1 2 3 4 5 Colin F. Campbell, 004955 MaryR. O’Grady, 011434 Joseph N. Roth, 025725 OSBORN MALEDON, P.A. 2929 North Central Avenue, 21st Floor Phoenix, Arizona 85012-2793 (602) 640-9000 ccampbell@omlaw. com mogrady@omlaw. com j roth@omlaw. com c SEP 2 9 2015 S' COSJR'I , SEi'lL iJ 6 MICHAG. K. JEAf€S. CLERIC !Vi, OF LA CRUZ DEPUTY OURK Attorneys for Plaintiff 7 8 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 9 10 IN AND FOR THE COUNTY OF MARICOPA COUNTY Arizona State Board of Education, II Plaintiff, 12 O 13 O Q <> zUJ OZ -ir O 14 15 16 vs. Diane Douglas, in her official capacity as the Superintendent of Public Instruction for the State of Arizona, No. LC20i5^Uuu^u3 PLAINTIFF ARIZONA STATE BOARD OF EDUCATION’S MEMORANDUM IN SUPPORT OF SPECIAL ACTION COMPLAINT FOR MANDAMUS AND DECLARATORY RELIEF Defendant. 17 18 This lawsuit is the unfortunate result of the Superintendent of Public Instruction’s 19 stubborn refusal to execute policies approved by the State Board of Education (“Board”). 20 By statute, the Board is responsible for establishing policies, and the Superintendent is 21 charged with executing those policies. &eA.R.S. §§ 15-203(A)(4), (7),-251(5). The 22 Superintendent has, however, refused to perform her statutory responsibilities to execute 23 certain Board policies which with she disagrees. Because the Superintendent has no authority 24 to refuse to execute Board policy, the Board seeks a declaration establishing her responsibilities 25 and a mandamus order requiring the Superintendent to execute the Board policies. 26 27 28 There are three specific Board policies at issue in this lawsuit. Two require that the Board’s investigators (who handle certification applications and discipline of certificated 1 persons) have virtual access to the database and files they need to do their jobs. The third 2 concerns the Board’s website. Each policy concerns core functions of the Board. 3 I. BACKGROUND 4 A. The Superintendent is required to execute policies approved by the Board. 5 Both the Board and the office of Superintendent are established by the Arizona 6 Constitution, and the powers and duties of both are prescribed by law. Ariz. Const. Art. 11, 7 §§3,4. The Constitution establishes that the Superintendent is a member and the secretary of 8 the Board, and the Governor appoints the other ten members. Id. 9 A.R.S. § 15-203 establishes most of the responsibilities of the Board, which include the 10 duties to: 11 [ejxercise general supervision over and regulate the conduct of the public 12 school system and adopt any rules and policies it deems necessary to accomplish 13 this purpose,” § 15-203(A)(1); 14 U [djetermine the policy and work undertaken by it,” § 15-203(A)(4); 15 employ staff on the recommendation of the superintendent of public 16 instruction,” § 15-203(A)(5); 17 u [pjrescribe the duties of its employees if not prescribed by statute,” § 15- 18 203(A)(6); 19 [djelegate to the superintendent the execution of board policies and rules,” § 20 15-203(A)(7); 21 [rjecommend to the Legislature changes to the education statutes, § 1522 203(A)(8); 23 prescribe promotion and graduation requirements, A.R.S. § 15-203(A)(12), (13); 24 Hi. [sjupervise and control” certification for teachers and other school employees, 25 A.R.S. § 15-203(A)(14); 26 adopt proficiency examinations, A.R.S. § 15-203(A)(17); 27 28 1 • 1 take disciplinary action against certificated persons including “censure, 2 suspension ... or revocation of a certificate, upon a finding of inunoral or 3 unprofessional conduct;”. A.R.S. § 15-203(A)(20); see also A.R.S. § 15-350(A). 4 5 This is just a sample of the Board’s responsibilities, which are set forth in Chapter 2, Article 1 of Title 15, A.R.S. §§15-201 to -218. 6 The Superintendent’s statutory responsibilities are less extensive and detailed. She is 7 responsible for executing “under the direction of the [Board], the policies which have been 8 decided on by the [Board].” A.R.S. § 15-251(5). The Superintendent is also responsible for 9 directing “the work of all employees of the board who shall be employees of the department, 9? 10 A.R.S. § 15-251(4) and for directing “the performance of executive, administrative or 11 ministerial functions by the department of education or divisions or employees thereof,” A.R.S. 12 § 15-251(6). Arizona law also provides that the Department of Education (the “Department” or 13 ADE”) “shall be conducted under the control” of the Superintendent, A.R.S. § 15-231(D), and 14 vests in the Superintendent “all executive, administrative and ministerial functions of the 15 department,” A.R.S. § 15-231(B)(2). The Superintendent is also designated as “the executive 16 officer” of the Board. Id. 17 The less extensive statutory list of responsibilities for the Superintendent reflects that 18 much of her job involves executing the policies of the Board and overseeing the Department, 19 which itself has a lengthy list of statutory responsibilities, see A.R.S. §§ 15-231 to 249.04. 20 Because the bulk of the administrative work of the State relating to public education is 21 done by the Department, under the Superintendent’s supervision, the Department has a large 22 staff, with more than 570 full time equivalent employees.^ In contrast, the Board has a staff of 23 11, including administrative staff who coordinate Board meetings and other functions as 24 directed by the Board and investigators who investigate issues concerning certification and 25 allegations of immoral or unprofessional conduct by teachers or other people who hold 26 certificates. The Board’s investigative staff is necessary for the Board to fulfill its obligation to 27 [sjupervise and control the certification of’ teachers and other instructional employees who 28 1 http://www.azleg.gov/jlbc/Sept2015FTEpositions.pdf 2 1 are required to be certified. A.R.S. § 15-203(14). Until recently, the Board staff had offices in 2 the ADE building at 1535 West Jefferson in Phoenix. 3 B. The Superintendent’s actions to terminate Board staff and the Board’s policies to ensure that Board staff could continue its work. 4 The present controversy between the Board and the Superintendent has its roots in 5 actions taken by the Superintendent in February 2015. At that time, the Superintendent 6 attempted to unilaterally terminate the Board’s executive director and deputy executive director 7 - Christine Thompson and Sabrina Vasquez, respectively. Ex. A, Declaration of Christine 8 Thompson ^ 7. She took this action without notice to or authorization from the Board. Id. 9 Arizona law does not authorize the Superintendent to unilaterally terminate Board staff See 10 A.R.S. § 15 203(A)(5); Ariz. Op. Atty. Gen. No. 185-013; Ex. C at 5. 11 12 13 14 15 16 17 18 19 Because the Department of Administration, which oversees various administrative functions for State government, recognized that the Superintendent lacked the authority to unilaterally fire Board staff, Ms. Thompson and Ms. Vazquez remained on the payroll and continued working for the Board, despite the Superintendent’s action. Ex. A, Thompson Decl. 19. At a special meeting on February 13, 2015, the Board adopted a policy explicitly requiring the Superintendent to assure that Board staff had access to their offices, equipment and documents necessary to do their jobs and required her to permit Ms. Vazquez and Ms. Thompson to return to work at their offices in the ADE building (the “February 13 Policy”). Ex. 1 to Thompson Deck, Summary of Action of February 13, 2015 Board Meeting. After the 20 Board adopted this policy, the Board staff returned to work in the ADE building. Ex. A, 21 Thompson Decl. 110. 22 At the same time that the Superintendent, acting through ADE staff, attempted to 23 unilaterally terminate the Board’s leadership staff, ADE staff also gave a “stop work” order to 24 the Board’s lobbyist. M 111; Ex. 2 to Thompson Deck, Stop Work Notice. Again, this was 25 26 done without notice to or authorization from the Board. And, this action was done in the midst of the legislative session, despite the Board’s duty to advise the Legislature on legislation 27 concerning Arizona’s public schools. S'ee A.R.S. § 15-203(A)(8). 28 3 1 2 3 In the months following these actions against Board employees and contractors, the working environment for Board staff at ADE became untenable. Ex. A, Thompson Deck 12-14. Staff members regularly heard rumors that the Superintendent would again attempt 4 to fire Ms. Thompson and Ms. Vasquez. Id. There was a lack of communication on routine 5 matters and, at times, open hostility. Id. In an effort to ameliorate the increasing tension, the 6 Board enacted a policy on April 27, 2015 authorizing Ms. Thompson to negotiate a lease for 7 new office space and to execute intergovernmental agreements to provide support services for 8 Board staff (the “April 27 Policy”). See id. ^ 15; Ex. 4 to Thompson Deck, Summary of Action 9 of April 27, 2015 Board Meeting. 10 On May 9, 2015, all Board staff, including its investigators, moved into new offices in 11 the Executive Tower at 1700 West Washington, a few blocks west of the ADE building in 12 which their previous offices were located. Ex. A, Thompson Deck 118- The Superintendent, 13 however, objected to the move. To support the Superintendent’s opposition to Board staff 14 moving from the ADE building, ADE staff refused to comply with Board staff requests to 15 provide the investigators with virtual access to the databases and files they needed for their 16 work. Instead of recognizing the Board’s authority to establish offices for Board staff, ADE 17 staff insisted that Board staff return to the old offices in the ADE building. Id. 123. 