons and complaint shall be served together. The plaintiff shall
furnish the person making service with such copies as are
necessary. Service shall be make as follows:
7. Upon the state, by delivering a copy of the summons and of
the complaint to the attorney general.
8. Upon a county or municipal corporation or other
governmental subdivision of the state subject to suit, by delivering a
copy of the summons and of the complaint to the chief executive
officer. the secretary. clerk. or recording officer thereof.
(Emphasis added.)
Any person attempting personal service of a SUMMONS and COMPLAINT upon
the "STATE OF ARIZONA" or upon any "DEPARTMENT," "AGENCY," "COMMISSION" or
"BOARD" of the state at the Phoenix office shall be directed to the receptionist's desk
located on the first floor at the main entrance to the building; and, at the Tucson office
shall be directed to the receptionist's desk located at the front window. These are the
only locations within the Phoenix and Tucson offices authorized to receive personal
service of process. The receptionist shall be authorized only to receive (not accept)
service of process for the STATE OF ARIZONA or any DEPARTMENT, AGENCY, BOARD
or COMMISSION of the state.
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1.9.2 Service of Process for Individuals. The Receptionist has NO AUTHORITY
to receive or accept service of process for individual officers, directors or employees of
the state or this office, provided, however, that if the individual is an employee of the
Attorney General's Office, the receptionist shall attempt to contact the employee by
phone, and the employee may, after personal notice by the receptionist, specifically
authorize the receptionist to receive service of process on his or.her behalf or make other
arrangements for receiving service of process.
If both the STATE or a DEPARTMENT, AGENCY, BOARD or COMMISSION of
the state and an officer or employee are named, the receptionist or other designated
relief person may receive the summons and complaint for the ST ATE and the
DEPARTMENT, AGENCY, BOARD or COMMISSION only and must direct the process
server to serve the individual directly unless the employee is an employee of the Attorney
General's Office and the procedure outlined above has been followed.
If neither the STATE nor any DEPARTMENT, AGENCY, BOARD or
COMMISSION of the state is named but a state officer or employee is named, the
receptionist must refuse receipt of the summons and complaint and direct the process
server to serve the individual directly unless the employee is an employee of the Attorney
General's Office and the procedure outlined above has been followed.
If a state public officer or employee is personally served with a summons and
complaint that involves acts concerning official duties, even if that person is named in his
private capacity, the Attorney General's Office should be notified immediately and be
provided a copy of the documents. The Attorney General's Office will then determine
whether it may provide representation to the officer or employee pursuant to A.R.S.
§ 41-621. See Chapter 13.
1.9.3 Alternate Service by Mail: Rule 4(e)(7), Rules of Civil Procedure.
Alternate service by mail of a summons and complaint is provided for in Rule 4 (e)(7) of
the Arizona Rules of Civil Procedure as follows:
4 (e)(7) Alternate service by mail within the state
(a) Alternatively, a summons and complaint may be served
within the state upon a defendant of any class referred to in
paragraphs (1), (6), (7) [the state], (8) [other subdivisions of the
£1a1gJ and (9) of Section 4(d) of this Rule by mailing a copy of the
summons and of the complaint. by first-class mail. postage prepaid.
to the person to be served, together with two copies of a notice and
acknowledgment of receipt of summons and complaint, and a return
envelope, postage prepaid, addressed to the sender.
(b) The notice and acknowledgment of receipt of summons and
complaint shall be executed under oath or affirmation, and returned
to the sender. Service is complete. and the time periods for filing a
responsive pleading commence to run. from the date upon which the
acknowledgment of receipt is executed. Upon receipt of the
acknowledgment, the sender shall cause it to be filed with the court
in which the matter is pending.
I-IS
(c) If no acknowledgment of receipt of summons and complaint
under this subdivision is received by the sender within twenty (20)
days after the date of mailing, service of such summons and
complaint may be made as otherwise provided in this Rule. Unless
good cause is shown for not doing so, the court shall order the
payment of the costs of personal service by the person served if
such person does not complete and return, within twenty (20) days
after mailing, the acknowledgment of receipt of summons and
complaint.
(Emphasis added.)
Because the time for filing a responsive pleading begins to run from the date
acknowledgment of receipt is executed, and because the Attorney General is the officer
who must be served on behalf of the state IT IS IMPORTANT THAT AGENCIES AND
AGENCY PERSONNEL DO NOT "ACCEPT" MAILED DOCUMENTS THAT ARE TO BE
SERVED UPON THE STATE OF ARIZONA, OR ANY AGENCY, BOARD OR COMMISSION
OF THE STATE.
If any agency receives by mail a summons and complaint and a form for
acknowledgment of receipt of service of process that is intended to be served upon the
State of Arizona, or any agency, board or commission of the state, it should return the
entire packet to the sender. DO NOT FILL OUT the acknowledgment of receipt of
service of process. An accompanying letter along the lines of the following is suggested:
You have attempted service of process on the State of Arizona
by mailing documents to this office.
Please be advised that only the Attorney General may accept
service of process for the state. The address for service of process
by mail is:
Administration Division
Office of the Attorney General
1275 West Washington
Phoenix, Arizona 85007
Accordingly, I am returning all of the documents you mailed to
us without executing the acknowledgment of receipt of service of
process.
1.9.4 Procedure for Alternative Service of Summons and Complaint by Mail.
Any Attorney General's Office personnel in the Phoenix office who receives a summons
and complaint served by mail under the alternative provisions of Rule 4(e)(7), Arizona
Rules of Civil Procedure, shall immediately forward the summons and complaint and all
copies thereof together with the copies of the notice and acknowledgment of receipt of
summons and complaint and the return envelope to the Administration Division
receptionist located in the northeast corner of the second floor of the building and in the
Tucson office to the receptionist or designated relief personnel. These will be the only
locations within the Phoenix and Tucson Offices authorized to receive alternative service
of process by mail. All summons and complaints received in Phoenix by any other
personnel or division of the office under the rules authorizing alternative service of
process by mail shall be immediately forwarded to the Administration Division
receptionist and in Tucson to the office receptionist for processing.
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As with personal service of process the receptionist shall be authorized only to
receive service of process by mail for the "STATE OF ARIZONA" or "DEPARTMENT,"
"AGENCY," "BOARD" or "COMMISSION" of the state. She or he has NO AUTHORITY to
receive service of process by mail for individual officers, directors or employees of the
state or of this office.
