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September 26, 2003

Host: Michael Grant
Topics:
· The Journalists Roundtable
In-Studio Guests:
Howie Fischer, "Capitol Media Services;"
Robbie Sherwood, "The Arizona Republic;"
Chris Coppola, "East Valley Tribune."

>> Michael Grant: It's Friday, September 26th,2003. Facing a possible impeachment, an Arizona Corporation Commissioner this week turned in his resignation.

>>> Michael Grant: Governor Napolitano announced she's calling the legislature into a special session next month to deal with reforming Child Protective Services and prison overcrowding. The City of Phoenix has threatened to pull out of a regional transportation plan if the legislature makes any changes to it.

>>> Michael Grant: Good evening, I'm Michael Grant. This is the Journalists' Roundtable. Joining me to talk about these and other stories are Howie Fischer from "Capitol Media Services," Robbie Sherwood from "The Arizona Republic" and Chris Coppola from the "East Valley Tribune." Facing possible impeachment, Arizona Corporation Commissioner Jim Irvin resigned his position this week. Howie, he didn't go dribble into that good night. What did he say in his letter of resignation?

>> Howard Fischer: Well, It comes down to the blank you to the legislature, to the public, to Mel McDonald, the house special counsel. He said I have done nothing wrong. The only reason I am leaving is because it has been a burden on my family, and I need to not only defend myself in this civil case, the appeal of the $60 million judgment, but I need to file a new action against the state because they stopped paying my legal fees in this case, and they are not indemnifying me in this. It's something that I had to do. He also took a shot at the state for not paying his legal fees, aside from filing the claim, he said here that I hope that the state's acts in this matter will not discourage other capable candidates from pursuing public office due to fear of betrayal by the state, somehow saying because he got hit with the punitive damages and the state said, excuse me, you did this on your own, we're not going to pay for it, that somehow somebody else won't run for the Corporation Commission.

>> Michael Grant: One of the things I was surprised by, because the state only stopped paying his legal fees four, five months ago, but there was an additional claim for almost $600,000 in attorneys' fees.

>> Robbie Sherwood: I'd like to see an itemized bill for what that was, because he had one deposition, I believe, with the impeachment investigation. They filed a few motions with the federal court since then, but that statement about the betrayal by the state really got on the nerves of a lot of your legislators because -- and I think that's why there was no feeling whatsoever that they should not release their investigation, and so they've been proceeding with the investigation. They are going to release that next week, because they want to show in no uncertain terms that Jim Irvin did bad things, and that he needed to go. And you're getting a lot of hints about what might be in there. Mel McDonald said that he has instances of clear and convincing evidence of criminal wrongdoing. When you say "clear and convincing" he is talking about the civil standard for proof of criminal wrongdoing.

>> Michael: In fact, I think the standard that was established during the Mecham impeachment for that level of evidence required to impeach.

>> Robbie Sherwood: That's got to be intriguing to prosecutors out there because it's the next standard out there is, you know, is beyond a reasonable doubt. Maybe there is something there, maybe there is not. He did indicate that he believes there is new territory. He's bringing forth things that the public and other prosecutors haven't seen before.

>> Chris Coppola: I found that to be another interesting aspect in his letter of resignation that gets to that point, and the point about him still hoping for the state to pick up the tab is where he talked about in the end, you know, he's pushing for state to pick up the tab. The state may be on the hook for this, and they are actually building the case against him.

>> Chris Coppola: And so he actually --

>> Howard Fischer: That's what's fascinating. He says you are helping my enemies and the state's enemies, Southern Union, which was the unsuccessful bidder in this case, the one who sued Irvin, Rose, Southwest Gas and the other bidder for that whole thing. And so somehow to say you are slitting your own throat, I think he's really missing the point here. He seems to be suggesting that somehow you're liable and the judge very clearly said, she said even before the trial, he was not acting in the course and scope of his employment. He was acting on his own behalf. His actions were reprehensible, and he and he alone should pay that punitive damage. Now, he doesn't have $60 million. That's a fact. I mean even if he wiped out everything he had, he's not going to get it. You know, Southern Union may in fact go up to the State's insurance company, but in terms of the state liability, it's not there.

>> Robbie Sherwood: Former Judge Robert Myers, who is now deputy attorney general weighed in on this, too. He said you cannot both act in the scope and duties in your office and act with an evil mind and intent and he's talking about what is the standard for punitive damages. The punitive damages speak for themselves in that; they cross each other out.

>> Michael Grant: As a technical matter, of course, there is no one left to impeach. Was any thought ever given to saying to ah ah Mel McDonald, well, that's okay, I guess your job is done, give us your notes, give us your evidence, but we no longer need your report?

