Nobody's sure who the acting Governor of Arizona is.

[ThePug]

Sounds like the state Constitution is perfectly clear, but the vacationing Governor's lackey disagrees.

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So, who's the real governor today?
By HOWARD FISCHER
Capitol Media Services
Sunday, September 02, 2007


PHOENIX -- So who is the governor of Arizona today?

But wait. Before you answer, consider these two pieces of information.

First, Janet Napolitano -- the person elected to the office -- is on vacation in Italy. And she won't be back in the office until Thursday.

And second, Article 5 Section 6 of the constitution says the secretary of state inherits the "powers and duties of the office of governor" any during any "absence from the state or other temporary disability" of the elected governor.

So who is the person entitled to wield the powers of the state's chief executive, sign proclamations, declare emergencies and appoint cabinet members?

Secretary of State Jan Brewer says she's it.

But Tim Nelson, chief counsel to the governor -- the one actually re-elected last year -- insisted his boss remains the governor no matter where in the world she roams.

Nelson said that provision from the state's 1912 constitution is antiquated. He said in an era of cell and satellite phones as well as fax machines Napolitano is perfectly capable of performing her duties from anywhere.

In fact, Nelson said the absent Napolitano has, on at least one occasion, directed a staffer to use her automated signature machine to sign a document, though he said he cannot remember what that was.

But that stance may have developed a bit of a chink this past week when the fear of flooding in the Nogales Wash resulted in the need for an official declaration of emergency. That declaration was necessary to free up $200,000 of state funds to deal with the problem as well as allow the use of the Arizona National Guard.

Napolitano's staffers prepared the document and called the vacationing governor, who gave her approval. But rather than getting her permission to sign it -- or even faxing it to her for her signature -- they chose to present it to Brewer.

Nelson said that avoids any potential constitutional test and averts any questions the declaration's legality.

"There's an open academic question about what it means to be 'absent from the state,'" he said.

"We didn't need to cross that bridge to deal with this here," Nelson continued. "The fact is we authorized Secretary Brewer to do it."

But Brewer doesn't see her role as simply being "authorized" by Napolitano to do the absent governor's bidding.

She said it was her decision to sign the declaration, which she did as "acting governor."

And since she was the acting governor, she couldn't attest to her own signature, something normally the duty of the secretary of state. So she named her assistant Kevin Tyne as "acting secretary of state."

"The bottom line is that I am doing my job, which I took an oath for under the constitution," Brewer said.

While Arizona courts have never addressed the question, there is some precedent from other states which have similar constitutional provisions -- on both sides of the argument.

California courts upheld actions taken in 1979 and 1980 when Republican Mike Curb, the lieutenant governor, signed several executive orders while Democratic Gov. Jerry Brown was out of state, orders Brown rescinded when he returned.

But the Missouri Supreme Court concluded in 1991 the lieutenant governor does not become acting governor on the physical absence of the elected governor from the state, but only when the governor's absence makes that person unable to perform his or her duties.