18 C. 19 On May 15, 2015, the Superintendent filed a special action against the Board seeking The Superintendent’s lawsuit against the Board. 20 broad declarations about her powers with regard to Board staff, including whether she had the 21 authority to fire Board staff, and asking the court to require Board staff to move back to their 22 old ADE offices and declare the Board’s April 27 policies invalid. Ex. B, May 15, 2015 23 24 Special Action Complaint. The court granted the Board’s motion to dismiss the Superintendent’s case based on 25 justiciability concerns and because, “even if it presented a ripe, justiciable controversy, it failed 26 to state a claim for which relief could be granted.” Ex. C, Minute Entry dated July 13, 2015. 27 The court recognized that “[t]he statutes ... establish that the Board sets policy, while the 28 superintendent executes those policies.” Id. at 5. The court also recognized the Board’s 4 1 authority to enter intergovernmental agreements and contracts, as authorized in the April 27 2 policies, and that the Board, not the Superintendent, has the authority to fire Board employees. 3 Id. 4 5 6 7 8 9 The Superintendent is currently appealing the dismissal of her lawsuit against the Board. Ex. D, Notice of Appeal. C. The Superintendent has disregarded Board policy requiring her to provide the Board’s investigative staff with virtual access to ADE’s Certification Database. While the Superintendent’s lawsuit was pending, the Board continued to try to work with the Superintendent and ADE staff to get its work done. In furtherance of the Board’s 10 policy decision to relocate its staff to different offices (as approved by the April 27 Policy), the 11 Board sought to provide its investigative staff with virtual access to the Certification Database 12 that ADE maintains and that the Board’s investigators use to perform their duties. Ex. A, 13 Thompson Decl. ^ 19. 14 The Board is responsible for overseeing the certification process for teachers and others 15 who hold instructional positions in public schools. A.R.S. § 15-203(A)(14). It is also 16 responsible for disciplining certificate holders accused of immoral and unprofessional conduct. 17 A.R.S. §§ 15-203(A)(20); see also A.R.S. § 15-350(A). The Certification Database maintained 18 by ADE contains certification, education, employment, and disciplinary histories of certificated 19 persons. Ex. A, Thompson Decl. 120. The Board’s investigative staff regularly uses this 20 Certification Database when conducting its work to access case notes and disciplinary histories 21 and to input investigative notes and update the fingerprint clearance card status of certificated 22 persons. M ^ 21. 23 Because the Superintendent and ADE staff did not provide virtual access to the 24 Certification Database for any Board staff after Board staff moved to new offices, on May 18, 25 2015, the Board enacted a policy requiring the Superintendent to provide virtual access to the 26 Certification Database for its investigative staff (the “May 18 Policy”). Ex. 5 to Thompson 27 Deck, Summary of Action of May 18, 2015 Board Meeting. The Superintendent refused to 28 execute the May 18 Policy. Ex. A, Thompson Decl. f 32. The Board did not pursue the 5 1 Superintendent’s failure to execute the virtual access policy while the Superintendent’s lawsuit 2 challenging the move was pending, but after the court dismissed the Superintendent’s lawsuit, 3 the Board again took action to require that the Superintendent comply with May 18 Policy and 4 provide virtual access to the Certification Database for the Board’s investigative staff Id. at f 5 33. Although this court explicitly held that the April 27 Policy was indeed a policy and 6 rejected the Superintendent’s lawsuit challenging the policy, see Ex. C, Minute Entry, the 7 Superintendent still refused to execute the Board’s policy. Coimsel for the Superintendent 8 failed to respond to two letters from the Board requesting the Superintendent execute the May 9 18 Policy. Ex. 8 to Thompson Dec!., O’Grady Letters to Tully. 10 As a result, the Board enacted another policy on August 24, 2015 requiring that the 11 Superintendent provide virtual access to the Certification Database for its investigative staff by 12 August 25, 2015 (the “August 24 Policy”). Ex. 9 to Thompson Deck, Summary of Action of 13 August 24, 2015 Board Meeting. The Superintendent refused and continues to refuse to 14 execute the August 24 Policy. Ex. A, Thompson Deck 136; Ex. 13 to Thompson Deck, Tully 15 September 17, 2015 Letter to O’Grady. 16 The Board’s investigative staff is therefore left in a position where it does not have full 17 and unencumbered access to a tool that Board policy requires that it have to conduct its work. 18 In order to use the Certification Database, members of the investigative staff must leave their 19 offices at the Executive Tower and physically go to the ADE building, where the 20 Superintendent has required that they sign in and be escorted to their old offices in the ADE 21 building. Ex. A, Thompson Deck 22 access their old offices, which are equipped with computers that allow access to the 23 Certification Database only between the hours of 8 a.m. and 5 p.m. Monday through Friday. 24 See id. 127. The investigative staff, however, generally works four 10-hour shifts per week. 25 See id. f 28. Accordingly, members of the investigative staff are not always able to access the 26 Certification Database during portions of their normal working hours. See id. 27 28 25-26. Investigative staff members are permitted to It is undisputed that the Superintendent has failed and continues to fail to execute the Board’s August 24 and May 18 policies regarding the virtual access that the Board’s 6 1 investigative staff must have to certain information they need to perform their jobs. By 2 refusing to execute these Board policies, the Superintendent is violating her statutory duty to 3 execute Board policy. A.R.S. § 15-251(5). 4 5 D. The Superintendent has also refused to execute a Board policy requiring her to redirect web traffic from the Board’s old website to its new website. The Board also adopted a policy regarding its website that the Superintendent has failed 6 to execute. As a result, there are now two websites for the State Board of Education, one that is 7 maintained by the Board staff and one that is maintained by ADE. Both websites claim to be 8 the official place to post meeting notices and agendas to comply with the Open Meeting Law, 9 but the website maintained by ADE is not current. See Exs. 10 and 11 to Thompson Decl. 10 When the Board staff relocated to its offices at the Executive Tower, a new Board 11 website was also established, with the assistance of the Department of Administration (the 12 New Website”). Ex. A, Thompson Decl. 38-39. Its old website was part of the ADE 13 website (the “Old Website”). Id. ^ 37. Establishing the New Website was related to the 14 Board’s April 27 authorization to enter agreements for technology support services. Id. f 15. 15 When Board staff requested that ADE staff redirect traffic to the New Website, some ADE staff 16 complied for a short time, but that cooperation ended and the out-of-date, inaccurate Old 17 Website remains available to the public and traffic is not redirected to the Board’s new 18 accurate, up-to-date website. Id. 41-43 19 Because of the inability to resolve this website issue at a staff level, the Board addressed 20 the issue at its September 15, 2015 meeting. At that meeting, the Board officially adopted a 21 policy recognizing the New Website as the website of the Board and directing the 22 Superintendent to have the Department remove the Old Website and redirect traffic to the New 23 Website (the “September 15 Policy”). Ex. 12 to Thompson Decl., Summary of Action of 24 September 15, 2015 Board Meeting. The Superintendent failed and refused to comply with this 25 simple Board policy. Ex. 13 to Thompson Decl., Tully Letter to O’Grady. 26 As a result, the public can still be misled by the inaccurate and out-of-date Old Website. 27 And without judicial intervention this misleading website will remain available to the public. 28 Unlike the problem of virtual access for the investigators, the Board opted not to wait months 7 1 to file a lawsuit requiring compliance with this policy. It set a deadline, and that deadline has 2 passed. And, through her counsel, the Superintendent has conveyed that she plans to continue 3 to disregard the Board policy. See id. 4 II. 5 6 ARGUMENT A. The Board has lawfully enacted policies that the Superintendent is required by law to execute. Against this factual and legal backdrop, the Superintendent’s wrongdoing is plain. The 7 Superintendent may not use her practical control over ADE resources to turn her single Board 8 vote into a veto of Board policies she dislikes. The Board has lawfully enacted two policies 9 (the May 18 Policy and the August 24 Policy) requiring that virtual access to ADE Certification 10 Database be provided to its investigative staff and one policy requiring that web traffic be 11 redirected from the Board’s Old Website to its New Website (the September 15 Policy). Exs. 12 5, 9, and 12 to Thompson Deck The Superintendent has not executed these policies. Ex. 13 to 13 Thompson Deck, Tully Letter to O’Grady. As noted above, the Board’s authority for setting 14 policy is well-established. See A.R.S. § 15-203(A)(1). Indeed, the July 2015 ruling dismissing 15 the Superintendent’s lawsuit against the Board noted that “the determination of policy is 16 entrusted to the Board (of which the Superintendent is a voting member).” Ex. C, Minute 17 Entry (emphasis added). As a voting member of the Board, the Superintendent is able to debate 18 and vote on Board policy. Once a policy is enacted, however, the Superintendent is required by 19 law to execute it. See A.R.S. §§ 15-203(A)(7) and 15-251(5). The plain language of A.R.S. § 20 15-251(5) makes clear that the Superintendent has no discretion in the matter - the 21 Superintendent shall “[ejxecute, under the direction of the [Board], the policies which have 22 been decided on by the [Board]. 