>> Robbie Sherwood: Absolutely not because (A), this is -- the public is paying Mel McDonald a lot of money to produce this thing, so the public, i.e., us journalists, really have some interest in what's in there, but they were afraid if they agreed to bury this report, that Jim Irvin would say something in his letter just like he did, I'm only quitting because this is hard on my family, and you guys are giving me a raw deal, and there would be nothing to the contrary. So this report, they feel is going to strongly contradict his resignation letter.

>> Howard Fischer: The other piece of it is if he impeached, someone would have to vote on what we call the Dracula clause, which is he could never run again. By virtue of him quitting, technically, he could run again. He can run for Secretary of State like he did in '94. By releasing the report, I think the feeling the lawmakers is we can't impose a Dracula clause because there is no case before us, but you will have --

>> Michael Grant: a de facto Dracula clause?

>> Howard Fischer: Yes. You will have all of the evidence. If you choose after reading all of this to elect this guy again, it's not our fault.

>> Robbie Sherwood: It seems like you want to make an over-arching epitaph for Jim Irvin's political career, but this is not over. We will see a lot more of him to come.

>> Michael Grant: What's the timing on the McDonald report?

>> Howard Fischer: He was originally shooting for next Tuesday. When I talked to him this afternoon, he said, well, maybe. He was at his desk this afternoon trying to write -- put it all together, and I think clearly by the end of next week, but he's trying to build the best case possible. He's trying to say here's the evidence we have. Here's the applicable statutes. Here's what Jim Irvin did. Here's the evidence we have to back that up. Again, he's thinking like a prosecutor, which is what he was.

>> Michael Grant: Any thought been given to the forum in which this report will be delivered? I mean, will it only be delivered, Robbie, in writing or is there a plan to present it to the House Judiciary Committee in some sort of session? Or do they know?

>> Robbie Sherwood: I wish I knew that answer. I just hope that if they wait until the middle of the day that they have a nice executive summary that we can tear through quickly because we will compete with radio and TV for our deadlines.

>> Michael Grant: He has communicated with the House Judiciary Committee.

>> Howard Fischer: I think that's a likely forum for it. But I think he's probably going to hand it personally to leadership before he does anything like that. >> Howard Fischer: I think even that the House folks recognize this from a PR standpoint. There are TV cameras. You show a report to a TV reporter, and they don't write very well. They want somebody to say, and Mr. McDonald, what does this all mean, and I think Mel will stand up in front of the committee or a press conference and say, here are my key findings.

>> Michael Grant: I will ask the obligatory who is Governor Napolitano going to appoint to succeed him, but I think we know more about who is not going to become a commissioner, as opposed to who is going to become commissioner.

>> Howard Fischer: Well, we know, and you and I talked about this on Wednesday; that white male residents of Maricopa County need not apply. We've got four of them on the Commission. Sorry, Michael, you are not eligible for the job. We know that newly reelected Phoenix city councilwoman Peggy Bilsten is not interested in the job. We know that Jack Jewitt currently a member of the Board of Regents is not interested in that. Beyond that, it comes down to some folks saying, well, maybe. For example, Betsey Bayless said, well, look, if the Governor comes to me and says I'd like you to do this, she says I'll have to consider it. Betsy makes $149,000 a year. This job pays $79,five. Nothing like being downwardly mobile.

>> Michael Grant: Well, and the other thing is it buys you a general election next November, assuming the person wants to stand for the remaining two years of the term.

>> Howard Fischer: At half your current salary. That becomes the other question that we're getting funny information on. The Governor has to name a Republican. Clearly she would like to see a Democrat in there. If she names someone, will she (A) insist that that person only serve until the next election and not run for reelection, therefore creating an open seat, or (B), does she name somebody weak enough that assuming they wanted to run again, they would at least have a good challenge out there.

>> Robbie Sherwood: There's a very good chance that any of the names we've thrown out there will not be the person. Maybe they are keeping someone under wraps.

>> Michael: That's normally the way it works.

>> Robbie Sherwood: The funny thing is What Howie said about maybe the Governor putting pressure not to run again, I think they are getting the same kind of pressure from the right-hand wing of the Republican party simply because they don't want to deal with somebody that is a Napolitano appointee. They would rather put their person in there too.

>> Michael: Governor Napolitano announced this week she will call lawmakers back for a special session October 20th. Robbie, will anyone show up?

