Recently, the Tempe City Council majority voted to put the Code of Conduct reform, in the form of Proposition No. 418 (Prop 418), on the November 6th ballot (). If Prop 418 is approved by the Tempe voters, it shall have the effect of amending the Tempe City Charter, to authorize the City Council to remove a council member for unlawful conduct.
More specifically, it will permit a super majority of the city council to remove a council member if there is clear and convincing evidence of unlawful conduct by a council member involving actions including, but not limited to, corruption, sexual abuse, violence and other such illegal actions. The power for elected bodies to remove members for such illegal misconduct, is already in effect for statewide and national public offices, up to and including the President of the United States. This power also currently exists for all the state senators and representatives in Arizona, including those who represent Tempe.
By design removal proceedings are never criminal proceedings. This affords the potentially removed public official the right to a fair trial, if there even is a criminal trial. In the case of Tempe, under the current Prop 418 ballot measure process, any council decision to remove a council member in the future would be appealable to the Maricopa County Superior Court System ()
While critics of Prop. 418 have been arguing that this power would enable members of the Tempe City Council to be removed for frivolous reasons, any deliberate consideration of actual historical cases quickly dispels this completely unsubstantiated myth. These historical examples were very well publicized. There is no shortage of archival information on this fascinating subject. While this power is rarely used, public officials have been removed from office, or have resigned from public office when faced by such proceedings. As the public record clearly demonstrates, the reasons for such successful actions are anything but trivial.
While it is public knowledge that this writer publicly supports Tempe Prop 418, the primary focus of this article will be to provide more public information how these removal cases have actually occurred, as opposed to using unfounded rhetoric about the subject.
United States Presidential Case Studies
On a presidential level, while a United States (U.S) President can be impeached by a majority vote by the U.S. House of Representatives, a President can only be removed if two-thirds of the U.S. Senate voted to convict and remove the U.S. President for office.
While former President Bill Clinton, was impeached, his impeachment trial in the U.S. Senate was foil for late night comedy routines, and was complete debacle in the legal impeachment sense. President Clinton was never convicted by the U.S. Senate (). This spectacle which was orchestrated by President Clinton’s opponents was widely credited with helping the Democratic Party make substantial off-year election gains in the following election.
The impeachment proceedings against former President Richard Nixon, or “Tricky Dick” as he was known by many, was quite a different story. Mr. Nixon could not trick his way out of the Watergate scandal.
On February 6, 1974, the U.S. House of Representatives, passed House Resolution 803 (), giving its Judiciary Committee authority to investigate whether sufficient grounds existed to impeach then President Richard Nixon, of high crimes and misdemeanors, primarily related to the Watergate scandal. As the investigation proceeded, Nixon stunned the nation and Congress when he disclosed that many of the actions being investigated by the Judiciary Committee, were recorded on audio tapes by the Nixon White House.
These tapes did not help Nixon. After reviewing the contents of tapes, and taking note of the missing portions of the tapes, members of Congress told Nixon that they had enough votes to impeach and convict him (). At that point, former President Richard Nixon resigned.
Nixon was succeeded by President Gerald Ford, who issued a pardon to Nixon. Because of this pardon, unlike many in his administration, Nixon never faced criminal charges or prison time for his involvement with the Watergate conspiracy.
Arizona State Case Studies
On an Arizona state level, in 1988 former Governor Evan Mecham was impeached for obstruction of justice and misusing public funds (). After being impeached, Mr. Mecham faced criminal charges, and he was found not guilty on all of them ( ). Mr. Mecham went on to run for Governor again, as well as U.S. Senator and U.S. President, but he was never elected for public office again.
In 1991, Arizona State Senator Carolyn Walker was recommended by the State Senate Ethics committee to be expelled, following allegations including video evidence, that Ms. Walker took thousands of dollars from a police informer in a vote-selling investigation known as “AzScam”. Ms. Walker was subsequently expelled by a full Arizona State Senate vote (). In a separate legal criminal action, 1992 Ms. Walker was convicted of conspiracy for taking $25,000 from the undercover agent, and making a false campaign contribution statement ( ).
In 2011, Sen. Scott Bundgaard was involving with a physical altercation with his then girlfriend on the side of the Piestewa Highway (). Mr. Bundgaard initially said he was attacked by her, but then he pleaded no contest to a misdemeanor endangerment charge stemming from the incident ( . When the Arizona State Senate held an ethics hearing, rather than testify, Mr. Bundgaard resigned ( ).
Tempe Justice of Peace Fred Ackel Sexual Harassment Case
On a Tempe level, the only publicly elected official in relatively contemporary history, who faced potential removal proceedings, was Tempe Precinct Justice of the Peace Fred S. Ackel during the period around 1987 (). As a result of sexual harassment, Mr. Ackel faced these proceedings two times. These potential removal proceedings took place before the Arizona Supreme Court. The first time was in 1987.
Before 1987, a woman who appeared before Mr. Ackel in court, testified that that Mr. Ackel told her that he had a “kissing cousin” who taught him everything he knew, including how to put a “rubber” on. After this courtroom exchange the woman went back to court again before Mr. Ackel. This time this woman was equipped with a hidden audio recording device. Between the statements of this woman and others, and considering the audio recording, the Arizona Supreme Court determined that the sexual harassment charges had merit. But they only censured Mr. Ackel for his behavior, and allowed him to stay on the bench.
Less than a year later, Mr. Ackel was fac ed with his second sex complaint. In 1988, after another formal complaint, Mr. Ackel resigned rather than face another removal proceeding (Arizona Republic, January 27, 1988, Page 3).
Former Justice of the Peace Ackel’s case warrants special attention. While sexual harassment are reprehensible actions, these actions by themselves are not criminal actions. Sexual harassment would be criminal if the sexual harasser was also providing alcohol to underage minor victims, or sexually assaulting them. But sexual harassment by itself is not criminal.
On this note, if Prop. 418 was approved by the voters, if a case that involved purely sexual harassment only were to brought forward as a Code of Conduct violation, it is not certain that the Tempe City Council would be able to remove a member for such conduct. Prop. 418 is still big improvement over the current Tempe situation, which allows city council members to stay on the council, even if clear and convincing evidence of criminal conduct exists.
Tempe Prop 418 is Right for our Future
The Prop 418 Code of Conduct reform issue is about the future. It is not about re-litigating the past. If in the future the Tempe City Council sees clear and convincing evidence, that a member of the council is acting like disgraced publicly elected officials such as former officials President Richard Nixon, Governor Evan Mecham, Senator Carolyn Walker and Sen. Scott Bundgaard, the Tempe City Council should not only have the ability to remove such individuals, they should also have the civic responsibility to do so.
Of the historical cases cited in this article, the reasons that public officials resigned when facing removal proceeding, or were removed, include criminal corruption, malfeasance in office, domestic violence and sexual harassment during official business. Anybody who argues that these are trivial reasons, does not well represent the values that Tempe stands for.
Our democracy in Tempe is too important to entrust public officials who commit such disgraceful actions to serve on our City Council. Tempe is much better than that. For these reasons, many Tempe citizens are supporting Tempe Prop 418, and we are urging others to do the same.