1.9.5 Service or Receipt of Subpoenas. The receptionist in the Phoenix and
Tucson offices have NO AUTHORITY to accept or receive SUBPOENAS for any state
employee, any employee of this office, or any state agency, board, commission or officer.
The receptionist must tell the person attempting to serve the subpoena that he must serve
it personally upon the individual named in the subpoena. If the subpoena names the
"custodian of records for the Attorney General's Office," the receptionist shall direct the
person attempting to serve the subpoena to the Chief Assistant Attorney General in the
Phoenix office.
1.10 Attorney General's Guidelines for Representation of State Agencies.
1.10.1 Preamble and Scope. In the course of performing his duties as the chief
legal officer of state government and legal advisor to all state agencies, the Attorney
General from time to time may be 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. Often, the Attorney
General will be called upon to participate as an advocate and also to act as an advisor to
the hearing officer or decision-making officer or body of the agency on evidentiary and
procedural matters that may arise during the course of a proceeding. The Attorney
General also may be required to originate civil or criminal enforcement actions against
public officers for whom he also serves as legal counsel. Finally, the Attorney General
may serve on a board or commission before which he is also required to appear as an
advocate. Guidelines for dealing with these situations are presented below.
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. In carrying out that constitutional mandate, the
Legislature has prescribed the duties of the Attorney General. See prinCipally A.R.S.
§§ 41-192 to -193. Essentially, those statutes mandate that the Attorney General shall
prosecute and defend in courts of the state and the United States all proceedings to which
the state is a party, and shall be the "chief legal officer of the state" and serve as legal
advisor to all state agencies. A.R.S. §§ 41-192(A) and -193. With limited statutory
exceptions (Industrial Commission, Board of Regents, Arizona Corporation Commission,
Residential Utility Consumer Office, Department of Water Resources, Arizona Power
Authority, Board of Regents, Arizona Corporation Commission and Arizona Health Cost
Care Containment System Administration), agencies other than the Attorney General are
forbidden from employing legal counselor spending state monies for legal services.
A.R.S. §§ 41-192(E), -192.01 and 36-2903(0).
Except as otherwise provided by the Legislature, the Attorney General has a
statutorily mandated duty to conduct the legal affairs of state government. As an elected
state official, a constitutional official and the state's "chief legal officer," the Attorney
General's broad responsibility of representing 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, and officers and
1-17
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 law as
prescribed by the Constitution and the Legislature. In this regard the Attorney General is
entrusted with the protection of the public's interest while coordinating the legal affairs
of a multitude of agencies of the state.
The Arizona Rules of Professional Conduct ("Ethical Rules"), which became
effective on February 1, 1985, expressly recognize the unique and varying role of
government lawyers such as the Attorney General. 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 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 intergovernmental 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.
Arizona Rules of the Supreme Court, Rule 42 (emphasis added).
In a very real sense the Attorney General has only one client, the government
of the State of Arizona. Although certain government functions may be aSSigned to
different departments, all such departments conduct the government's business and the
government lawyers' first obligation is to the government. The Ethical Rules recognize
that the government lawyer in reality represents not a particular constituent state agency
or department, but rather the state government as a whole. This principle is expressly
articulated in a portion of the Comment to ER 1.13, which discusses government lawyers'
ethical obligations when an organizational entity, such as the State of Arizona, is the
client:
The duty defined in this rule applies to governmental
organizations. However, when the client is a governmental
organization. a different balance may be appropriate between
maintaining confidentiality and assuring that the wrongful official
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 and regulation.
Therefore, defining precisely the identity of the client and
prescribing the resulting obligations of such lawyers may be more
difficult in the government context. Although in some
circumstances the client may be a specific agency, it is generally
the government as a whole. For example, if the action or failure to
1-18
act involves the head of a bureau, either the department of which
the bureau is a part or the government as a whole 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. This
rule does not limit that authority.
Arizona Rules of the Supreme Court, Rule 42 (emphasis added).
Thus, the special constitutional status and statutory responsibilities of the
Attorney General cannot be ignored or disregarded in defining the representational status
and obligations of the Attorney General.
1.10.2 Attorney General's Representational Role.
1.10.2.01 Attorney General's Relationship to the State. its Agencies and
Employees. The Attorney General represents the State of Arizona, acting through its
constituent agencies, departments and employees. Where a representative of the
Attorney General's Office provides a public official or employee with legal advice
concerning the employee's official duties, no personal attorney-client relationship arises
between the individual employee and the lawyer. The state may, however, assert
privilege on behalf of the state with regard to communications between a representative
of the Attorney General's Office and the state's constituent officials and employees.
1.10.2.02 Adverse Interests Other than Enforcement Actions. When the
Attorney General has adverse interests with another state agency other than in cases
covered by 1.10.2.03, the Attorney General will not represent the agency on the matter in
controversy. The Attorney General will continue, however, to represent the agency in all
other matters as required by law. The agency may obtain outside counsel through the
Attorney General to represent it in the matter in controversy. The principles set forth in
Section 1.10.5 will apply in such circumstances.
1.10.2.03 Enforcement Actions Against State Officials. When the Attorney
General is contemplating or has instituted civil or criminal proceedings against a state
agency, public official or employee, the agency, public official or employee will not be
entitled to public representation unless expressly allowed by law.
1.10.2.04 Agency Requests for Actions or Defenses that Are Not Legally
Supportable or for Delay. If an agency, officer, or employee proposes to pursue an action
or maintain a defense which the Attorney General determines is not legally supportable or
has no substantial purpose other than delay, the agency shall be advised of such fact and
that the Attorney General will not pursue the matter on the agency's behalf. In such
cases the agency will not be entitled to public representation.
1.10.2.05 Comments.
Attorney General's Relationship to the State. its Agencies and Employees. The
Attorney General serves the people of Arizona as the attorney for the state and has the
sworn obligation to uphold the constitution and laws of the state. As the state's lawyer,
the Attorney General represents the constituent entities of the state including its
agencies, officers and employees provided that such agencies, officers and employees are
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acting as authorized by law in their official capacities and within their prescribed
powers. Agencies, officers and employees acting in an individual capacity or in an
unlawful manner or beyond their prescribed powers cannot, and will not, be represented by
the Attorney General and should not assume or expect such representation. In fact, the
Attorney General has a duty on behalf of the state to investigate and take appropriate
action where there is any claim of illegality by state officers or employees. United States
v. Troutman, 814 F.2d 1428 (lOth Cir. 1987).