95 23 The Superintendent’s argument for failing to execute the Board policies at issue here 24 goes back to the issues that she raised in her dismissed lawsuit and that are presently on appeal. 25 See Ex. 13 to Thompson Deck, Tully Letter to O’Grady. For example, she insists that the 26 investigators do not need virtual access to the Certification Database, as the Board has directed, 27 because “[t]hey simply need to show up for work at the office designated for them by their 28 boss, the Superintendent.” Id. at 2. The Board, however, made the policy decision in April to 8 1 seek new office space for Board staff, and her lawsuit challenging that Board policy failed. See 2 Exs. B and C. Moreover, the Board has specific statutory responsibility to “[s]upervise and 3 control” the certification process. A.R.S. § 15-203(A)(14). Because the Board has established 4 a policy mandating that the Board’s investigators have virtual access to the Certification 5 Database, the Superintendent is responsible for executing that policy. A.R.S. § 15-251(5). The 6 Superintendent does not have discretion to ignore Board policy, nor does she have discretion to 7 impose her own policy about how, when, and where Board certification investigators perform 8 their jobs. 9 With regard to the website, the Superintendent questions when this policy was 10 established and the authority for the Board’s policy. Ex. 13 to Thompson Deck, Tully Letter at 11 2. The Board established this policy at its meeting September 15, 2015. See Ex. 12 to 12 Thompson Deck The formal Board action occurred as a result of the inability to resolve issues 13 concerning the website at a staff level. Ex. A, Thompson Deck 14 bases her claim that the website policy is illegal on her constitutional designation as the 15 Secretary of the Board. Ex. 13 to Thompson Deck, Tully Letter at 2. But the Constitution 16 provides that the Superintendent’s “powers and duties shall be prescribed by law.” Ariz. 17 Const., art. 11, § 4. And the statutes establish her duty to execute Board policy. A.R.S. § 15- 18 251(5). The September 15 Policy establishes an independent Board website and provides 19 direction to the Superintendent regarding the execution of that policy so the public is not 20 confused by the out-of-date and inaccurate Board website that is presently on the ADE website. 21 Once the Board has adopted the policy, the Superintendent’s non-discretionary statutory 22 responsibility is to execute that policy. Id. 41-43. The Superintendent 23 By refusing and continuing to refuse to execute the August 24 and September 15 24 Policies, the Superintendent is violating A.R.S. § 15-251(5). The Board is therefore entitled to 25 and respectfully requests that this Court enter an order declaring that the Superintendent’s 26 refusal to execute the August 24, and September 15 Policies is in violation of the law. 27 28 9 B. 1 2 The Court should issue a writ of mandamus because the Board has no plain, adequate and speedy remedy at law to compel the Superintendent to fulfill her statutory duties. Mandamus is a remedy used to compel a public officer to perform a duty required by 3 law.” Yes on Prop 200 v. Napolitano, 215 Ariz. 458, 464 9, 160 P.3d 1216, 1222 4 (App. 2007). Mandamus is available where a “public officer is specifically required by law to 5 perform [an] act.” Blakenbaker v. Marks, 231 Ariz. 575, 577 f 7, 299 P.3d 747, 749 6 (App. 2013). In determining whether a public officer is required by law to perform an act, 7 courts look to whether the act is ministerial, meaning it “permits a public officer ‘only one 8 course of action on an admitted state of facts. 559 Id. (quoting Za/zn v. Thompson, 185 Ariz. 408, 9 411, 916 P.2d 1124,1127 (App. 1995)). 10 Here, the plain language of A.R.S. §§ 15-203(A) and 15-251 makes clear that the 11 Superintendent is required by law to execute policies enacted by the Board. These statutes give 12 the Superintendent no discretion in the matter - if the Board enacts a policy, she must execute 13 it. The Board has enacted two policies requiring that its investigative staff be provide with 14 virtual access to ADE’s Certification Database - the May 18 Policy and the August 24 Policy 15 and one policy requiring that web traffic be redirected from its Old Website to its New Website 16 - the September 15 Policy. The Superintendent has refused and continues to refuse to execute 17 these policies. The Superintendent does not have the discretion to decline to execute these 18 policies. See A.R.S. §§ 15-203(A)(7) and 15-251(5). Because the Board has no other plain, 19 adequate or speedy remedy at law, the Board is entitled to and requests that this Court issue a 20 writ of mandamus requiring the Superintendent to execute the Board’s August 24 and 21 September 15 Policies. 22 23 III. CONCLUSION For the reasons set forth above, the Board respectfully requests that this Court grant the 24 25 26 relief the Board has requested and order the Superintendent to comply with the Board’s August 24 and September 15 Policies. 27 28 10 i; 1 2 3 4 5 6 7 DATED this 29* day of September, 2015. OSBORN MALEDON, P.A. By. ipbell ColmF(^ Mary R. O’Grady Joseph N. Roth 2929 North Central Avenue, 21st Floor Phoenix, Arizona 85012-2793 Attorneys for Plaintiff 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 EXHIBIT A 1 2 3 4 5 Colin F. Campbell, 004955 Mary R. O’Grady, 011434 Joseph N. Roth, 025725 OSBORN MALEDON, P.A. 2929 N. Central Avenue, 21st Floor '^hoenix, Arizona 85012-2793 (602) 640-9000 ccampbell@omlaw. com mogrady@omlaw. com _ roth@omlaw.com 6 Attorneys for Plaintiff 7 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA COUNTY 8 12^ iz; O K O CQ Q Arizona State Board of Education, 10 Plaintiff, 11 vs. 12 Diane Douglas, in her official capacity as the Superintendent of Public Instruction for the State of Arizona, 13 << <>oz «o O 9 No. DECLARATION OF CHRISTINE M. THOMPSON Defendant. 14 15 16 17 I, Christine M. Thompson, under penalty of perjury, declare as follows based on my own personal knowledge: 18 1. I am the Executive Director of the State Board of Education (the “Board”). 19 2. I have served as the Board’s Executive Director since January 3, 2014. 20 3. As part of my job responsibilities, I directly supervise other members of the 21 22 23 24 Board staff. 4. The Board has 11 staff positions, including an executive director, a deputy executive director, a reading director, an executive assistant and an investigative staff 5. Several of the Board’s staff members are part of the Board’s investigative unit 25 and are responsible for responding to requests for certification and investigative complaints of 26 immoral or unprofessional conduct levied against certificated persons. 27 28 6. Prior to this year, the Board’s staff worked out of offices in the Department of Education (“ADE”) building located at 1535 West Jefferson in Phoenix. 1 7. On or about February 10 or 11, 2015, Superintendent of Public Instruction Diane 2 Douglas (the “Superintendent”) purported to fire me and my deputy at the time, Sabrina 3 Vasquez, without notice to or authorization from the Board. 4 8. The attempted terminations were communicated to Ms. Vasquez through ADE 5 Human Resources staff on February 11, 2015 and by letters dated February 10, 2015 from 6 Michael Bradley, the Superintendent’s Chief of Staff, to Ms. Vazquez and me. 7 9. Because the Superintendent had no authority to fire me or Ms. Vasquez, we 8 continued working for the Board although we were prevented from accessing our email 9 accounts and our offices in the ADE building. 10 10. We returned to work at our ADE offices pursuant to a Board policy enacted 11 February 13, 2015, which required the Superintendent to provide us with access to our offices 12 and email accounts. The Board’s February 13 policy is set forth in Exhibit 1 hereto (at 2). 13 11. Around the same time that the Superintendent attempted to terminate me and 14 Ms. Vasquez, ADE staff also issued a “stop work” order to the Board’s lobbyist without notice 15 to or approval from the Board. The Stop Work notice is Exhibit 2 hereto. 16 17 18 12. Upon returning to work at ADE, relationships between Board staff and ADE staff quickly deteriorated. 13. Because the Superintendent’s attempted termination of me and Ms. Vasquez 19 was highly publicized, members of my staff and I regularly heard rumors from ADE staff 20 members and in the press that the Superintendent would again attempt to fire me and Ms. 21 Vasquez. 