An outside investigator for the Arizona Citizens Clean Elections Commission says Rep. David Burnell Smith should be removed from office for overspending on his 2004 campaign.
In a letter sent to Smith on Friday, investigator Gene Lemon said he will also ask the commission to order the legislator to repay all of his $34,625 public campaign funding and to pay a $10,000 fine.
The three proposed penalties are the harshest the commission can invoke under state law. Smith, a first-year Republican House member whose district includes western Scottsdale, Carefree and Cave Creek, has been under investigation since September after he admitted he already had overspent state limits as a Clean Elections candidate.
Lemon said he believes Smith when the legislator says he didn’t intentionally ignore spending limits but simply did a lousy job of keeping track of his expenditures. But, Lemon said, that’s no excuse because Smith signed every campaign check, so the lawmaker should have had a better idea of what was going on.
Smith has until Friday to formally respond to Lemon’s letter, and the commission is preparing for a possible special meeting next week to decide what to do. Smith’s attorney, Lee Miller, said Tuesday he is seeking a private meeting with Lemon to discuss alternatives.
"Under Lemon’s interpretation, there is no room for mistakes," Miller said. "Apparently, it’s all about bookkeeping and it’s all about interpreting accounting rules and not a whole lot about facilitating people getting elected."
Lemon, a former commission chairman, was hired in January to pursue the investigation against Smith and several other Republican lawmakers after agency executive director Colleen Connor stepped aside to avoid a possible conflict of interest.
The Clean Elections law says a publicly funded candidate should be taken off the ballot or a state official removed from the elected office if the commission determines that person overspent by more than 10 percent of the state limits.
The commission rejected a staff recommendation in 2002 to remove state attorney general candidate John Greene from that ballot, fining him the maximum of $10,000 instead. The commission never has considered whether to try to oust a sitting elected official. Smith has argued such a move would be unconstitutional.
A state-sponsored audit of Smith’s campaign showed he spent $38,909 in 2004 while receiving $34,625 from the state.
Smith said in February that the audit improperly counted his early private fund-raising which is allowed under the law. Smith’s own accountant concluded the campaign accidently overspent by $2,560 by giving too much money to a GOP operative. Smith has requested a refund of that money.
Lemon said even that if that’s true Smith spent about $33,000 of his total funding before the Sept. 7 primary. The primary spending limit was $22,745, Lemon said, which would mean Smith overspent by more than 30 percent.
However, the 10 percent "trigger" in state law applies only to a candidate’s entire spending for a two-year campaign cycle, and not to an individual election.