Agencies, officers and employees acting lawfully can expect that the Attorey
General will maintain confidential communications. They should be aware, however, that
such confidences are maintained on behalf of the state and its people and may be
disclosed where it is in the best interests of the state to to do. Thus, 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.
Although the state is a distinct legal entity, it cannot act except through its
officers, employees and other constituents. As noted above, the Attorney General
represents the State of Arizona, acting through its constituent agencies, departments and
employees. This does not mean that state officials and employees or other constituents
are the individual clients of the Attorney General. Thus, an employee's position within
the agency does not create an attorney-client relationship between the employee and the
Office of the Attorney General. Where a representative of the Attorney General's Office
provides an employee with legal advice concerning the employee's official duties, no
attorney-client relationship arises between the individual employee and the lawyer.
Because the official or employee who on behalf of the state or agency of the state obtains
legal advice from the state's lawyers is not the "client," there is no individual
attorney-client privilege which may be asserted by the employee. The state may,
however, assert privilege as to the communication between a representative of the
Attorney General's Office and the state's constituent officials or employees.
Communications between the lawyer and the public official or employee are not
privileged against disclosure to other state or public officials. As a result, in an adversary
proceeding in which the official or employee is called as a witness, the state's lawyer who
had communications with the official or employee, or another lawyer in the Attorney
General's Office, may cross-examine the witness-official or witness-employee. Legal
communications between the Attorney General and its agencies and employees regarding
official business of the state shall not be disclosed to private parties without the prior
agreement of the Attorney General. Failure by an agency and employee to first seek
approval of the Attorney General before disclosing legal communications to third parties
can jeopardize the interests of the state.
The issue of preserving communications between a public official and/or
employee and the Attorney General as confidential and of asserting or waiving the
attorney-client privilege as to a private party can be based solely on the best interests of
the state as the represented client. In all criminal and enforcement matters
independently 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 specific public agency as to the best interests of
the state as a whole, the Attorney General shall present the matter to the Governor for
review and resolution.
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Representatives of the Attorney General's Office owe a fiduciary duty to the
government of the State of Arizona as the client and not to an individual official or
employee. ER 1.13. 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. In addition, the Attorney
General may take official action against or prosecute the official or employee who has
committed or intends to commit the illegal act or fraud.
These principles are embodied in the Comment to ER 1.13 which, in part, states
the following:
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 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.
Arizona Rules of the Supreme Court, Rule 42 (emphasis added).
The Ethical Rules do provide that a lawyer representing an organizational
entity, such as the state, may also represent its officers, employees, or other
constituents, so long as consent to such representation with respect to the state's
interests 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. This is consistent with A.R.S.
§ 41-192.02 which authorizes the Attorney General in his 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) consent
to dual representation, the Attorney General will undertake such representation only so
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 and/or
employee. If prior to undertaking dual representation a good faith judgment cannot for
whatever reason be made that an actual or apparent conflict does not exist, the state
shall when appropriate provide for independent legal counsel to the individual public
official or employee. Public officials will be notified in writing of the Attorney General's
decision regarding representation and should understand and will be informed that dual
representation of necessity will result in the disclosure to the state of information
communicated by the public official to the Attorney General.
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Adverse Interests Other than Enforcement Actions. In several types of
proceedings the Attorney General is authorized to appear as a party contestant or appeal
a decision from the agency which is otherwise represented by the Attorney General.
Where the Attorney General assumes such a posture, Section 1.10.1.02 will be followed.
Where the Attorney General determines that the State of Arizona may be
injured by an illegal or unlawful course of action the Attorney General has an obligation
to proceed as is reasonably necessary to protect the best interests of the state. This
ethical obligation of the Attorney General to his client, the State of Arizona, is explained
by the Ethical Rules:
If a lawyer for an organization knows that an officer, employee
or other person associated with the organization is engaged in
action, intends to act or refuses to act in a matter related to the
representation that is a violation of a legal obligation to the
organization, or a violation of law which reasonably might be
imputed to the organization, and is likely to result in substantial
injury to the organization, the lawyer shall proceed as is reasonably
necessary in the best interest of the organization.
ER 1.13(b), Arizona Rules of the Supreme Court, Rule 42. Because the public interest is
involved, the Comment to the Ethical Rule also provides:
[I]n 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. This rule does not limit that authority.
Arizona Rules of the Supreme Court, Rule 42.
Enforcement Actions Against State Officials. The Attorney General is
responsible for enforcing certain state laws applicable to state officers and employees.
See, ~, A.R.S. §§ 35-212 (illegal payment of public monies); 12-2041 (quo garranto).
These enforcement actions may be either criminal or civil. Again, the Comments to the
Ethical Rules provide guidance in these circumstances:
[W]hen the client is a governmental organization, a different
balance may be appropriate between maintaining confidentiality and
assuring that the wrongful official 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 and regulation.
Arizona Rules of the Supreme Court, Rule 42. Thus, where a civil or criminal
enforcement action has been instituted or is contemplated, Section 1.10.2 will be followed.
Agency Requests for Actions or Defenses that are not Legally Supportable or
for Delay. Finally, the Attorney General from time to time may be requested by a state
agency to assert a claim or defense which the Attorney General believes is not legally
supportable or has no substantial purpose other than delay. The applicable Ethical Rules
preclude the Attorney General from pursuing such claims or defenses. ERs 3.1, 3.2. The
1-22
Supreme Court has directed all Arizona lawyers to pursue only meritorious claims and
contentions, and to expedite litigation. Accordingly, the Attorney General will refuse to
assert any claim or defense on behalf of a state agency which the Attorney General
determines is not legally supportable or has no substantial purpose other than delay. See
Section 1.10.2. In such cases, no employee of the Arizona Attorney General will assist the
agency in pursuing such a claim or defense or in obtaining counsel to assist in such
endeavor.
1.10.3 Multiple Representation of State Agencies.
1.10.3.01 Agency Representation. To the extent of available resources, the
Attorney General shall represent all state agencies, except an agency exempt from such
representation by statute or as provided in these guidelines.