22 14. Additionally, a lack of communication on routine matters developed along with, 23 at times, open hostility. Although ADE staff blamed Board staff for the problems, nobody 24 denied that there were serious problems. An email from the Superintendent’s Chief of Staff is 25 Exhibit 3 hereto. 26 27 15. At its April 27, 2015 meeting, the Board authorized me to negotiate a lease for new office space for Board staff and to negotiate intergovernmental agreements for 28 2 1 administrative support in the areas of human resources, procurement and technology. These 2 Policies are described in Exhibit 4 hereto (at 4-5). 3 4 5 16. I negotiated a lease for new office space with the Department of Administration (“DOA”) and in consultation with the Board President. 17. I also made arrangements with DOA to receive administrative support services 6 from DOA, to maintain phone services for Board staff, and to establish new email addresses for 7 Board staff and a new website for the Board. 8 9 10 18. The Board’s staff moved into our new offices, located in the Executive Tower at 1700 West Washington in Phoenix, on May 9, 2015. 19. As part of the move, I requested that the investigative staff be provided with 11 virtual access to ADE’s Certification Database so that they could access said database from 12 their new offices in the Executive Tower. A copy of my May 8, 2015 letter regarding the move 13 that referenced the database issue is attached as Exhibit 5 hereto. 14 20. The Certification Database contains certification, education, employment, and 15 disciplinary histories of certificated persons, as well as investigative notes, application 16 processing notes and contact/demographic information. 17 21. Access to the Certification Database is necessary for members of the 18 investigative staff to do their jobs. They use it to view previous case notes and disciplinary 19 histories to provide information to school districts or charter schools whose employees may be 20 under investigation, to add case notes, to obtain information - such as disciplinary history, 21 employment history and contact information - which is relevant to pending investigations, and 22 to update the fingerprint clearance card status of certificated educators. 23 22. Prior to our move, I was always able to access the Certification Database when I 24 remotely accessed my office computer via a Virtual Private Network (VPN) connection made 25 through https://vpn.azed.gov. 26 23. ADE staff did not respond to my request and instead insisted that Board staff 27 return to work in their old offices in the ADE building. A copy of emails attempting to resolve 28 the access issues following the move to our new staff offices are included in Exhibit 6. 3 1 2 3 4 5 24. I have not been able to virtually access the Certification Database since the ADE accounts for the Board staff were disabled by ADE on May 11, 2015. 25. In order to access the Certification Database, members of the investigative staff must leave their offices at the Executive Tower and travel to the ADE building. 26. Once they arrive at the ADE building, the investigative staff members must sign 6 in as visitors and be escorted to their old offices. The investigative staff members must be 7 escorted at all times while they are in the ADE building. 8 9 27. The offices provided by ADE for the investigative staff members are equipped with computers which allow access to the Certification Database between the hours of 8 a.m. 10 and 5 p.m. 11 28. The investigative staff generally works four ten-hour shifts per week. 12 Accordingly, the investigative staff is not able to access the Certification Database during 13 portions of their normal working hours. 14 15 16 29. The lack of virtual access to the Certification Database has slowed the work of the Board’s investigative unit considerably. 30. When a school district contacts the Board regarding a question about a 17 certificated person or an investigation, a member of the investigative staff must travel to ADE 18 and be escorted to an office between the hours of 8 a.m. and 5 p.m. in order to access the 19 Certification Database and respond to the question. 20 31. The Board enacted a policy on May 18, 2015 requiring that the Superintendent 21 provide the investigative staff with virtual access to the Certification Database (the “May 18 22 Policy”). The May 18 Policy is included in Exhibit 7 hereto (at 10-11). 23 32. The Superintendent did not execute the May 18 Policy. 24 33. The Board did not immediately take further action regarding the virtual access 25 26 issue as a result of the Superintendent’s pending special action. 34. Following the dismissal of the Superintendent’s special action, the Board again 27 sought virtual access to the Certification Database. Attorneys for the Board sent two letters to 28 the Superintendent’s attorney regarding the virtual access issue. No response was received. 4 1 Copies of letters from the Board’s lawyers concerning compliance with the Board’s May 18 2 policy are in Exhibit 8 hereto. 35. 3 The Board then enacted another policy on August 24, 2015 requiring the 4 Superintendent to provide its investigative staff with virtual access to the Certification Database 5 by August 25, 2015 (the “August 24 Policy”). The Board’s August 24 Policy is Exhibit 9 (at 6 8). 36. 7 8 The Superintendent has not executed the August 24 Policy and the investigative staff is still without virtual access to the Certification Database. 9 37. Historically, the Board’s website has been linked to the ADE website - 10 http://www.azed.gov/state-board-education/ (the “Old Website”) - and maintained by Board 11 staff with technical assistance from ADE. 12 38. Coinciding with our move to the Executive Tower, I made arrangements with 13 DOA to build a new website for the Board. In fact, the Board had considered establishing an 14 independent website for many years. 15 16 39. Website”), went live on May 11, 2015. 17 18 19 The Board’s new website, available at https://azsbe.az.gov/ (the “New 40. The New Website is maintained by Board staff, with technical assistance from 41. Shortly thereafter, on June 2, 2015, my administrative assistant sent an email DOA. 20 message to ADE requesting that the Old Website be taken down and redirected to the New 21 Website. An ADE employee responded that she would take down the Old Website and redirect 22 it to the New Website. 23 42. Although ADE redirected traffic to the Board’s New Website for approximately 24 one week, the link to the Old Website is currently active and no longer redirects to the New 25 Website. 26 27 43. ADE has not responded to numerous requests made by me and by DOA staff to deactivate the Old Website and redirect traffic from the Old Website to the New Website. 28 5 1 44. The location of the Board’s website is particularly important because the 2 Board’s meeting notices, agendas, and minutes are posted there in compliance with Arizona’s 3 Open Meeting Law. Both the Old Website and the New Website state that they are the official 4 posting location for the Board’s meeting notices, agendas, and minutes. A screen shot of a 5 portion of the Old Website is Exhibit 10 hereto, and a screen sheet of a portion of the New 6 Website is Exhibit 11 hereto. 7 45. I post the Board’s meeting notices, agendas, and minutes on the New Website. 8 46. I do not have access to the Old Website and the Old Website has not been 9 10 updated to reflect recent meetings of the Board. Board staff has not been able to maintain the Old Website since ADE accounts for Board staff were disabled on May 11, 2015. 11 47. 12 the Board. 13 48. 14 15 The Old Website also does not list the correct address or contact information for The Board’s updated contact information and address are available on the New Website. 49. The Board enacted a policy on September 15, 2015 recognizing the New 16 Website as the official website of the Board and requiring the Superintendent to redirect all 17 web traffic from the Old Website to the New Website. The September 15, 2015 website policy 18 is in Exhibit 12 (at 2). 19 50. The Superintendent has refused and continues to refuse to execute the website 20 policy. A September 17, 2015 letter from the Superintendent’s attorney confirms that the 21 Superintendent will not comply with the website policy or the policy concerning investigator 22 access to the Certification Database. A letter from the Board’s attorney and the September 17, 23 2015 response from the Superintendent’s lawyer are Exhibit 13. 24 DATED this 29th day of September, 2015. 