>> Robbie Sherwood: They'll show up, but I don't think that they'll be happy. This is a special session that they were expecting on prison overcrowding, which is very cut and dried. They need some more money, they are a thousand beds short. Napolitano has backtracked plans to reform Child Protective Services. We have cases of neglect and abuse in which CPS seems to have had contact with these families and not done anything, and then bad things happen down the road. I think they are trying to look to put an end to that fast. There is a lot of political pressure. But CPS is a monster. So, you know, the House and Senate leadership, special sessions are 1, 2 or 3 days. This thing could last through the holidays because there is no consensus on what to do.

>> Michael: Chris, the Governor's commission -- actually there was a split recommendation to take Child Protective Services out of the Department of Economic Security, make its own cabinet level branch. The Governor has indicated that she does not like that suggestion, and I think that's going to be certainly one of the flashpoints in this debate.

>> Chris Coppola: Yeah, I think that will be one of the big flashpoints. There have been others who have broached this topic. Rick Romley, the Maricopa County attorney he's chimed in on this issue as well. He's looked at it. The legislature there is no consensus. They've got their own folks looking at this as well. You know, when you talk about setting up another agency, you know, the question is, you know, CPS's mission, maybe it's not quite in line with DES's larger mission here, but any time with a Republican controlled legislature you start talking about setting up another agency or potential bureaucracy that is touchy, too.

>> Howard Fischer: Chris makes an interesting point. They have their own committee looking at CPS. They do not report until the end of the year. The Governor's position is well, yeah, but some of these people sat on my committee so they should take my recommendations which they haven't released yet. And it's this idea that you should do it my way or the highway, which always gets her in trouble. She's going create that sort of attitude that even if some of the lawmakers like what she's proposing, they'll say what, we've got our own process here, they are talking about years of abuse and neglect of the agency, and you are saying we should come in, do it your way and leave, it isn't going to happen that way, Governor.

>> Robbie Sherwood: The Governor is insisting that we have three weeks to hammer out a consensus. That should be enough time to do something, but it's this I guess the lawmakers are going to consider it to be an imperial attitude coming from her on the 9th floor and her unwillingness to even wait for their recommendation, I think it's stepping off on the wrong foot. It could be a quagmire and a big mess.

>> Michael Grant: On the other hand, Chris, there is a strong feeling in the public that something needs to be done, and preferably something needs to be done sooner than later.

>> Chris Coppola: Absolutely. And as Robbie mentioned, it's been one case after another. With many of these cases, CPS is either unwilling or unable to talk about the details. And in each of these coming up, it's been directed at the Governor. She's been saying be patient, my commission is working on this. I think there is this political pressure that is coming out, now we're going to move on it.

>> Howard Fischer: There is one more piece, and the lawmakers understand this. The Governor wants to make the protection of the child paramount. I understand that, and it's good on paper. When you go too far in that direction, when you say to CPS, when in doubt, take the child, you're going to have children being taken from homes based on unsubstantiated reports from neighbors, based on bruises.

>> Michael Grant: There have been stories on that.

>> Howard Fischer: That's exactly the problem, to say err on the side of taking the child, I think it's not going to go down well.

>> Chris Coppola: It opens up the whole issue up of not enough foster care homes out there or CPS case workers, that's a major aspect of this as well.

>> Michael: Less controversial, the other two possible subjects of this special session, corrections and repeal of the $5 withholding.

>> Howard Fischer: Corrections, everyone knew when they put the budget together there wasn't enough money there.

>> Michael: That's the end of the regular session.

>> Howard Fischer: The $5 thing was interesting. This was the brain child, and I'll use the term loosely, of Jack Harper who was convinced that if you force every employee to have at least $5 deducted from a pay checks, you will catch illegals and others who are part of the sort of underground economy who are claiming a lot of deductions and not having any money taken out, and they'll get $60 a year out of them. He created this massive bureaucracy which even his colleagues did not understand. Wait a second, we're going to tell everyone who has no deductions now, we're going to take the money out? Remember, this State is set up so that if you make less than $20,000 a year, if you are a family of four, you owe no state income tax. Now we're taking this whole crew, putting them into the system, requiring them to have the withholding, requiring employers to have the withholding, only to have them file to get it back.

>> Robbie Sherwood: It's really an unfair scam in favor of the State too. How many people --

>> Michael Grant: Free Loan.

>> Robbie Sherwood: Well, some people won't collect on that loan. To get $60 back, you are going to do a return? What if you go to H&R Block, they charge you $60 to get your $60 back.

>> Michael: Kinder Morgan has a testing plan on the pipeline break?

>> Robbie Sherwood: I guess they are afraid of that $25,000 fine, so they've gotten their fine in to test the environment. Not that I know a lot about it, but it consists drilling a series of 40-foot holes in the ground near the areas that were affected to test for ground water contamination and whether private properties are affected. DES hasn't really gotten back to them, not DES, Department of Environmental Quality. They haven't gotten back to them on whether they think it is a good idea yet.