1.10.3.02 Non-Judicial. When two or more state agencies have adverse
interests and the dispute between the agencies is not part of a pending quasi-judicial or
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 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 through the Attorney General. The
principles set forth in Section 1.10.5 will apply in such circumstances.
1.10.3.03 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 in which case the Attorney General shall continue to
represent all agencies so consenting. Continued representation of both agencies shall be
provided by different Assistant Attorneys General in accordance with Section 1.10.4. If
both agencies do not consent, the Attorney General will decide which agency to represent
and the other agency may obtain legal counsel through the Attorney General. The
principles set forth in Section 1.10.5 will apply in such circumstances.
1.10.3.04 Judicial Proceedings. The Attorney General will not represent two
state agencies in judicial proceedings when the agencies are on opposite sides of the
litigation. In those cases the Attorney General shall determine which agency's position is
correct and shall continue to represent that agency in the particular matter. The agency
that will not be represented by the Attorney General may obtain legal counsel only in
accordance with Section 1.10.5.
1.10.3.05 Comments. The several departments and agencies of the state
occasionally are in disagreement. It is these intragovernment disputes that pose potential
problems for the government's lawyer-the Attorney General. The Arizona Supreme
Court appears to be of the view that where the Legislature has expressly authorized one
or both of the agencies to bring the dispute before the judicial branch for resolution, then
the contesting agencies may do so. State of Arizona ex reI. Frohmi11er v. Hendrix, 59
Ariz. 184, 124 P.2d 768 (1942); State Land Dept. v. State ex reI. Herman, 113 Ariz. 125,
547 P.2d 479 (1976). This position appears to be consistent with the commentators and
decisions of other state courts. The area of disagreement concerns the ability of the
Attorney General to advise and represent both contestants ethically.
1-23
As early as 1942 the Arizona Supreme Court considered whether the
Legislature, under the statutory scheme then prescribing the duties of the Attorney
General, intended that the state departments could be represented in legal matters only
by the Attorney General or his assistants. State of Arizona ex reI. Frohmiller v. Hendrix,
59 Ariz. 184, 124 P.2d 768 (1942). In concluding that the Legislature had not so intended
in every instance, the Frohmi1ler court commented on the propriety of the Attorney
General representing two contesting public officers in litigation:
It not infrequently happens that one public officer may take a
certain view of the law, while another may construe it in a contrary
manner, and litigation may properly be commenced to determine the
true construction. The attorney general obviously cannot properly
represent both officers. He must choose which side he will take. If
the other officer is not permitted to secure competent counsel to
represent his point of view, it may be that the court will be misled
into rendering a wrong judgment. Further, since the attorney
general has no discretion to determine whether suits like the present
one be commenced or maintained by the auditor, it would be
unreasonable to hold that section 4-503, supra, was intended by the
legislature to deny the officer, whose discretion it was to determine
whether the suit should be instituted and maintained, the right to be
represented by counsel whom she thought could and would present
her view of the law, in a manner satisfactory to her, to the court.
59 Ariz. at 196-197, 124 P.2d at 774 (emphasis in original).
The Arizona Supreme Court again raised the issue of the Attorney General's
representation of state officers with conflicting views in a footnote to the court's opinion
in Arizona State Land Dept. v. State ex reI. Herman, 113 Ariz. 125, 126 n. *, 547 P.2d 479,
480 n. * (1976):
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 Department of Administration, 111 Ariz.
279, 528 P.2d 623 (1975). 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.
Implicit in this statement may be the court's view that the ethical rules preclude the
Attorney General from representing two state agencies whenever they are on opposite
sides of a controversy. The court, however, has not had the opportunity with the benefit
of briefs and argument to reconsider its language in cases such as Frohmiller and the
applicability of the recently-enacted ethical rules to the Attorney General when he
performs his legislatively-mandated duties.
1-24
The highest courts of two other states have considered the role of the Attorney
General in representing state agencies on opposite sides of a controversy. In Connecticut
Commission on Special Revenue v. Connecticut Freedom of Information Commission, 174
Conn. 308, 387 A.2d 533 (1978), the Connecticut Supreme Court considered a case in
which two assistant attorneys general represented state agencies both as appellant and
appellee with conflicting positions. In overruling a lower court decision that such dual
representation violated Canon 5 of the Code of Professional Responsibility and the
Disciplinary Rules 5-105(A), (B) and (D) thereunder, which the lower court found took
precedence over the Attorney General's duties prescribed by Connecticut statute, the
Connecticut Supreme Court stated:
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 underlying Canon 5 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
FOIC and COSR 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 10gicaUy 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.
1-25
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 appearance of the attorney
general were entered for the state of Connecticut and appearance
for the separate agencies entered by assistant attorneys general
particularly assigned as counsel for the separate agencies.
387 A.2d at 537-539 (citations omitted).
Similarly, in Environmental Protection Agency v. Pollution Control Board, 69
I1l.2d 394, 372 N.E.2d 50 (1977), the Illinois Supreme Court held that the Attorney General
did not have such an interest in a controversy between the appellant and appellee state
agencies, both of which he represented, so as to require the appointment of special
counsel. In describing the duties of the Illinois Attorney General and the statutory
scheme for representation of the State of Illinois, the court stated:
As the chief legal office of the state, the Attorney General has
the constitutional duty of acting as legal advisor to and legal
representative of state agencies. He or she has the prerogative of
conducting legal affairs for the state. The effect of this grant of
power to the Attorney General is that Illinois is served by a
centralized legal advisory system. There are, arguably, at least two
reasons for this centralization. First, private counsel for state
agencies are expensive. (In the instant case, the Board argues that
the fees of its private counsel should come from the Attorney
General's budget.) Second, centralization is more efficient.
Whatever the merits of these arguments, it remains true that the
duties of the Illinois Attorney General encompass advising and
representing state agencies.
372 N.E.2d at 51-52.
As the rationale for its decisions, the Illinois Supreme Court went on to say:
In addition, although an attorney-client relationship exists between
a state agency and the Attorney General, it cannot be said that the
role of the Attorney General apropos of a state agency is precisely
akin to the traditional role of private counsel apropos of a client.
Indeed, where he or she is not an actual party, the Attorney General
may represent opposing state agencies in a dispute.