25 26 2 By Christine Thompson 27 28 6 EXHIBIT 1 ARIZONA STATE BOARD OF EDUCATION SUMMARY OF BOARD ACTION SPECIAL BOARD MEETING ________ FEBRUARY 13, 2015________ MEMBERS ABSENT: MEMBERS PRESENT: Ms. Hamilton Superintendent Douglas Dr. Hart-Attended Telephonically Mr. Jacks Mr. Moore Ms. Rogers Dr. Rottweiler Vice President Ballantyne President Miller Meeting called to order at 1:02pm Pledge of Allegiance, Moment of Silence and Roll Call confirmed a quorum. CALL TO ORDER, PLEDGE OF ALLEGIANCE, MOMENT OF SILENCE, AND ROLL CALL President Miller reversed the order of the agenda and began discussion with Item 2. Recorded comments are available (Part 2 / 14:00) MOTION Vice President Ballantyne made a motion to cancel the February 23,2015 Board meeting. Member Moore seconded the motion. Item 1. Presentation, discussion and potential action to revise the 2015 State Board of Education Calendar of Regular Meetings to cancel the February 23, 2015 meeting. Motion passed with a majority vote (7-1) (No: Superintendent Douglas) Recorded comments are available (Part I / 00:12) Item 2. Presentation, discussion and potential action to direct the Superintendent of Public Instruction to grant all employees of the State Board of Education physical and technological access to all State Board of Education employee offices, documents, email, electronic accounts, and records. Pursuant to A.R.S. § 38-431.03(A)(3) and(4), the Board may vote to convene in executive session to review confidential information and/or for discussion or consultation for legal advice. Any legal action will be taken in open session. MOTION Vice President Ballantyne made a motion to move into Executive Session pursuant to A.R.S 38431.03(A) (3) and (4). Member Rogers seconded the motion. Motion passed with a majority vote. (7-1) (No: Superintendent Douglas) Board convened into Executive Session at 1:05 p.m. Board reconvened back into Special Session at 1:26 p.m. 1 Recorded comments available (Part 2 / 03:02) MOTION Vice President Ballantyne made a motion to adopt a policy requiring that all board employees have access to their offices, computer equipment, email accounts, telephones and documents to fulfill their duties for the Board and pursuant to Pursuant to A.R.5. 15-203(A)(7) and A.R.S. 15251(5), the Board delegates to executing this policy to the State Superintendent of Public Instruction who is directed to provide the access described in this policy to all Board members including Christine Thompson and Sabrina Vazquez by no later than 8:30 am MST on February 17,2015. President Miller corrected the motion to say Board employees not Board members. Dr. Rottweiler seconded the motion with that modification. Motion passed with a majority vote. (7-1) President Miller requested a Roll Call vote. Superintendent Douglas: No Dr. Hart: Aye Mr. Jacks: Aye Mr. Moore: Aye Ms. Rogers: Aye Dr. Rottweiler: Aye Vice President Ballantyne: Aye President Miller: Aye Recorded comments available (Part 2 / 16:54) ADJOURN MOTION Member Rottweiler made a motion to adjourn. Vice President Ballantyne seconded the motion. Motion passed unanimously. Meeting adjourned at 1:45pm 2 EXHIBIT 2 State of Arizona Department of Education February 11, 2015 Peters, Cannata & Moody, PLC 3030 N. Third Street, Ste. 905 Phoenix, AZ 85012 Re: Stop Work Order- ADEDl 1-010941 Dear Mrs. Cannata: As per the Uniform Terms and Conditions, page 7, Section 8, State’s Contractual Remedies, 8.2 Stop Work Order: The State may, at any time, by written order to the Contractor, require the Contractor to stop all or any part, of the work called for by this contract for a period of 20 business days indicated by the State after the order is delivered. Peters, Cannata & Moody, PLC is to immediately comply with the Stop Work Order terms and take all reasonable steps to minimize the incurrence of the cost allocable to work covered by the order during the period of work stoppage. Please sign and date below to indicate your acknowledgement and acceptance of the above terms. J-/N6 Patty Clajk Chief Procurement Officer Arizona Department of Education Date Signatim Susan Cannata Peters, Cannata, & Moody, PLC Date Signature n EXHIBIT 3 From: Sent: To: Cc: Subject: Bradley, Michael W. Monday, April 20, 2015 12:00 AM Danny Seiden; Daniel Scarpinato; Victor Riches; Kirk Adams Douglas, Diane A few confidential heads up... Importance: High I wanted to let you know about two issues: 1) The Department discovered multiple school districts had abnormal results on last year's test that indicate They involve erasing wrong answers and willful cheating. The worst of which is then replacing them with correct answers. Statistically, there is a reasonable amount of such wrong to right erasures. These vastly exceeded those amounts. As a result, ADE has thrown out the results of the identified tests. In addition, we will be turning over our investigation and findings to the Attorney General to decide whether to investigate further or if any criminal activities or conspiracies were involved, given that test scores can directly impact funding. As you may have heard, in a similar situation in Atlanta, several school officials were sentenced to prison last week. We plan to announce we are turning the matter over to the AG and that it will be up to them to review it after that and make a decision. 2) The Board of Education staff are creating a hostile work environment and our HR department is being flooded have been reported for several verbal confrontations md with complaints. and attacks on ADE staff in elevators and while walking by. Last week we had a much more serious issue. . assaulted some of our staff with many witnesses and would not leave the area despite at least three attempts to ask her to return to her work area. The Superintendent ordered each staff to file a separate description of the occurrence with HR. Neither I nor the Superintendent were present when it occurred. Had it been anyone else, we would have called DPS, fired the individual and walked them from the building. The staff that were trapped in their office by this person may or may not be filing criminal charges. accused ADE of sending out a press release on Arts standards The incident was sparked when without the Board of Education knowing or approving. He was told this by his staff (which we still contend report to us) and that is completely inaccurate. It was either intentionally told to provoke his comments as a lie, or poor staff work. Having been attacked publicly, we responded by providing three documents. One shows clearly that last May 2014, the BOE held a meeting and discussed we should look at world language, PE, and Arts standards. The second shows notes from the BOE meeting in January 2015 stating they would open Arts funding at the February meeting. With only a few days notice, the BOE staff canceled the February meeting. We were told the Arts would be on the March meeting while we were out of town meeting with the Secretary of Education and the President. Apparently, they once again removed the item without telling us, even though we have agenda setting meetings three weeks in advance. As a process, we send out a standard release to let the public know that BOE will be opening public input. Therefore, we have documentation, we did everything nmitted her assault. exactly the way it always has been. After that, the Yellow Sheets reported it and luckily, there was no battery, that is no physical attack, but screaming, verbal abuse, trapping a person physically in their office and refusing to leave for an extended period. This type of behavior cannot long be contained. If the staff decide to press charges, we can't interfere. All of our meetings with BOE personnel on agenda items are openly hostile toward us and non-productive, despite our best efforts to defuse the tension. 1 I will continue to give you a heads up on issues like this in our efforts to keep an open dialogue and avoid the Governor having any surprises. Michael Bradley NOTICE: This e-mail (and any attachments) may contain PRIVILEGED OR CONFIDENTIAL Information and is intended only for the use of the specific individual(s) to whom it is addressed. It may contain information that is privileged and confidential understate and federal law, This information may be used or disclosed only in accordance with law, and you may be subject to penalties under law for improper use orfurther disclosure of the infomnation in this e-mail and its attachments. If you have received this e-mail in error, please Immediately notify the person named above by reply e-mail, and then delete the original e-mail. Thank you. 2 EXHIBIT 4 MEMBERS PRESENT: Mr. Ballantyne Superintendent Douglas Dr. Rottweiler Ms. Hamilton Mr. Deschene Mr. Jacks Mr. Schmidt Mr. Taylor Mr. Carter President Miller ARIZONA STATE BOARD OF EDUCATION SUMMARY OF BOARD ACTION Regular Board Meeting __________ April 27, 2015__________ MEMBERS ABSENT: Dr. Crow CALL TO ORDER, PLEDGE OF ALLEGIANCE, MOMENT OF SILENCE, AND ROLL CALL Meeting called to order at 9:04 am Pledge of Allegiance, Moment of Silence and Roll Call confirmed a quorum BUSINESS REPORTS Item lA - President's Report Recorded comments are available. (Part 1/00:04) 1. President Greg Miller gave an update and spoke to Board members on the following topics: Appointment of Jesus Rubalcava and reappointments of Dr. Beverly Hurley and Dr. Wade McLean to the WestEd Board of Directors • • • Board Member Resource Binder WestEd Appointments Appointment to A-F School Letter Grades Committee Recorded comments are available (Part 1 / 03:28) Superintendent Douglas gave an update and spoke to Board members on the following topics: Item IB - Superintendent's Report • • "We are Listening" Tour Counsel of Chief State School Officers (CCSSO) March meeting ESEA Waiver Item 1C - Board Member Report • None Item ID - Executive Director's Report Recorded comments are available. (Part 1 / 08:22) 1. Executive Director Christine Thompson gave an update and spoke to Board members regarding the following topics: Request for Proposals (RFP) for the K-6 technology based language development and literacy intervention pilot, pursuant to A.R.S. §15-217 _______ 1 • RFP for K-6 technology based language development and literacy intervention pilot Item 2. - CONSENT AGENDA Recorded comments are available. (Part 1 / 11:00) A.Receipt of the summary of Board actions for the March 23, 2015 meeting. Pursuant to A.R.S. § 38-431.01(0), beginning with the January 26, 2015 meeting of the Board, audio recordings of