My Complaint Against Senator Tim Bee for Violation of Arizona's Resign-To-Run Laws

On November 20th I sent the following letter to the Arizona Attorney General's office, and today I sent it to major media throughout Arizona.

The readers of BlogForArizona can help by calling the Attorney General's Office and your local media to inquire about what is being done about my complaint.

"Dear Mr. Goddard:

I wish to register a formal complaint against Tim Bee, State Senator for Arizona Legislative District 30 and current President of the Arizona Senate. By all appearances, he has violated the Arizona Constitution's Article XXII, §18 and Arizona Revised Statutes §38-296, collectively known as the "resign-to-run" laws. These laws require state officeholders to resign before campaigning for another office, except in the final year of their term of office. I urge that Mr. Bee be directed to resign his office immediately, and, should he refuse, that your office immediately commence legal proceedings to declare his office vacant.

The supporting statements below are based on information and belief arising from public records and press accounts, not personal knowledge. They illustrate that (1) Mr. Bee is a candidate for federal office; (2) he has alleged that he is not a candidate under Arizona state law; (3) he has alleged that his non-candidate status exempts him from the requirement to resign his state office; and (4) this position is legally and practically untenable and contrary to the public policy interests of the Arizona electorate.

Under federal law, Mr. Bee is a candidate for the United States Congress. The "Tim Bee Exploratory Committee" (C00438408) is a federal principal campaign committee registered with the FEC pursuant to USC 14 §431(2)(A). Only a federal candidate may designate a principal campaign committee under USC 14 §432(e)(1). By designating a principal campaign committee and filing the receipts and expenses of that committee with the FEC, Mr. Bee has made legal admission of his candidacy under federal law. However, for purposes of Arizona law, Mr. Bee persists in the fiction that he is only "exploring" a candidacy, based on the fact that he has not yet filed candidacy papers in Arizona. Despite its misleading title, the Tim Bee Exploratory Committee is, de jure, actually a candidate's committee. The misleading use of the word "exploratory" in the name of his campaign committee in no way diminishes his status as a federal candidate.  Furthermore, by receiving and/or making expenditures aggregating in excess of $5, 000.00 in connection with seeking nomination or election to a federal office, Mr. Bee meets the definition of a federal candidate under 11 CFR §100.3(a).

Tim Bee attempts to maintain the fiction of his exploratory status in his Statement of Candidacy (FEC filing of Aug. 31, 2007; http://query.nictusa.com/cgi-bin/fecimg/?_27039520463+0), but this attempt to muddy the waters cannot counter his present legal status as a federal candidate. According to relevant federal law, there are only three possible status candidacy options: "candidate," "testing the waters," and "non-candidate." Mr. Bee has essentially attempted to invent a fourth category, that of an exploratory candidate who is testing the waters and has chosen to voluntarily follow the FEC regulations applicable only to candidates. Although his actions and filings have taken him out of the testing-the-waters phase of his candidacy and made him subject to regulations applicable only to candidates, he simply refuses to admit to being a candidate. His lack of admission is irrelevant; he is a federal candidate.

Mr. Bee's status under federal law is directly relevant to his status under state law. It is a legal absurdity for a person to be a candidate for federal office under federal law, but not a candidate for that very same federal office under state law. Since Mr. Bee is a already a candidate for Congress in Congressional District 8 under federal law, that legal fact should have a dispositive effect on his status under state law.

As stated in Attorney General Opinion I93-003, Arizona statutes contain no provision defining a "formal public declaration of candidacy," nor have the Arizona courts directly addressed this issue. However, Opinion I93-003 cautions that "mere creation of an exploratory committee does not automatically shield an incumbent from the resign-to-run laws if other statements or conduct constitute a formal public declaration of candidacy." This caution applies directly to Mr. Bee's attempt to become a candidate under federal election law while remaining a potential candidate under state laws. Announcements by your office concerning the candidacy of Mr. Bee have suggested that only the actual filing of candidacy papers or a formal announcement would qualify a person as a formal candidate. Such a narrow reading is in clear conflict with reasoning in the aforementioned Attorney General opinion and with the intent of the resign-to-run laws of this State.