>> Michael Grant: We ran a poll over the weekend, looked like the Governor actually held up fairly well in her handling of the pipeline situation. I suspect, however, had we run that poll on Monday of that week when everybody was in town that, we might have gotten, perhaps, a different result.

>> Robbie Sherwood: It would have been exactly the opposite after she said this was a problem not a crisis. But I think that once people got gas in their tanks, they realized that maybe it was just a problem, not a crisis, but at the risk of incurring more wrath -- but she has a knack for weathering torpedos that come her way with these polls.

>> Michael Grant: 120% of the people surveyed supported an anti-price gouging law, Chris. Were you shocked by that result?

>> Chris Coppola: I was shocked it wasn't higher. Yeah, again, you know, ask that question Monday morning it, would have been 150%, I guess. But that gets complicated as we know. How do you define price gouging?

>> Howard Fischer: That's an interesting issue. When I talked to Terry Goddard about it, and I said okay, you were complaining about the $4 gallon of gas, I said so what are the tests? What qualifies? He admitted that what occurred in the Valley would not qualify under the law, because what you would need is a declaration of a emergency by a Governor or president. You would need some baseline figure. You would have to figure out what are the essentials and you'd have to show that it was necessary for life, health and safety.

>> Michael Grant: Different states approach those differently.

>> Howard Fischer: Exactly. Some states have a full-time anti-gouging law. You've got other states like in the gulf coast which they have hurricanes where plywood becomes an issue. Water becomes an issue. To a certain extent, gasoline becomes an issue. Batteries can become an issue. And the problem is, it's all very nice to say we're all for anti-gouging law and everyone should treat everyone else fairly but, when you get down to the details, what is an acceptable markup? I mean, if in fact you are willing to stand in line to pay this much versus you can pay 20 cents more up the block and not stand in line, you know, that's a consumer decision.

>> Michael Grant: Phoenix put up a potential road block to a transportation plan for the Valley this week. It threatened to pull out if the legislature makes any changes. Chris, just glancing casually at the editorial page of the "Tribune" this morning, I don't think you guys particularly cared for that ultimatum. Am I off base here?

>> Chris Coppola: I think that you're not off base at all. I don't work for the editorial page, but indeed that was the case for anybody who saw today's "Tribune." Mayor Rimsza, what I think he's doing is preparing for the next step in this as much as anything after MAG endorsed the plan which was no suprise. Which had been amended to appease East Valley concerns that more money had to go to road improvement projects. Now, we have some people in the legislature who next will deal with this come January to refer to the voters, making noise that maybe it didn't go far enough, particularly lawmakers from the East Valley saying we have to start taking into account things like Pinal County now, which opens up a completely different can of worms here because we're talking about a Maricopa County tax. And really, the whole bugaboo in all of this is light rail. It's critical to Phoenix in the next wave of the 20-year plan. There is a lot of redevelopment. They expect it to happen along the rail line in Central Phoenix. I think Mayor Rimsza is really trying to send the signal to lawmakers, hey, let's get on the same page here before this comes to you folks.

>> Robbie Sherwood: Lawmakers sent him a signal, too, because he was in the office the next day, and quickly backing off on some of the tough talk.

>> Michael Grant: Chris, you've been over at the legislature. I've never seen a 3-line bill go through there without tinkering, much less a $17 billion transportation bill.

>> Chris Coppola: I think there will be a lot of licking chops and cracking knuckles getting ready to zero in on this one. This is the classic bill that shakes out where there is a lot of money going to be at stake. We've got to figure out who gets what, and we have legislators who represent all parts of the Valley here. It's going to go right to the wire.

>> Howard Fischer: The lightning rod is this 27-1/2 miles of light rail, it's supposed to run from Tempe and then up Washington Street, up Central and then to Spectrum Mall. The question is, you know, how much detail do you put in there? We get into the number of stops. That's part of the plan. Is this going to be part of the legislation? Is this an issue? What about even the -- lawmakers, as you say, they can't help but touch things. They are like dogs on a fire hydrant, they have to leave their mark.

>> Michael Grant: The whole issue of whether or not it's street grade or down below street grade or for that matter, it's up above street grade, and I think one of the other issues, and I could see the -- I've been told the legislature will look at this, would be, all right, we'll build part of it, but you're not going to build a lot more of it until we figure out if the part that we built is doing any good.