Board meetings are available for public inspection on the Board's website. MOTION Mr. Carter made a motion to approve the Consent Agenda with the exception of Item 2A and Item 2E. Vice President Ballantyne seconded the motion. Motion passed unanimously. B.Consideration to approve the following contract abstracts: 1.Arizona Integrated Basic Education and Skills Training 2.Adult Education Assistance Award FY2016 Item 2A was discussed. Recorded comments are available (Part 1 / 11:40) MOTION Member Schmidt made a motion to approve Item 2A Member Taylor seconded the motion. C.Consideration to approve additional monies for teacher compensation for Fiscal Year 2015-2016 to districts that have submitted Statements of Assurance, pursuant to A.R.S. § 15-952 and A.R.S. § 15-537 Motion passed with a majority vote (9-0-1) (Abstained: Superintendent Douglas) Item 2E was discussed. Recorded comments are available (Part 1 / 24:36) MOTION Member Ballantyne made a motion to approve Item 2E. Member Carter seconded the motion. □.Consideration to accept voluntary surrender of the teaching certificates held by the following: 1.Alfred Trejo, Jr. 2.Brooke N. Hesson E.Consideration to permanently revoke any and all teaching certificates held by David Rogers, pursuant to A.R.S. § 15-550 Motion passed unanimously. F.Consideration to appoint Pinal County Superintendent Jill Broussard to the Certification Advisory Committee C.Consideration to approve qualification score for the Spring 2015 administration of the Move On When Ready (MOWR)/Excellence for All World History Exam (E4A) related to Board Examinations Systems and the Grand Canyon Diploma, as described in the materials 2 H.Consideration to approve the Move on When Reading (MOWR) LEA literacy plans which have been reviewed for release of K-3 Reading Base Support funds, as described in the materials Consideration to approve expenditure of I. funds for the Arizona Education Learning and Accountability System (AELAS), pursuant to A.R.S. § 15-249, as described in the materials Item 3. CALL TO THE PUBLIC Recorded comments are available. (Part 1 / 28:58) This is the time for the public to comment. Members of the Board may not discuss items that are not specifically identified on the agenda. Therefore, pursuant to A.R.S. 38-431.01(H), action taken as a result of public comment will be limited to directing staff to study the matter, responding to any criticism or scheduling the matter for further consideration and decision at a later date. Item 4. GENERAL SESSION The following members of the public spoke during Call to the Public: 4A. Presentation and discussion regarding legislative affairs. The Board may take action to support, oppose or remain neutral on specific legislative proposals 4B. Presentation, discussion and consideration to adopt the proposed policy for the review of the Arizona Mathematics Standards and English Language Arts Standards Susie Cannata, Lobbyist for the State Board of Education presented this item to the Board. Joe Guesk, Why do we educate Becky Hill, Arizona Chamber of Commerce Recorded comments are available. (Part 1 / 35:38) No action required. Presentation Only. Recorded comments are available. (Part 1/43:47) Christine Thompson, SBE Executive Director presented and addressed questions from the Board. The following members of the public spoke during this item: Erin Hart, COO, Expect More Arizona MOTION Mr. Carter made a motion motion to adopt the proposed policy to for the review of the Arizona Mathematics Standards and English Language Arts Standards. Vice President Ballantyne seconded the motion. Motion passed with a majority vote (9-1) (Opposed: Superintendent Douglas) 3 4C. Presentation, discussion and consideration to open review process for Arts Standards Development Recorded comments are available. (Part 1/59:52) Sarah Gilette, ADE Deputy Associate Superintendent, K-12 Academic Standards, presented and addressed questions by the Board. MOTION Vice President Ballantyne made the motion motion to open the review process for the draft Arts Standards. Mr. Schmidt seconded the motion. Motion passed unanimously. Recorded comments are available. (Part 1 / 1:06:15) 4D. Presentation, discussion, and consideration regarding AzMERiT implementation, timeline for the approval of AzMERIT standard setting, and the proposed AzMERiT performance level names and policy level descriptors Irene Hunting, ADE Deputy Associate Superintendent of Assessment presented and addressed questions from the Board. The following members of the public spoke during Call to the Public on this item: Dr. Joe O'Rielly, Mesa Public Schools Janice Palmer, Arizona School Boards Association Jennifer Reynolds, Arizonans against Common Core Becky Hill, Arizona Chamber of Commerce Dr. Ildi Laczko-Kerr, Arizona Charter Schools Association ITEM TABLED Item 4D was tabled until the May meeting. Recorded comments are available. 2:10:20) 4E. Presentation, discussion and consideration to authorize the Executive Director to execute a lease for office space. Pursuant to A.R.S. § 38431.03(A)(7), the Board may vote to convene in executive session, which will not be open to the public for discussion or consultation with designated representatives of the Board in order to consider its position and instruct its representatives regarding negotiations for the lease of real property. (Part 1 / MOTION Vice President Ballantyne made a motion to authorize the Executive Director to execute a lease for office space, with approval of the Board Member Schmidt seconded the President, motion. Motion Passed with a majority vote (9-1) 4 President Miller requested a Roll Call vote for Item 4E. Member Carter: Aye Member Deschene: Aye Superintendent Douglas: Nay Member Hamilton: Aye Member Jacks: Aye Member Rottweiler: Aye Member Schmidt: Aye Member Taylor: Aye Vice President Ballantyne: Aye President Miller: Aye Recorded comments are available. (Part 1 / 02:16:00) 4F. Presentation, discussion and consideration to authorize the State Board of Education Executive Director to negotiate and execute Intergovernmental Services Agreements for administrative services as the Board becomes a separate state budget unit in Fiscal Year 2015­ 2016. MOTION Member Ballantyne made a motion motion to authorize the Executive Director to negotiate and execute Intergovernmental Services Agreements for administrative services. Member Rottweiler seconded the motion. Motion passed with a majority vote (9-1) (Opposed: Superintendent Douglas) Recorded comments are available. (Part 1 / 02:17:30) 4G. Presentation and discussion related to Indian Education and consideration to reaffirm the Board Policy Statement on Indian Education. Debra Norris, ADE Director of Indian Education presented and answered questions pertaining to this item. The following members of the public spoke during Call to the Public on this item: Jacob Moore, ASU Assistant Vice President, Tribal Relations, Office of University Affairs MOTION Vice President Ballentyne made a motion to direct Board staff to review and to seek input from tribal communities regarding the State Board Poiicy Statement on indian Education. Member Deschene seconded the motion. Motion passed with a majority vote (9-0-1) (Abstain: Superintendent Douglas) 5 4H. Presentation and discussion related to the Educator Retention and Recruitment Taskforce Report Recorded comments are available. 03:00:55) (Part 1 / MOTION No action required. Presentation only. Recorded comments are available. (Part 1 / 03:23:17) 41. Presentation, discussion and consideration to determine noncompliance with laws applicable to English language learners, pursuant to A.R.S. § 15-756.08 (J) for Tuba City Unified School District. Jordan Ellel, Assistant Attorney General presented and answered questions for this item. Dr. Harold Begay, Superintendent of Toltec School District spoke to the Board. MOTION Member Ballantyne made a motion to find, for the reasons stated in ADE’s letter of noncompliance dated December 3,2014, that Tuba Unified School District is noncompliant with the laws pertaining to ELLs, thereby barring the District from receiving any monies from the Arizona Structured English Immersion Fund established by A.R.S. § 15-756.04for ELLs and from reducing the monies spent on its ELL programs despite the loss of monies caused by its noncompliance. Member Carter seconded the motion. Motion passed unanimously. Recorded comments are available. (Part 1 / 03:33:25) 4J. Presentation, discussion and consideration to close rulemaking procedures and adopt proposed amendments to rules R7-2-615 regarding Bilingual Endorsements, English as a Second Language (ESL) Endorsements, Structured English Immersion (SEI) Endorsements, and R7-2615 regarding Early Childhood Endorsements, and R7-2-616 and R7-2-621 regarding reciprocal certificates. Christine Thompson, SBE Executive Director addressed the Board, noting that a new proposal regarding R7-2-615(K) and (L), English as a Second Language (ESL) Endorsements and Structured English Immersion (SEI) Endorsements would be presented at the May SBE meeting. The following members of the public spoke during Call to the Public this item: Jennifer Wells, Educational Training Specialist LLC Anne Swigard, Educational Training Specialists LLC 6 MOTION Vice President Ballantyne made a motion to close the rule making record and effective May 4,2015, adopt proposed rules R7-2-615(J) and (N) regarding Bilingual Endorsements and Early Childhood Endorsements, and R7-2-616 