April 15, 2005
State Rep. David Burnell Smith and the Citizens Clean Elections Commission appear headed to a legal showdown that could have sweeping implications for the future of publicly financed political campaigns.
Commission representative Gene Lemon told the commission’s board Thursday that Smith, R- Carefree, refused to negotiate a settlement.
Smith refused to forfeit his office and the commission refused any penalty short of removal.
The commission directed Smith to leave office last month after finding he violated spending and reporting laws. The commission also ordered him to pay a $10,000 fine and refund more than $34,000 in public financing.
The commission administers a voter-approved campaign financing system that provides public funds to statewide and legislative candidates who agree to abide by its guidelines.
With Smith’s refusal to leave office, the informal negotiation session earlier this week ended in about 10 minutes, Lemon told the board on Thursday.
Smith faces an April 24 deadline to file an appeal with the state Office of Administrative Hearings to overturn the commission’s ruling. If he doesn’t file by then, the commission could seek a judge’s order to oust him from office.
"The action the commission took was what they were required to take by virtue of the laws the voters passed," commission chairwoman Marcia Buching said.
"Sometimes voters pass things that aren’t upheld in their constitutionality in total and Mr. Smith has decided that he is going to use this situation to determine whether this portion of the statute is constitutional," she said.
Smith is the first elected official to be ordered to forfeit office by the commission, which was established in 1998.
Calls to Smith were referred to his attorney, Lee Miller, who did not respond to messages left at his office Thursday.
Barbara Lubin, executive director of the nonprofit Clean Elections Institute, which supports clean elections measures, said she welcomes a court challenge.
"It’s good to have a decision by the courts to put some teeth into the law — I think we’re going to win — so that people know they have to abide by the laws," she said.
The commission determined Smith spent more than 10 percent beyond state limits for publicly funded candidates. Smith overspent before the September primary by at least $6,000, or 17 percent, said Lemon, who served as the commission’s investigator.
Smith, an attorney, represents District 7, which includes north Scottsdale, Carefree and Cave Creek.