The Attorney General's responsibility is not limited to serving
or representing the particular 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. It
1-26
seems to us that if the Attorney General is to have the unqualified
role of chief legal officer of the state, he or she must be able to
direct the legal affairs of the state and its agencies. Only in this
way will the Attorney General properly serve the state and the
public interest.
372 N.E.2d at 52-53 (citations omitted).
In view of the case law and ethical rules recogmzmg the special role and
functions performed by government attorneys, the Arizona Attorney General shall
continue to represent the state and all of its agencies in accordance with these
guidelines. The Attorney General will not represent two state agencies on opposite sides
in a judicial proceeding unless the Arizona Supreme Court expressly permits multiple
representation in court. See Section 1.10.3.04. With respect to all other representation,
concern regarding appearances will be minimized by the use of separate assistant
attorneys general without common direct supervision.
1.10.4 Agency Adjudicatory Proceedings.
1.10.4.01 Advocate. An assistant attorney general participating as an advocate
in a proceeding before an administrative tribunal shall not serve as an advisor to the
tribunal respecting that proceeding during its pendency. 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.
1.10.4.02 Selection of Advisor. If the agency requests the assistance of the
A ttorney 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. The Solicitor General shall designate a qualified assistant attorney
general from either his division or any other division, except the division 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.
1.10.4.03 Preliminary Matters. The advocate may, and usually will, be the
same assistant attorney general who participated in the agency investigation and the
drafting of the notice of hearing or complaint. The advisor shall not have participated in
such preliminary matters, except as permitted in Section 1.10.4.06. During the course of
the Attorney General's representation of an agency an assistant may advise an agency as
to whether in his opinion the agency has grounds to commence a formal action. If such
action is commenced the assistant may act as the advocate but shall thereafter refrain
from diSCUSSing the matter with the decision maker as provided in Section 1.10.4.05.
1.10.4.04 Prohibition on Communication. No communication shall occur
between the advisor 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 issue on behalf of
any party participa ting in the proceeding.
1.10.4.05 Limitations on Advocate. The advocate shall not participate in the
actual determination by the decision maker of any fact or issue in dispute. Moreover, the
advocate shall not have any ex parte communications with the decision maker regarding
the merits of the case. In this regard, the submission of proposed findings or a proposed
1-27
decision to the decision maker does not constitute "participation" in the decision of a case
if the decision maker is free to accept, modify or reject the proposed findings and
decision and a copy of the proposed findings or decision is promptly provided to all
adverse parties or their respective counsel so as to enable them to respond.
1.10.4.06 Limitations on Advisor. The advisor shall limit his participation to
providing the decision maker with advice on procedural matters, including questions
concerning the admission or exclusion of evidence. If the decision maker wants 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 the advocate and all other
participating parties through written memoranda or oral arguments during the course of
the proceeding. The advisor should not in any manner advise the decision maker as to
which of such legal arguments is correct or should be followed by the decision maker.
1.10.4.07 Disregard of Advice. If the decision maker takes any action contrary
to the legal advice of the advocate or advisor, the Attorney General shall respect the
right of said officer or tribunal to exercise its own independent judgment in order to
assure fairness and impartiality in the hearing process.
1.10.4.08 Judicial Review. In the event of judicial review of the decision
maker's decision, the Attorney General shall represent the decision maker unless the
agency acted in a manner that causes the Attorney General to conclude that he is unable
to represent the decision maker, in which case the Attorney General shall decline to
represent the agency. ~ Section 1.10.3.02.
1.10.4.09 Comments. State and federal courts consistently have ruled that a
combination of investigatory, prosecutorial and adjudicative functions within a single
agency, standing alone, does not constitute a denial of due process. See Withrow v.
Larkin, 421 U.S. 35 (1975); Rudin v. Nevada Real Estate AdviSOry Commission, 86 Nev.
562, 471 P.2d 658 (1970); and Laman v. Nevada Real Estate Advisory Commission, 95 Nev.
50, 589 P.2d 166 (1979); Winslow v. Department of Professional and Occupational
Regulation, 348 So.2d 352 (Fla. App. 1977). At least one federal court also has held that
an Attorney General may act both as prosecutor and advisor to the decision maker
without violating the private parties' rights to due process. Shaw v. Board of Trustees of
Frederic Community College, 396 F.Supp. 872 (D. Md. 1975).
The courts have acknowledged, however, that such a combination possesses "the
potential" for unfairness. In order to perform his duties and to avoid a situation in which
circumstances would permit the "potential" for unfairness to develop, the Attorney
General (and his Assistant Attorneys General) shall adhere to the preceding guidelines
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 of a particular decision. Again, these guidelines are consistent with the
Attorney Genera1's ethical restrictions which prohibit ~ parte communications with
judges and other officials of a tribunal. ER 3.5{b).
1.10.5 Agency Representation by Outside Counsel.
1.10.5.01 Authority to Proceed. Before any action is taken to obtain outside
counsel the Attorney General will first determine whether the agency has legal authority
to proceed independently of the Attorney General. If it does, the following guidelines will
apply. If the agency lacks such authority to proceed, employees of the office of the
Attorney General shall not encourage or assist the agency in attempting to obtain such
counsel.
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1.10.5.02 Available Funds. If an agency will incur an obligation to pay for legal
services it must first have the authority to expend such funds for the purpose of
employing legal counsel and the funds available to pay such obligation. Funds for the
payment of such legal counsel shall be transferred by the agency to the Attorney General
who shall reimburse outside legal counsel on behalf of the state.
1.10.5.03 Appointment. Except in cases arising under Sections 1.10.2.02 or
1.10.2.03, the agency shall be assisted in obtaining such counsel, provided that in no case
shall counsel be appointed without the approval of the Attorney General.
1.10.5.04 Control of Appointed Counsel. Once outside counsel is obtained, the
Attorney General shall not exercise any control over such counsel's exercise of
independent professional judgment.
1.10.5.05 Comments. These guidelines are designed to comply with A.R.S.
§ 41-192(E) as interpreted by the Supreme Court in State of Arizona ex reI. Frohmiller v.
Hendrix, 59 Ariz. 184, 124 P.2d 768 (1942).