Mr. Bee has engaged in extensive fund-raising far in excess of what is reasonably needed for exploratory activities. As of Sept. 30, 2007, his campaign had raised in excess of $134,000 (FEC filing of Oct. 15, 2007: http://query.nictusa.com/cgi-bin/dcdev/forms/C00438408/). Since the campaign has spent merely $15,000 thus far, it is clear that these monies are not being used for exploratory activities, and that the vast majority of the fruits of his fundraising efforts are intended to be spent on his candidacy for office, not on exploratory activities. This financial position alone is sufficient to find that his actions are that of a candidate for office, not one who is exploring a bid for office.

The policy purposes of the resign-to-run laws, as expressed by Arizona's courts, are manifestly being transgressed by Mr. Bee's campaign activities. These policy purposes are four-fold: (1) to encourage an elected official to devote himself exclusively to the duties of his office; (2) to minimize the possibilities of public subsidies for officials who are merely using public office as a "stepping stone"; (3) to prevent abuse of office before and after an election; and (4) to protect the expectations of the electorate in voting a candidate into office. See Joyner v. Mofford, 706 F.2d 1523, 1532 (9th Cir. 1983).

Mr. Bee's conduct is at odds with several of the policy purposes of the resign-to-run provisions, and enforcement of that law should take into account the results of his actual behavior. Most troubling are Mr. Bee's fund-raising activities, which have led to an appearance of abuse of office. One example being that on Nov. 13 2007, several lobbyists with business pending before the Arizona State Senate threw a fundraiser for Mr. Bee's congressional campaign. The Phoenix event was co-chaired by registered lobbyists Kevin DeMenna (ID# 3100669), Michael Preston Green (ID# 3101382), John Kaites (ID# 3600187), and Michael Racy (ID# 3100964). The obvious and damaging inference is that the interests represented by these lobbyists might receive preferential treatment from Mr. Bee in his capacity as Senate President in return for their campaign contributions. It is exactly such an appearance of abuse of office that undermines public confidence in our political institutions, and that the resign-to-run provisions seek to prevent.

Because of the great amount of effort and time required to mount a serious campaign for public office, running for another office is inimical to the diligent performance of the duties of an official's current office. When Mr. Bee was elected to his current office, the voters in his legislative district had a reasonable expectation that he would concentrate his energy on his duties on his office as an Arizona legislator. By retaining his Senate office while his energy and time are devoted to campaigning for the U.S. Congress, he is clearly violating that expectation.

The prior findings of the Attorney General's Office (Opinion I93-003), Mr. Bee's current federal status as a candidate, his fund-raising far in excess of what is needed for candidate exploration, and his campaign's persistent violation of the purposes of the resign-to-run provisions all argue that Mr. Bee is a candidate for federal office under Arizona law. It is incumbent upon your office to uphold Arizona's resign-to-run provisions in the face of Mr. Bee's obstinate and flagrant attempt to subvert our legal traditions. I urge you to demand Mr. Bee's immediate resignation from the Arizona Senate, and, if he refuses, to immediately initiate legal proceedings to declare his seat vacant. Failure to act is to condone Mr. Bee's attempt to subvert the laws and Constitution of this state, and to set a precedent for future officeholders that is likely to transform our resign-to-run provisions into dead-letter law.

Respectfully Yours,
Michael Bryan"

My motivation in filing this complaint is not political advantage for any candidate, but rather a desire to see the rule of law respected and enforced.

I actually see many political advantages to Sen. Bee retaining his current office while running for Congress: he is objectively an ally to Gov. Napolitano in the coming budget process, his legislative duties will severely restrict his fund-raising, the performance of the legislative session could adversely affect his electoral chances, and history indicates that only members of the state legislature who resign their seats are successful in running for Congress.

Notwithstanding those excellent political reasons to tolerate Sen. Bee's abuse of Arizona's laws and Constitution, I feel strongly that since no one in either political party or the state government is doing their part to uphold the law, someone has to at least make an attempt and state the case strongly on the record to enforce of our laws.

Comments

[American Chauvinist]

McCain Fiengold leaves issues like described above up in the air.

State Laws may conflict with Federal Laws and its all up to The Enforcement of The Rule of Law in many circumstances and what each campaigns values are.

I have stayed away from endorsements from anyone or any Organizations unlike my opponents whom have gotten in over there heads on some kind of political money grab game with friends and business deals like GEO Innovation and Giffords granting promises of earmarks for solar companies if elected.

I support Mikes attempt to gain clarity and guidance as to just what McCain Fiengold means compared to State Campaign Laws.

The corruption and game playing needs to stop!

