Kris Mayes's disappointing start

She is turning her office into a battering ram for liberal and progressive causes, such as union scale on public construction jobs.

In my over four decades of watching and participating in Arizona politics, no one has politicized the office of attorney general to the extent Mark Brnovich did. He turned it into a de facto campaign operation for his unsuccessful U.S. Senate bid.

If the office is elected, a politician will hold it, and politics will play a part in the agency’s operations. Nevertheless, I had hope that the politics would be minimized in Kris Mayes’s administration. 

There were reasons for that hope, or at least I thought. Although now a Democrat, Mayes was once a Republican, and an elected one at that (to the Arizona Corporation Commission). She began her professional odyssey as an excellent reporter without the evidence of political bias in her dispatches that is so frequent today.

There are good government reasons to want the politics to be minimized in the AG’s office. State agencies are better served by dispassionate legal guidance than legal advice that seeks to move policy in a particular direction. To the extent the office has law enforcement responsibilities, the laws should be faithfully executed and applied, as the saying goes, without fear or favor.

It’s clear that my hope was misplaced. That Mayes instead intends to use her office as a battering ram for liberal and progressive causes. 

The examples are already numerous. But perhaps the best illustration is the role Mayes is playing in attempting, futilely, to clear a legal path for the City of Phoenix to adopt a prevailing wage requirement for public works projects despite an explicit state statute forbidding it.

A bit of necessary wonkery. As it is calculated, the prevailing wage is effectively union scale. So, union shops clamber for the requirement to preclude competition on public construction jobs on the basis of relative labor costs. Which, in turn, means that taxpayers end up getting less bang for their buck. 

As a policy matter, prevailing wage requirements for public works are different and distinct from minimum wage laws that apply generally to the private sector, and whose primary effects hit the service sector.

In 1984, Arizona voters approved a ban on prevailing wage requirements for public works that applied to the state and all political subdivisions, including cities.

In 2016, voters approved an initiative increasing the state minimum wage and permitting cities and counties to adopt local minimum wages higher than the state one.

Recently, the City of Phoenix enacted a prevailing wage requirement for public construction projects. Democratic state Sen. Catherine Miranda filed a request for Mayes’s office to investigate, under a destructive law Republicans had passed requiring the withholding of state shared revenues if the AG determines that a city is violating state law. 

Now, Miranda supports Phoenix’s prevailing wage ordinance. It is unlikely that she would have triggered Mayes’s investigation without being reasonably confident that Mayes would bless it.

Nevertheless, after the investigative request was made, Phoenix rescinded the ordinance. 

That’s where things start to get curious. The investigative request was nullified by the ordinance repeal. On her own hook, Mayes decided to convert the investigative request into an opinion request. In other words, this was something Mayes wanted an excuse to weigh in on. 

Now, a dispassionate legal opinion would have been straightforward. The first rule of statutory construction is to read provisions harmoniously and give effect to as much of all of them as possible. In this case, that’s easy. As a policy matter, prevailing wage requirements and general minimum wage laws are different things. As a matter of law, they are also regarded and treated as different and distinct. Not only are the general minimum wage law and the prevailing wage ban in separate statutes, they are in entirely different statutory titles. The general minimum wage law is in the Labor title and the prevailing wage ban is in the Public Building and Improvements title.

There’s utterly nothing inconsistent or in conflict in a policy that says that there should be an economy-wide minimum wage. But, when it comes to public works, taxpayers should get the best bang for the buck. So, cities cannot adopt a requirement that effectively requires union scale on such construction. And that is, in fact, the policy voters have adopted.

So, reading the statutes harmoniously, cities can do what one statute permits: adopt generally applying minimum wage laws higher than the state one. But cannot do what the other forbids: adopt prevailing wage requirements for taxpayer-financed construction projects.

Instead, Mayes contrived a conflict. Since prevailing wage requirements set a minimum price for construction labor for public works, she purports that the ban conflicts with the 2016 grant of authority for cities to set minimum wages higher than the state one. And since the 2016 enactment is the most recent, it supersedes the prevailing wage ban enacted in 1984.

In other words, according to Mayes, by approving the 2016 proposition, voters exempted cities from the 1984 proposition. 

There is zero historical support for that. The 2016 proposition includes no language making such an exemption. The 2016 proposition doesn’t reference the section of statute containing the prevailing wage ban at all.

In the publicity pamphlet, the Legislative Council analysis doesn’t mention anything about an exemption to the prevailing wage ban. The pro and con statements in the pamphlet are voluminous. Nary a one mentions the prevailing wage ban. All are about an increase in the general minimum wage as commonly understood. The actual ballot language similarly only refers to a general minimum wage hike as commonly understood. Not a word about also exempting cities from the prevailing wage ban. 

In other words, Mayes did not issue a dispassionate legal opinion. She wrote an advocacy brief for prevailing wage proponents. And a pretty sketchy and patchy one at that. 

The problem with such a politicized approach to the office was quickly demonstrated. Phoenix city council members supporting a prevailing wage requirement took Mayes’s opinion as a legal green light. It is anything but. The legal hazard the city faces if it proceeds with adopting a prevailing wage ordinance remains. Mayes has given the council false comfort.

The city was threatened with a legal challenge if it went ahead with the ordinance. Mayes’s opinion does not negate that threat a whit. 

If the city is sued, Mayes’s opinion does not constrain a judge at all. And it is highly doubtful that a judge would follow Mayes’s contrived conflict reasoning rather than the more straightforward and preferred harmonization analysis. And particularly doubtful that appellate judges would find merit in Mayes’s invention of a hidden provision in the 2016 proposition not claimed or even seen at the time it was adopted.

Now, the Arizona Supreme Court has read into the state constitution a zone of independence for charter cities that state law cannot intrude upon. It has never come up with any useful description or rules about what falls within or without that zone. If challenged, Phoenix would be far better off arguing that a prevailing wage falls within that zone, rather than making Mayes’s argument about a contrived conflict and a hidden exemption.

One of the problems with an excessively politicized AG’s office is that it renders questionable everything the office does, even if it isn’t tainted by politics. Mayes hasn’t reached Brnovich levels of politicization, and probably never will. But she is well on her way of blowing her opportunity to establish herself, and her office, as a trustworthy source of dispassionate legal judgment and justice.   

Reach Robb at robtrobb@gmail.com.