1.10.6 Attorney General's Membership on Quasi-Judicial Boards. Commissions.
1.10.6.01 General Rule. The Attorney General shall recuse himself from
participating in any manner as a member of a board, commission, or other public entity
which functions as an administrative tribunal or in a quasi-judicial capacity in any
proceeding in which an assistant attorney general participates as an advocate.
1.10.6.02 Issues of Compelling Public Interest. If the Attorney General
determines that his participation in a particular proceeding as a member of a board,
commission, or other public entity upon which he serves is of compelling public interest,
he may decline to recuse himself from participating in the deliberation. If the Attorney
General declines to recuse himself from participating in a particular proceeding, no
assistant attorney general shall participate as an advocate in that particular proceeding.
In such case, the board, commission, or public entity may obtain outside counsel to
represent it in the matter in controversy through the Attorney General. The principles
set forth in Section 1.10.5 will apply in such circumstances.
1.10.6.03 Application of Guidelines Regarding Agency Adjudicatory
Proceedings. With respect to boards, commissions or other public entities on which the
Attorney General serves as a member, the provisions of Section 1.10.4 (agency
adjudicatory proceedings) shall apply in situations where an assistant attorney general
participates as an advocate in proceedings before such board, commission or other public
entity.
1-29
_J
C
01
S
--
VIL
ISION
ork
--,.
ORGANIZED
CRIME AND
RACKETEERING
DIVISION
SOLICITOR GENERAL
Ching
MANAGEMENT SERVICES
Skell y
DEPUTY
ATTORNEY GENERAL
Cook
~ ~
ECONOMIC LIABILITY
SECURITY DEfENSE
DIVISION DIVISION
Howard Schwartz
~~.-~,--
I
TAX
APPENDIX 1.1
ORGANIZATIONAL CHART
Section 1.3.2
ATTORNEY GENERAL
Corbin
,
CHIEf ASSISTANT
ATTORNEY GENERAL
Twist
SPECIAL ASSISTANT
ATTORNEY GENERAL
Shad egg
TRANSPORTATION
DIVISION DIVISION
Macpherson Redpath
~
CIVIL
RIGHTS
DIVISION
Austin
PRESS SECRETARY
Kahn
SPECIAL COUNSEL
J. Funkhouser
TUCSON OFFICE
Bailey
SPECIAL INVESTIGATIONS
Todd
~ ~
ANTITRUST CRIMINAL
DIVISION DIVISION
Butterfield Schafer
-.---~---
~
ANCIAL
RAUD
ISION
urphy
If you h~ve any 4u~stions relating to the Attorney General's Office, you should call the Chief Assistant Attorney General 255-4266.
It you have any questions relating to Attorney General Opinions, you should call Special Counsel at 255-4266.
1-~'"
Appendix 1.1
DESCRIPTION OF DIVISIONS
Section l.3.2
In order to give you an idea of the function and responsibility of each division, the
following provides a very brief description of the divisions:
CIVIL DIVISION
The Civil Division is responsible for providing professional legal services to over
100 state agencies, boards and departments. These services include advising and
counseling clients, initiating and defending lawsuits and administrative hearings, drafting
legal opinions and reviewing rules and regulations proposed for adoption by state
agencies. This division is responsible for the legal representation of almost all state
agencies in their day-to-day operations.
CIVIL RIGHTS DIVISION,
The Civil Rights Division administers the Arizona Civil Rights Act which
provides for enforcement in the areas of public accommodations, voting and employment
discrimination. The Act prohibits discrimination against the following protected
classifications: race, color, national origin, religion, sex, age and physical handicap. This
division has power to investigate, conciliate and litigate charges of discrimination.
CRIMINAL DIVISION
The Criminal Division is responsible for criminal appellate matters and for
providing prosecution assistance to county attorneys.
ORGANIZED CRIME AND RACKETEERING DIVISION
The Organized Crime and Racketeering Division is responsible for the
prosecution of organized, white collar and state-wide crimes under the authority of
Arizona's State Grand Jury Act.
FINANCIAL FRAUD DIVISION
The Financial Fraud Division is responsible for enforcement of the Arizona
Consumer Fraud Act and the civil remedies under the new Anti-Racketeering Act. The
division also represents certain state regulatory bodies including the Departments of
Banking, Insurance, Real Estate and the Incorporating and Securities Divisions of the
Corporation Commission.
LIABILITY DEFENSE DIVISION
The Liability Defense Division is responsible for handling all claims and lawsuits
in connection with the state's self-insurance program.
TAX DIVISION
The Tax Division represents Arizona's tax agencies in the collection of
revenue. The division is responsible for litigation and appeals involving property, sales
and income tax issues.
1-31
SOLICITOR GENERAL DIVISION
The Solicitor General Division is responsible generally for the supervision of an
appellate work in the Attorney General's Office. It also is responsible for selected trial
matters. It provides assistance to the decision maker in complex and sensitive cases as
described in section 10.1.9 of Chapter 10. It also represents state administrative tribunals
whose functions are mainly appellate, 1..e... the State Land Department Board of Appeals.
In addition it is also responsible for the development of continuing education and training
of the office professional staff.
ANTITRUST DIVISION
The Antitrust Division is responsible for the implementation of the Attorney
General's policies for the enforcement of state antitrust laws and the representation of
state and public entities in matters relating to antitrust.
TRANSPORTATION DIVISION
The Department of Transportation and the Department of Public Safety are
represented by this division.
ECONOMIC SECURITY DIVISION
All legal services required by the Department of Economic Security are
provided by this division.