>> Howard Fischer: Here's the problem. Let's assume you build 13 miles of light rail that starts, let's say, runs from Spectrum Mall to downtown Phoenix and out Washington Street. Nobody is going to use it. It doesn't start anywhere or go anywhere. So Phoenix will say, well, of course it didn't work, you know. And the fact is all mass transit is subsidized in one form or the mother.

>> Robbie Sherwood: It will extend to every business interest in the Valley, too. For example, the pressure to move into Pinal County with this plan and subsidies there is coming from the home builders association. Why? Because they develop everywhere else and that's where the people are moving to, the southeast valley, and so they would like some help getting roads to the developments where they are making money.

>> Howard Fischer: It's the same thing with the South Mountain freeway in terms of, you know, you've got people in what we've called the world's largest cul-de-sac, it's Ahwatukee. They are convinced there will be a road around the west end of the mountain any day now. We need to build in the southwest valley, and so this isn't a question that we're building where the people are. We're building where the developers want to make money.

>> Chris Coppola: I don't think that Mesa interests are going to be entirely warm to the idea of really attacking light rail completely, because they are -- part of this initial line is going to come into Mesa and there is a lot of city leaders there who want to see the next wave of this come into Mesa's downtown, which is struggling to turn itself around.

>> Howard Fischer: I've got to ask this, what makes anyone believe that having a trolly leaving downtown versus having a bus leaving downtown is going to make Mesa the garden spot of the East Valley?

>> Robbie Sherwood: Because I can't see it.

>> Nobody believes it, that's why they don't call it a trolly, but they believe light rail --

>> Howard Fischer: If you make the trolly much larger and noisier, now it's not a trolly.

>> Chris Coppola: Mesa is building a new arts center in downtown Mesa and Phoenix sees all of their destination points in redevelopment. There is some of that have going on in Mesa, too.

>> Michael Grant: Chris, one other complicating factor here, at least for those who would like to get the plan on the ballot in May is the fact that the legislature has to move very rapidly at the start of legislative session, which is the worst time for rapid movement.

>> Chris Coppola: Right, right. It is. And that is a concern, because of the timing issue to get the ballot going there, and so I think that anything they can do to reach a consensus going in would be ideally what everyone would want. We know that doesn't happen before the legislature starts. It's just --

>> Michael Grant: How big a PR hit do you think Tempe took this week with the announcement they are moving the Fiesta Bowl headquarters to Scottsdale?

>> Chris Coppola: I think they took somewhat of a PR hit. It stung. The idea of relocating the office, 20, 25 people employed there, in and of itself, it's not a big major player, but the name, the symbolism. They've already lost the game. Now they are losing the office, and the Fiesta Bowl museum that the Fiesta Bowl will open in Scottsdale's waterfront project, I think they were irritated by it. Mayor Giuliano made a few remarks in this morning's "Tribune," to the effect of what does football have to do with Nordstrom and high-end fashion? This will be right next to Scottsdale Fashion Square. It's that kind of feeling.

>> Robbie Sherwood: It was a real blow to civic pride. Former Mayor Harry Mitchell now in the Senate was just despondent. Throughout his tenure he worked hard to help build the Fiesta Bowl. He helped them through hard times when the Fiesta Bowl was desperate. Because there was no Martin Luther King holiday here, no team wanted to come. He put his administration on the line trying to promote the Fiesta Bowl. He was beside himself.

>> MichaelGrant: Almost out of time, but they will try to focus on the Insight Bowl?

>> Chris Coppola: The Insight Bowl, when the contract expires at Bank One Ballpark, they hope to move the game to Tempe.

>> Michael Grant: Panelists, we're out of time. Thanks very much.

>>> Michael Grant: To share your views or to contact us, visit our web site at www.kaet.asu.edu click on the word "Horizon" and that will lead you to transcripts, links and information on upcoming shows. See what's on "Horizon" Monday when we start a week-long series on Arizona forest management.

>> Merry : Arizona forests, how healthy are they and how are they being managed today? We'll talk with nationally known forest experts about wildfire suppression, logging and the impact of the work of environmentalists on Arizona's forest. Join us on Monday night at 7 p.m. on "Horizon."

>> Michael Grant: Tuesday, we continue the forest management coverage with a look at the damage done by bark beetles. Also learn about the Governor's CPS recommendations. Wednesday we'll take a look at efforts to redevelop the forest. Speaking of redevelopment, it's been 10 years since the former Williams air base was redeveloped. We'll tell you more about that. Thursday, we look at the future of forests and join us Thursday as well for our monthly visit with Governor Napolitano. That's next week on "Horizon." Thank you very much for joining us on this Friday edition. I hope you have an incredibly fine weekend. I'm Michael Grant. Good night.

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