Acting governor Brewer signs emergency declaration

Secretary of State Jan Brewer declared herself acting governor Tuesday in the absence of Janet Napolitano.

And it didn’t take long for Brewer to get down to business. Acting with the blessing of Napolitano, who is in Italy, Brewer declared a state of emergency in Santa Cruz County, freeing up $200,000 to help deal with the flooding in the Nogales Wash and permitting the use of the National Guard and other state assets.

It was the first time since Napolitano took office in 2003 that she asked Brewer to sign a declaration as acting governor. She did so this time to avoid potential litigation over who really has the authority when the governor is out of the state, which could have thrown into question the legality of the emergency declaration.

But that doesn't mean Napolitano believes Brewer is the state's chief executive every time she leaves the state, said Tim Nelson, the governor's chief legal counsel.

Nelson said both he and Napolitano believe she remains the governor, regardless of where in the world she is located. And that, said Nelson, allows her to exercise all of her powers - even from Italy where she is on vacation.

According to the Arizona Constitution, the secretary of state inherits the "powers and duties of the office of governor'' during any "absence from the state or other temporary disability” of the elected governor.

Yet Napolitano and her staffers contend that’s an antiquated and meaningless provision in an age of cell phones and fax machines.

In fact, Nelson said the absent Napolitano has, on at least one occasion, directed a staffer to use her automated signature machine to sign a document, though he said he cannot remember what that was.

Nelson said there was no reason to test the constitution now.

"There's an open academic question about what it means to be 'absent from the state,’” he said. "We didn't need to cross that bridge to deal with this here. The fact is we authorized Secretary Brewer to do it.”

Brewer said while the emergency declaration document was prepared by Napolitano's staff, it was her decision to sign it. And Brewer said she "absolutely'' believes she is the acting governor whenever Napolitano is gone.

"The bottom line is that I am doing my job, which I took an oath for under the constitution,'' Brewer said. “She's out of the state and we have an emergency and I signed the declaration.''

Brewer said she does not foresee taking any additional gubernatorial actions in the next week and a half Napolitano is scheduled to be out of the country.

Each state has its own way of dealing with the absent-governor issue.

California has a provision its state constitution that’s nearly identical to Arizona’s, saying the absence of the governor from the state temporarily gives the power to the lieutenant governor. California courts upheld actions taken in 1979 and 1980 when Republican Mike Curb, the lieutenant governor, signed several executive orders while Democratic Gov. Jerry Brown was out of state - orders that Brown rescinded when he returned.

But the Missouri Supreme Court concluded in 1991 that the lieutenant governor does not become acting governor on the physical absence of the elected governor from the state, but only when the governor's absence makes that person unable to perform his or her duties.