1-32
From 1.2 - Request for Investigative Services
(Text Section 1.1.8)
STATE OF ARIZONA
THE ATTORNEY GENERAL
SPECIAL INVESTIGATION DIVISION
Request for Investigative Services:
(Complete in Triplicate)
To be completed by Requesting Authority To be completed by Chief Investigator
Name: ____________ _ Investigative Report No. ________ _
Address:-----______ _ File No. --------_____ _
Phone No:----------__ Assigned to: ------------
Date of Request: _________ _ Date Assigned: __________ _
Request Completion Date: ______ _ Date Due: ____________ _
(Leave date open unless urgent)
Date Completed: __________ _
Refer Report to: _________ _
Priority: ____ Non-Priority: ____ _
Rem~ks: ____________ __
Requested by:-------___ _
Is any additional information attached?
yes ______ No -------
SPECIFY INFORMA nON AND/OR SERVICES DESIRED:
1-33
Section 2.1
Section 2.2
Section 2.3
Section 2.4
Section 2.5
2.5.1
Section 2.6
Section 2.7
Section 2.8
Section 2.9
Section 2.10
Section 2.11
Section 2. 12
Section 2.13
Section 2.14
Section 2.15
Section 2.16
Section 2.17
CHAPTER 2
PUBLIC OFFICERS AND EMPLOYEES
Table of Contents
Scope of this Chapter
Definition of "Public Officer"
Qualifications for Public Office
Duties and Responsibilities of Public Officers
Nomination and AQQOintment
Nomination Requiring Senate Consent
LQyalty Oath
Fidelity Bond
Term Qf Office
Vacancy in Office
Resignation from Office
Expiration of Term
Impeachment of Officers
Deputies and Assistants
Quorum Requirements
Compensation and Salaries
The Sunset Law
Selected Criminal and Civil Liability Provisions
2-i
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 the appointment of and legal requirements imposed upon public officers and
employees are also discussed.
2.2 Definition of "Public Officer." 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. The definition excludes "clerks or mere employees of
the officer." A.R.S. § 38-101. Generally, the executive heads of all state agencies and
the members of all state boards and commissions are considered "public officers."
Public officers must familiarize themselves with laws and rules generally
relating to the duties and responsibilities of public officers or agencies as well as those
pertaining to their particular office and agency. An officer is obligated to discharge the
duties of his office and may not delegate those duties to subordinates unless authorized by
law. See Section 2.13.
2.3 Qualifications for Public Office. Persons seeking election to public office
must meet Arizona constitutional and statutory requirements concerning election to
public office. A person is not eligible for election or appointment to elective office
unless he is a qualified elector of the state or political subdivision in which elected or
appointed. Ariz. Const. art. VII, § 15. No person under guardianship, non compos mentis,
or insane is a qualified elector, nor is any person convicted of treason or of a felony,
whose civil rights have been not restored, a qualified elector. Id. § 2.
Arizona statutes generally require that a public officer must be at least 18
years old and a resident of Arizona. A.R.S. § 38-201. In addition, there are constitutional
or statutory provisions establishing other specific qualifications for certain public
officers. See,~, 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. The public officer's primary
duty is to impartially execute all laws and rules for which he is 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.
2.5 Nomination and Appointment. The method for nomination and appointment
of officers is usually set forth in the statutes pertaining to the agency. 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, the
State Land Commissioner, the Director of Insurance, the Real Estate Commissioner,
2-1
the Registrar of Contractors, Racing Commissioners and the Director of Economic
Security. Other public officers are appointed by the Governor without Senate approval.
Examples of such officers include the members of the Board of Accountancy, Board of
Medical Examiners and the Structural Pest Control Commission. 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.
2.5.1 Nomination Requiring Senate Consent. Pursuant to A.R.S. § 38-211,
when a term of office expires or becomes vacant during a regular legislative session, the
Governor shall nominate a person and transmit the nomination forthwith to the Senate
president. If the Senate consents to the nomination, the person is appointed; if the Senate
rejects the nomination, the Governor shall nominate another person within sixty days. If a
nominee currently serving in the position is rejected, the position shall be declared vacant
immediately. A.R.S. §§ 35-2ll(B) and -295(B).
If no formal action is taken on the nominee during the legislative session, the
Governor, after the close of the session, may appoint the nominee to serve, subject to
confirmation during the next legislative session. A.R.S. § 38-2 11 (B). A nominee
appointed to serve, subject to confirmation during the next legislative session, upon
appointment has full authority to discharge the duties of office. A.R.S. § 38-211(0).
When a term of office expires or becomes vacant when the Legislature is not in
regular session, the Governor shall nominate a person and transmit the nomination to the
Senate during the first week of the next regular session.
A nominee may not serve in the office prior to consent by the Senate so long as
the incumbent continues to hold office. ~ Section 2.11. A nominee may be appointed to
serve only pursuant to the terms set forth in this Section and Section 2.9. No nominee
may serve longer than one year after nomination without Senate confirmation. A.R.S.
§ 38-21l(B).
2.6 Loyalty Oath. In Arizona, a loyalty oath is required of officers and
employees of all government agencies. A.R.S. § 38-23l(G); ~ Ariz.Atty.Gen.Op.
186-020. "Officer or employee" is defined for this purpose as any person elected,
appointed or employed, either on a part-time or full-time basis, by the 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 of the
foregoing. A.R.S. § 38-23 I (B).
follows:
All officers and employees are required to take and execute a loyalty oath as
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)
2-2
A.R.S. § 38-231(G). Persons who fail to take and execute the loyalty oath are not entitled
to receive compensation and are deemed to have vacated the office. A.R.S. §§ 38-231(D);
-291(9).
, An officer or member of a board or commission must take, subscribe and file
the loyalty oath within ten days after he has received notice of his employment, or if an
elected officer, any time after receiving the certificate of election and at least one day
before the commencement of the term of office. A.R.S. § 38-232.
The loyalty oath of an elected officer shall be filed with the Secretary of
State. The oaths of other officers and employees shall be filed with the administrative
agency to which they have been appointed. A.R.S. § 38-233(A).
2.7 Fidelity Bond
Each officer and employee .of an administrative agency is subject to a blanket
fidelity bond in the amount of $100,000 payable to the state, which is conditioned on the
faithful performance of official duties. A.R.S. § 38-251. This bond is purchased and
maintained by the state to cover all officers and employees. If an officer or employee
does not faithfully perform his official duties, he may be liable on the bond to the State of
Arizona as a result of the violation of his official duties, and the bonding company will
have the legal right to obtain reimbursement from such officer or employee to the extent
of the bonding company's payments. ~ Section 13.4.7. Notwithstanding the foregoing
liability provisions, no public officer or employee is personally liable for acts done in his
official capacity in good faith reliance on written opinions of the attorney general issued
pursuant to A.R.S. § 41-193(A)(7). A.R.S. § 38-446.
2.8 Term of Office. Many public officers have terms of office specified by
law, most often running from two to five years. Where the term of office has not been
established by law, the officer holds his position at the pleasure of the appointing
authority. A.R.S. § 38-295(A).