[cactus wren]

"My motivation in filing this complaint is not political advantage for any candidate, but rather a desire to see the rule of law respected and enforced."

I don't believe that for one minute.

The first part of that sentence is your true motivation - and the give-away is that you made a point of denying it.

[Duke the Dog]

Mike,
I hope Goddard takes your advice and goes after Tim. Not because I have the same political motivations as you but because it will set in motion the wheels to get this in front of the Supreme Court where it will definitely be shot down as unconstitutional. (Conflict with 1st Amendment).

I only wish that Tim would openly declare his candidacy and challenge the BS resign to run statute.

Is this all you guys on the left could muster up to throw at Tim?

I can't wait for the "He poisons babies and steals old widows pensions" crap to start.

I know you're aware that there is no limit in fundraising for exploratory committees and that the $5000 threshold argument you make is BS because that amount is only used by the FEC to trigger required financial reporting and has nothing to do with actual "formal recognition" as a candidate.

To officially become a candidate Tim must file the sufficient number of nominating petitions with the Arizona Secretary of State. Until such time, Tim is no more a candidate than Derrick Tidball or even Gabby herself. Neither of them has technically met the “formal recognition” as a candidate requirement either.

Go ahead Terry! Set your sights on the admirable Tim Bee I dare ya. You ain’t got a hair on your …

[azw88]

Mike makes the nws:
http://www.azstarnet.com/metro/213727.php

[Sirocco]

"I can't wait for the "He poisons babies and steals old widows pensions" crap to start."

I am pretty sure Bee has never poisoned a baby, but as to whether he steals old widows pensions ... well ...

[ThinkRight]

Of course this is political. Goddards' office says nothings been filed...maybe you better hire an attorney. The one you're using may be lame...oh, it's you...

[mhp]

Good for you, Mike, read about it in today's Star.
Can we stench the flow of venom from the right for just a moment and look at the simple fact? It's a law. If Bee believes the law is unfair or unconstitutional, then he should have the guts to challenge it. If not, he should obey it. Bee is doing neither, and that strikes me as cowardly.

[American Chauvinist]

I as a Candidate for Congress in CD8 will ask the F.E.C. for an Advisory Opinion to clarify just when a Candidate becomes a candidate under Federal Rules.

In the past I have been unsuccessful in having the F.E.C. rule on issues that do not involve direct campaign funds and how they are spent, they mostly are not interested in the term "Exploritory Committee."

[kralmajales]

Mike is so right it is fantastic.

The funny thing is that all people can say to this on the right is things like "is this all you got" and such things as that he should challenge the constitutionality of law.

None deny that Mike is wrong.

Excellent legal analysis.

[Francine Shacter]

Hooray for Michael!!! and shock of all shocks - I find myself in agreement with Dwight again - will wonders never cease!

When Gabby decided to run, she stepped down from her legislature seat. It's a State law. If the Feds want to overturn the law, we can deal with that when it happens. In the meantime, Arizona law says Bee has to fish or cut bait and I, for one, am glad to see our Michael had the intestinal fortitude (I can't use the other expression) to raise the question. Now, we'll see if our AG has the intestinal fortitude to deal with it!

Stay tuned!!!

[American Chauvinist]

Francine and I have dealt with filings with the F.E.C. and The Secretary of State of which I think should NOT be held "Harmless" in this problem involving State Law.

If I had problems with the Secretary of State Iam sure Francine did as well!

Since my first contact with The Secretary of State in January of 2004 as a Congressional Candidate I was amazed at her lack of involvement and knowledge of Congressional Candidates and procedures under State Law.

Time after time she referred me to The F.E.C. for answers they could not give that were State Issues.

So that as to be non-partisan BOTH the Attorney General and The Secretary of State should address Mikes issues.

The Secretary of State has the right to refuse to take the nomination papers of any candidate that does NOT follow State Law.

[Saddlemaker]

Mike is wrong, his legal opinion is flawed and he appears to be driven by politics.

I predict that this law will be struck down right before our Governor decides to run for the US Senate.

[BigBadSteve]

If the law says that one is required "to resign before campaigning for another office, except in the final year of their term of office," then the solution is simple. Mr Bee has only to declare that this is his final year in office.
Then everyone's happy!! yes?! (oh, except the whiners!)

[Ray]

Why can the U.S. Senators and Representatives run for other offices while remaining in their current position?