and R7-2621 regarding reciprocal certificates. Member Carter seconded the motion. Motion passed with a majority vote (9-0-1) (Member Rottweiler was not present for the vote) Recorded comments are available. (Part 1 / 03:45:20) 4K. Presentation, discussion and consideration to initiate rulemaking procedures for proposed amendments to rule R7-2-613 regarding PreK-12 Physical Education Certificate. MOTION Member Ballantyne made a motion to initiate rulemaking procedures for proposed amendments to rule R7-2-613 regarding the PreK-12 Physical Education Certificate. Member Carter seconded the motion. Motion passed unanimously. Recorded comments to move into Executive Session and motion are available (Part 1 / 03:53:50) 4L. Presentation and discussion regarding the Four-Hour English Language Development Complaint (U.S. Department of Education Office of Civil Rights (OCR) Case Number 08-10-4046 and U.S. Department of Justice (DOJ) Case Number 169-8-81). Pursuant to A.R.S. § 38431.03(A)(3) and (4), the Board may vote to convene in executive session, which will not be open to the public, for discussion or consultation for legal advice with the Board's attorneys and/or for discussion or consultation with the Board's attorneys in order to consider its position and instruct its attorneys in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation. MOTION Member Vice President Ballantyne made a motion to convene into Executive Session. Member Taylor seconded the motion. Motion passed unanimously. Board convened into Executive Session at 1:04pm. Meeting reconvened into Regular Meeting at 1:38pm. MOTION Member Rottweiler made a motion to allow the Board to direct the attorneys to proceed as instructed in Executive Session. Member Schmidt seconded the motion. 7 Motion passed through majority vote (9-0-1) (Abstain: Superintendent Douglas) Recorded comments are available. (Part 1 / 03:52:08) 5. Board comments and future meeting dates. The executive director, presiding officer or a member of the Board may present a brief summary of current events pursuant to A.R.S. § 38-431.02(K), and may discuss future meeting dates and direct staff to place matters on a future agenda. The Board will not discuss or take action on any current event summary. Executive Director Christine Thompson stated accountability transition and school accounting responsibility will be heard at the May meeting. Superintendent Douglas requested the accounting responsibility item be placed on the General Session agenda. Recorded comments are available. (Part 2 / 00:03) Item 5. ADJOURN MOTION Member Ballantyne made a motion to adjourn Member Jacks seconded the the meeting, motion. Motion passed unanimously. Meeting adjourned at 1:40pm 8 EXHIBIT 5 Arizona State Board of Education 1535 W. Jefferson St., Bin 11 Phoenix, Arizona 85007 (602) 542-5057 FAX (602) 542-3046 www.azed.aov/state-board-education stateboardinbox@azed.qov Mays, 2015 Michael Bradley Chief of Staff Arizona Department of Education 1535 W. Jefferson St. Phoenix, Arizona 85007 Dear Mr. Bradley, This letter is to notify you that effective May 11,2015, the offices of the State Board of Education (Board) will relocate to 1700 W. Washington Street, 85007. Attached is a list of information technology requests to effectuate the transition, including redirection of emails and website traffic. In conjunction with the move, the Board will use administrative services provided by the Department of Administration in the following areas: information technology (servers, website, and phone), human resources, and business services (budgeting and procurement). The Board has previously been appropriated funds specifically dedicated for support of the Board’s functions in a special line item under the budget unit identified as “State Board of Education and Superintendent of Public Instruction." These funds have been used specifically for the operational expenses of the Board, including purchase of office supplies, furnishings, equipment and services. Board staff will not move any items with ADE property tags (computers and furnishings), even though they have been purchased with funds appropriated for the Board’s use. The move will include paper files, office supplies and chairs purchased with Board funds, and the ADOA-AZNET supplied telephones. While the offices of the Board staff will be relocating, the Board will maintain the meeting rooms located in Room 122 of the Department of Education building at 1535 W. Jefferson rented by the Board from the Department of Administration. The cost of construction and outfitting of these rooms were paid with funds appropriated for Board use. Attached is a list of the furnishings and equipment that will be maintained by the Board in these facilities including procurement references. I am happy to discuss any further issues that may arise. Sija^erely, ristine M. Thompson c: Members of State Board of Education Board Members: President Greg Miller Vice President Reginald Ballantyne III Amy Hamilton Christopher Clark Deschene Dr. Michael Crow Tim Carter Dr. James Rottweiler Jared Taylor Roger Jacks Charles Schmidt Superintendent of Public Instruction Diane Douglas Executive Director: Christine M. Thompson Email Effective May 11,2015, email services for the Board will be provided by DOA. For each of the email addresses listed below, please: 1) Provide to the Board a .PST file in order to transfer previous outlook materials to new accounts; and 2) Redirect all incoming email to the corresponding email account listed below, and maintain current email addresses until December 31, 2015;. AZED.GOV email address to FORWARD FROM stateboardinbox(5)azed.gov investigation(5)azed.gov Charles.Easaw(5)azed.gov Karen.Grav(S)azed.gov Donna.Logan(5)azed.gov Randv.McLean(S)azed.gov Hector.Rivera@azed.gov Shavlin.Shabi@azed.gov Christine.Thompson@azed.gov Sabrina.Vazauez@azed.gov Emmitt.Williams@azed.gov Garnett.Winders@azed.gov Sherrv.Zeeb@azed.gov AZSBE.AZ.GOV email address to FORWARD TO inboxPazsbe.az.gov investigation(S)azsbe.az.gov Charles. EasawtSazsbe.az.gov Karen.GravOazsbe.az.gov Donna.Logan(5)azsbe.az.gov Randv.McLeantSazsbe.az.gov Hector.Rivera(S)azsbe.az.gov Shavlin.Shabi(S)azsbe.az.gov Christine.Thompson@azsbe.az.gov Sabrina.Vazauez@azsbe.az.gov Emmitt.Williams@azsbe.az.gov Garnett.Winders@azsbe.az.gov Sherrv.Zeeb@azsbe.az.gov Website Beginning May 11,2015, the Board website will be hosted by DOA, rather than ADE. Please redirect all website traffic from http://www.azed.aov/state-board-education/ and its subpages to http://www.azsbe.az.qov. Electronic Files Please provide to the Board all electronic materials contained in the following folders on the Department’s servers on l:\ drive and staff H:\ drives, which have been used by the Board through May 8, 2015, to store all electronic files: 1) l:\ST_BRD 2) l:\PROF_DEV\lnvestigations 3) H:\drivefilesforeachemployee Certification Application The State Board Investigative Unit uses the Certification Application both as an investigative tool and to record investigative or disciplinary action that has been taken against certified educators. We request that ADE work with State Board staff to ensure the Investigative Unit continues to have access to this program. Inventory of Furnishing and Equipment Purchased by the State Board of Education for use by the Board 1535 W. Washington St., Room 122, Phoenix, Arizona 85007 Description Procurement Reference Board Room Chairs ADED15-00213194 ADED15-00213194 ADED14-00208048 ADED14-00207980 ADED14-00209313 AV equipment ADED13-00123355 ADSP012-032709:111 ADSPO12-032709:121 ADSPO12-032709:128 EPS06012S-2-A9:17 EPS060125-2-A9:29 EPS060125-2-A9:31 Dais and podium Acquired as part of the build out of the facility in late FY14 funds transferred from SBE to DOA Board Room furniture ADED15-00213171 ADED15-00226359 EXHIBIT 6 From: Sent: To: Cc: Subject: Bradley, Michael W. Wednesday, May 13, 2015 11:40 PM Christine Thompson; Johnson, Cecilia Charles Easaw; Douglas, Diane; Greg Miller (gmiller@challengecharterschool.net); Zara, Shari; Stewart, Sally; Berg, Ashley RE: certification duties Christine, Should I put you and the others down for annual leave, or for absent without permission? What is frustrating is staff abandoning their assigned duties and duty stations without warning on a weekend. Usually, if offices are cleaned out on a weekend, one would expect burglars. It is fascinating to me that you feel frustrated after having committed such a disruptive act. Our position on the law is unchanged. Board of Education staff are assigned as staff of the Arizona Department of Education by statute. You are expected to maintain proper hours at your assigned duty location which is 1535 W. Jefferson. Any inconvenience caused by your insubordinate behavior does not become an emergency for us to solve who have followed the law and communicated openly. Michael Bradley Chief of Staff Arizona Department of Education From: Christine Thompson [mailto:Christine.Thompson@azsbe.az.gov] Sent: Wednesday, May 13, 2015 6:36 PM To: Johnson, Cecilia; Bradley, Michael W. Cc: Charles Easaw Subject: RE: certification duties Cecilia and MichaelI'm responding to Cecilia's email of May 12 to Charles Easaw, her May 13 letters to all investigators, and to Michael's May 13 verbal directive to Investigator Hector Rivera regarding the office location of the Board's Investigate Unit (lU). I encourage both of you to talk to me directly about these issues so we maintain an effective