Ethics Committee dismisses complaint against Kern

Rep. Anthony Kern, R-Glendale, at an August 2016 rally for Donald Trump's presidential campaign in Phoenix. Photo by Gage Skidmore | Flickr/CC BY-SA 2.0

The House Ethics Committee dismissed a complaint against Rep. Anthony Kern, concluding that his stint as a volunteer deputy with the Tombstone Marshal’s Office didn’t violate a provision of the Arizona Constitution barring legislators from employment with other government entities because he was unpaid.

Rep. T.J. Shope, who chairs the committee, wrote in his dismissal letter on Wednesday that no allegations in the complaint support a claim that Kern violated House rules.

Shope based his dismissal on the findings of Legislative Council, a nonpartisan division of legislative attorneys, whose opinion he sought. Legislative Council staff and attorneys told Shope that, because Kern was unpaid, he didn’t run afoul of the constitution’s prohibition on lawmakers holding other offices or being “otherwise employed” by the state, counties or cities.

And even if Kern’s work with Tombstone were barred by the Arizona Constitution, that wouldn’t jeopardize his position as a legislator, Legislative Council attorneys wrote. Instead, it would implicate his status as a volunteer reserve deputy marshal in Tombstone. Kern resigned from the Tombstone Marshal’s Office in March, just after the complaint was filed with the Ethics Committee.

The committee also found that Kern didn’t violate a separate provision of the constitution barring lawmakers from “holding any public office of profit or trust” under state or federal authority. Legislative Council cited Arizona Supreme Court precedent stating that to qualify as a public office, a position must be created by law, have defined duties and involve “some portion of sovereign power.”

Kern told the Arizona Mirror that Shope reached the right conclusion.

“I didn’t feel like there was any wrongdoing on my part. I know there wasn’t. I do know that the actual ethics complaint was politically motivated, and another opportunity for the left and the Democrats to try to smear my name,” said Kern, a Glendale Republican.

Rebecca McHood, a progressive activist, filed the complaint against Kern in April. A 1956 opinion by the Attorney General’s Office appeared to back up her allegation. In that opinion, the Attorney General’s Office found that a legislator can’t hold an office or be otherwise employed by a city, even if the position is unpaid.

Legislative Council said the 1956 opinion did not analyze the term “otherwise employed” or include any legal reasoning as to why a lawmaker would be barred from holding an unpaid position that isn’t a public office. Legislative Council said an unpaid position didn’t qualify as employment, noting that the Merriam-Webster’s dictionary’s definition of “employ” is “to provide with a job that pays wages or a salary.”

McHood could not immediately be reached for comment.

Kern said he consulted with an attorney before taking the position with Tombstone, and that the attorney advised him that the Arizona Constitution didn’t prohibit him from the position. Nonetheless, he said he resigned from the marshal’s office because of the complaint.

“I didn’t want to put Tombstone in any kind of negative light,” he said.

Kern said he has no immediate plans to rejoin the Tombstone Marshal’s Office or find another volunteer law enforcement position. He said he has three years to find another position before his law enforcement certification lapses.

Jeremy Duda
Associate Editor Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”


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