2.9 Vacancy in Office. A public office is deemed vacant if:
1. The office holder dies, is judicially determined to be insane, resigns and the
resignation is accepted, is removed from office, is convicted of a felony or of an offense
involving his official duties, or ceases to be a state resident. A.R.S. § 38-291(1), (2), (3),
(4), (5) and (8).
2. The office holder fails to file the required oath or bond on time, is absent
from the state without legislative permission for more than three consecutive months, for
three consecutive months ceases to discharge the duties of the office, or violates the
restrictions imposed by A.R.S. § 38-296. A.R.S. § 38-291(6), (7), (9) and (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. The Senate rejects the nomination, or fails to act on the nomination within
one year of its submission to the Senate. A.R.S. § 38-295(B).
2-3
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.
2.10 Resignation from Office. An officer seeking to resign from his office
should prepare a written resignation to be delivered to the appointing authority. A.R.S.
§ 38-294. The resignation is not effective until accepted by the appointing authority,
A.R.S. § 38-291. But cf., A,R.S. § 38-296(C) (the resignation of an incumbent elective
officer duly filed in writing shall be deemed to have become effective as of the date of
filing if not accepted within ten days). If the appointing authority does not accept the
resignation, the officer must continue to discharge the duties of the office. See Cragin v.
Frohmiller, 43 Ariz. 251, 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).
2.11 Expiration of Term. An officer is required to continue to discharge his
official duties after the expiration of his term of office, until his successor has been
appointed and qualified. If an officer resigns and the resignation is accepted before the
expiration of his term, an officer who is appointed to fill the vacancy can serve only for
the remainder of the term. A. R.S. § 38-295.
2.l2 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.
2.13 Deputies and Assistants. Public officers may appoint deputies and
assistants only when specifically authorized by law. A.R.S. § 38-461(A). The appointment
shall be in writing and filed with the Secretary of State. A.R.S. § 38-461(C). Unless
otherwise provided by law, a deputy may exercise all duties prescribed by law for that
agency and the agency head. A. R.S. § 38-462. Public officers may hire clerks and other
employees as necessary to facilitate the prompt discharge of official duties. Assistants,
clerks and other employees may perform routine and ministerial tasks without delegation
of authority or specific statutory authorization. See A.R.S. § 38-461.
2.14 Quorum Requirements. As a general rule a quorum must be present to
enable a board or commission to transact business. Unless otherwise provided by law, a
quorum consists of a majority of the statutory membership of the board or commission.
A.R.S. § 1-216(B). For example, if the statute creating the board provides for a total
membership of seven persons, the quorum for that board would be four members. This
result would be the same even if there were only four members actually serving due to
unfilled vacancies. For a discussion of the effects on the quorum requirement of the
disqualification of a board or commission member ~ Section 10.9.4.
While a quorum is necessary for the transaction of business, the
well-established rule is that only the concurrence of a majority of the quorum, although
not a majority of the statutory membership of the board or commission, is sufficient to
take any particular action. This rule may be altered by specific legislation requiring the
concurrence of a different number of members, such as two thirds. See
Ariz.A tty. Gen. Op. 184-165.
2.15 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
2-4
emolument in excess of the legally authm-ized salary. A.R.S. § 38-601. Also, the
compensation of a public officer serving for-fa fixed term of office may not be increased
or decreased during his term of office, excepf. for officers serving on boards composed of
two or more officers whose terms are not coterminous. Ariz. Const. art. IV, pt. 2, § 17.
When the salary of one member of such a board is adjusted legislatively at the beginning
of his 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 of the Department of Administration salary plan
as adopted or modified by the Legislature. 'If exempt from the state personnel system,
they receive salaries within the range recommended annually by the Department of
Administration to the Legislature and the Joint Legislative Budget Committee unless
modified by the Legislature. Some members of boards, commissions, councils or advisory
committees, who are authorized by law to receive compensation but not otherwise
provided for, may receive compensation at a rate not to exceed $30 for each day they
serve. A. R.S. § 38-611. Certain state officers and employees are exempt from the
foregoing compensation provisions. ~ A.R.S. §§ 38-611(C); 41-192(B)(3).
2.16 The Sunset Law. In 1978, therLegislature enacted a "Sunset Law" which
provides for the automatic termination of cericiin administrative agencies unless specific
justification can be given for continuing the existence of the agency. A.R.S. §§ 41-2351
to -2354. A "sunset review" of each adminis-1ftative agency scheduled for termination is
conducted by the Auditor General and commit'rle'es of the Legislature. The sunset review
includes (i) determining whether there is a need for the agency's program, (U) 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. § 41-2352(5). Unless
specific legislation is enacted to continue the agency or modify its structure, the agency
ceases existence on the scheduled termination'date. A.R.S. § 41-2377(A). The scheduled
termination dates for agencies may be found in A.R.S. §§ 41-2361 to -2376.04. A
termination schedule is added by the Legislature each year.
2.17 Selected Criminal and Civil Liability Provisions. Public officers and
employees should be familiar with certain criminal and civil liability provisions which may
be relevant to their activities. These selected provisiOns follow:
Offense
1. Obstructing governmental operations.
Knowingly obstructing. impairing or
hindering the performance of a govern­mental
function by threat of violence or
physical force. A.R.S. § 13-2402.
2. Impersonating a public servant.
Pretending to be a public servant with
intent to induce another to submit to his
"official" authority or to rely on his
"official" acts. A.R.S. § 13-2406.
2-5
Classification
Class 1 misdemeanor
Class 1 misdemeanor
Offense
3. Tampering with a public record.
Knowingly, with intent to deceive,
preparing, using or filing a false written
instrument as a public record; or destroying,
removing, mutilating or concealing public
records. A.R.S. § 13-2407.
4. Bribery.
Conferring of a benefit on a public
servant, with corrupt intent, to influence his
vote, opinion, judgment. exercise of
discretion or other action in his official
capacity; or the solicitation or acceptance
by a public servant of any benefit with the
understanding tha t his vote, OpInIOn,
judgment, exercise of discretion or other
action may thereby be influenced. A. R.S.
§ 13-2602.
5. Trading in public office.
Offering to confer, conferring or
agreeing to confer, with corrupt intent, a
benefit upon a public servant in exchange
for appointment to a public office or
soliciting or agreeing to accept any benefit
in exchange for appointing another to a
public office. A.R.S. § 13-2603.
6. Perjury.
Making a false sworn statement