PHOENIX β For about a day this week, Mark Brnovich was governor.
Maybe.
The attorney general discovered Tuesday that Doug Ducey was on vacation with his family in California. And Secretary of State Michele Reagan left Tuesday morning for a conference.
The Arizona Constitution specifically says that when the governor is absent from the state, βthe power and duties of the office shall devolve upon the same person as in case of vacancy.β
And Brnovich is third in line.
The issue comes up quite regularly, with governors for years having left the state and even the country. But thereβs rarely been a controversy, as no secretary of state, attorney general or treasurer ever has tried to use that temporary authority on his or her own.
Brnovich, however, provoked a new discussion by going to Twitter, and, tongue firmly in cheek, publicly asked followers for suggestions on things theyβd like him to do.
And that left Ducey press aide Daniel Scarpinato, still in Arizona, to tamp down any talk that his boss was not governor this week while wandering around San Diego.
Brnovich, realizing heβd struck a nerve, issued a statement saying he has βfull confidence in Gov. Duceyβs capability to manage the state while across state lines.β
But he couldnβt resist a nod to what the constitution says he can do.
βI am declaring today Grateful Dead Appreciation Day β unofficially of course,β Brnovich quipped.
βWith all due respect to the attorney general, Gov. Ducey is more of a Rolling Stones kind of guy,β Scarpinato retorted.
Rock and roll notwithstanding, Scarpinato said Ducey operates from the perspective that the constitution should not be taken so literally.
βThe governor is the governor,β he said.
βHe remains the governor even if heβs traveling,β Scarpinato continued. βBut it is important to notify the next in succession, the secretary of state, because there may be specific duties that the governor canβt perform when heβs out of state.β
Such as?
Well, earlier this year state lawmakers approved legislation to immediately repeal the requirement that high schoolers get passing grades on the AIMS tests to graduate. It was approved on an emergency basis, allowing it to take effect immediately on the governorβs signature, because the latest round of tests were to be administered the following week.
But Ducey was out of town at the National Governors Association meeting. So Secretary of State Reagan stepped in to put her signature to the document, adding the word βactingβ below the printed title of βGovernor of Arizona.β
Scarpinato, however, said all that occurred with Duceyβs blessing.
Arizona courts have never addressed the question. But there is some precedent β on both sides of the argument β from other states that have similar constitutional provisions.
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 that the lieutenant governor does not become acting governor on the βtemporary casual absenceβ of the elected governor from the state, but only when the governorβs absence makes that person unable to perform his or her duties.
If Brnovich had been traveling while Ducey and Reagan were out of town, next in line would be the state treasurer, currently Jeff DeWit. There has been at least one situation in the last 40 years where that has happened.
There is no evidence it ever got beyond treasurer. But for the record, if the top four are gone, the line of succession goes only one deeper: the superintendent of public instruction, Diane Douglas.
