A conference call during which Gov. Doug Ducey criticized Prop. 208 was legal, says a review by Michael Catlett, Arizonaโ€™s deputy solicitor general.

 Mamta Popat / Arizona Daily Star 2020

PHOENIX โ€” Gov. Doug Ducey is apparently off the legal hook over comments he made in a phone call from his office to business owners and managers urging that they try to defeat Proposition 208.

Michael Catlett, the stateโ€™s deputy solicitor general, said there is no question but that Ducey, in a conference call in September with some members of the business community, argued that the 3.5% surcharge on incomes above $250,000 for individuals and $500,000 for married couples filing jointly to help fund public education would be โ€œa small business killer.โ€

Arizona officials have certified Joe Bidenโ€™s narrow victory over President Donald Trump in the state. Democratic Secretary of State Katie Hobbs and Republican Gov. Doug Ducey stood up for the integrity of the election even as lawyers for Trump were across town Monday arguing without evidence to nine Republican lawmakers that the election was marred by fraud.

In the same conversation from his office, Ducey argued that the dollars raised โ€œwonโ€™t get to the classroom, and they wonโ€™t benefit our teachers.โ€ And he encouraged those on the call to โ€œgo directly to the (web) siteโ€ of foes of Proposition 208 and โ€œplease help spread the word.โ€

But Catlett, responding to a complaint filed by the attorney for the pro-208 Invest in Education Committee, said the governor did not violate laws that prohibit the use of public resource to influence an election. And he said the attorney generalโ€™s office will not pursue the matter.

It starts, Catlett said, with another section of that same law that says it does not deny the civil and political liberties guaranteed in the state and federal constitution. That, he said, entitles Ducey to speak on any โ€œmatter of public concern.โ€

Catlett also said it is irrelevant that the governor made his statements during a work day.

He said the only relevant consideration is whether he used โ€œpublic resources.โ€ And Catlett said the use of the stateโ€™s phone equipment is โ€œincidental.โ€

Finally, he noted that this was not a call the governor was making specifically to stir up opposition to the initiative.

โ€œHere, the (Invest in Education) Committee has not alleged that the topic of the governorโ€™s conference call โ€” the state of business in Arizona โ€” was improper,โ€ Catlett wrote.

โ€œThe committee has submitted no evidence that the state expended additional resources because the governor responded to a question from a constituent about his view on a matter of public concern,โ€ he continued. โ€œThus, it appears that whatever public resources were expended because of that response would have been expended regardless of whether the governor was communicating about a ballot measure.โ€

Voters approved the measure with 51.75% of the votes.

Since that time, business groups that tried to keep it off the ballot in the first place have filed a new lawsuit arguing constitutional and legal infirmities. But Maricopa County Superior Court Judge John Hannah Jr. has so far rebuffed legal efforts to keep the levy from taking effect.

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