working relationship between the lU and the ADE Certification Unit, and to ensure that the investigators have the necessary access to the certification database and related certification materials in order to support educators and schools. As noted in my May 8th letter to Michael about the Board's new office location, the work of the lU requires access to the certification database. I was notified late on Monday that all the ADE accounts for Board employees were terminated. The lU unit will need virtual access (VPN) set up so that they can use ADE network to get the information they need. Your email and letters Indicated that you had already set up computers on ADE's third floor with access to the necessary databases for the lU. We are simply asking that the lU have virtual access by setting up the VPN as soon as possible to avoid delays in this work. If I can follow up with someone directly to expedite this process, please let me know who to talk to. We would also request that the lU continue to have access to scanned certification materials, as was the case before the relocation. This access has been unavailable since our move. 1 I have asked Charles to prepare proposed protocols to ensure that the transfer of paper files between our offices is done in a manner to protect the files and ensure confidentiality - similar to the procedures used with the Tucson Certification Unit. I hope to provide those to you tomorrow and would be happy to discuss them with you. Rather than provide access to the database and address other logistical issues concerning the move, Cecilia's email to Charles and her letters to the investigators direct the lU to go back to the ADE office. This directive contradicts the Board's approval of the relocation of the Board staff, which includes the lU. It also disregards my role as their supervisor. I was not even copied on the email to Charles or the letters to other Board staff. We have always given prompt service to the Certification Unit and to applicants needing assistance over the phone. Because we are only two blocks away, investigators will also be able to come to ADE to provide face-to-face service as necessary. I will have Charles prepare a proposed schedule for investigators to be available at ADE for onsite questions. But the lU will not relocate to ADE. I encourage ADE staff to work with us to assure that all work can be done from our new location. We hope to resolve issues such as these promptly to avoid further delays. Candidly, this is frustrating. We are trying to provide Board employees a supportive working environment from this location, and Cecilia's email and letters merely create roadblocks to our work. Again, the critical issue is getting access to the certification database. Please advise when this is going to be provided, and how I can assist in expediting the access. I remain available to discuss any of these issues with you. CMT Christine M. Thompson Executive Director State Board of Education **NEW ADDRESS, EMAIL AND WEBSITE 5/11/15 1700 W. Washington St., Suite 300 Phoenix, AZ 85007 602.542.5057 Website: azsbe.az.gov Christine.ThompsonPazsbe.az.gov From: Johnson, Cecilia [mailto:Cecilia.Johnson(5)azed.gov1 Sent: Tuesday, May 12, 2015 3:04 PM To: Charles Easaw Subject: certification duties Charles, I am informing you that as ADE employees, the Investigative Unit staff is required to continue to provide the exact same service as has been provided until the time you vacated your offices (Saturday, May 9, 2015). Investigative Unit staff will continue to: • Provide same day service to all applicants as was provided prior to your departure May 9, 2015. • Be on site at 1535 West Jefferson Street to be available for face-to-face conversations with certification staff and applicants. • Be on site to review all files as they are not to be removed from this building. • Use the third floor offices, which will be set up with the resources needed to complete your required duties. 2 Beginning, Wednesday, May 13, 2015, Investigative Unit staff will be on site in your third floor offices during regular business hours to fulfill your required duties. We will have IT set up access to the certification directories and files on the computer(s) you will be using here in your Jefferson offices. Your attention to these details will ensure that our educators are properly reviewed for employment in our schools. Sincerely, Cecilia Dr. Cecilia E. Johnson Associate Superintendent Highly Effective Teachers and Leaders Arizona Department of Education Phone: (602) 364-1957 cecilia.iohnsonPazed.gov Arizona $ Department of Education NOTICE: This e-mail (and any attachments) may contain PRIVILEGED OR CONFIDENTIAL information and is intended only for the use of the specific individual(s) to whom it is addressed. It may contain information that is privileged and confidential under state and federal law. This information may be used or disclosed only in accordance with law, and you may be subject to penalties under law for improper use or further disclosure of the information in this e-mail and its attachments. If you have received this e-mail in error, please immediately notify the person named above by reply e­ mail, and then delete the original e-mail. Thank you. 3 From: Sent: To: Cc: Subject: Christine Thompson Wednesday, May 13, 2015 6:36 PM CeciliaJohnson@azed.gov; michael.bradley@azed.gov Charles Easaw RE: certification duties Cecilia and MichaelI'm responding to Cecilia's email of May 12 to Charles Easa\w, her May 13 letters to all investigators, and to Michael's May 13 verbal directive to Investigator Hector Rivera regarding the office location of the Board's Investigate Unit (lU). I encourage both of you to talk to me directly about these issues so we maintain an effective working relationship between the lU and the ADE Certification Unit, and to ensure that the investigators have the necessary access to the certification database and related certification materials in order to support educators and schools. As noted in my May 8th letter to Michael about the Board's new office location, the work of the lU requires access to the certification database. I was notified late on Monday that all the ADE accounts for Board employees were terminated. The lU unit will need virtual access (VPN) set up so that they can use ADE network to get the information they need. Your email and letters indicated that you had already set up computers on ADE's third floor with access to the necessary databases for the lU. We are simply asking that the lU have virtual access by setting up the VPN as soon as possible to avoid delays in this work. If I can follow up with someone directly to expedite this process, please let me know who to talk to. We would also request that the lU continue to have access to scanned certification materials, as was the case before the relocation. This access has been unavailable since our move. I have asked Charles to prepare proposed protocols to ensure that the transfer of paper files between our offices is done in a manner to protect the files and ensure confidentiality - similar to the procedures used with the Tucson Certification Unit. I hope to provide those to you tomorrow and would be happy to discuss them with you. Rather than provide access to the database and address other logistical issues concerning the move, Cecilia's email to Charles and her letters to the investigators direct the lU to go back to the ADE office. This directive contradicts the Board's approval of the relocation of the Board staff, which includes the lU. It also disregards my role as their supervisor. I was not even copied on the email to Charles or the letters to other Board staff. We have always given prompt service to the Certification Unit and to applicants needing assistance over the phone. Because we are only two blocks away, investigators will also be able to come to ADE to provide face-to-face service as necessary. I will have Charles prepare a proposed schedule for investigators to be available at ADE for onsite questions. But the lU will not relocate to ADE. I encourage ADE staff to work with us to assure that all work can be done from our new location. We hope to resolve issues such as these promptly to avoid further delays. Candidly, this is frustrating. We are trying to provide Board employees a supportive working environment from this location, and Cecilia's email and letters merely create roadblocks to our work. Again, the critical issue is getting access to the certification database. Please advise when this is going to be provided, and how I can assist in expediting the access. I remain available to discuss any of these issues with you. CMT Christine M. Thompson 1 Executive Director State Board of Education NEW ADDRESS, EMAiL AND WEBSITE 5/11/15 1700 W. Washington St., Suite 300 Phoenix, AZ 85007 602.542.5057 Website: azsbe.az.gov Christine.Thonnpson(5)azsbe.az.gov From: Johnson, Cecilia rmailto:Cecilia.Johnson(5)azed.gov1 Sent: Tuesday, May 12, 2015 3:04 PM To: Charles Easaw Subject: certification duties Charles, I am informing you that as ADE employees, the Investigative Unit staff is required to continue to provide the exact same service as has been provided until the time you vacated your offices (Saturday, May 9, 2015). Investigative Unit staff will continue to: • Provide same day service to all applicants as was provided prior to your departure May 9, 2015. • Be on site at 1535 West Jefferson Street to be available for face-to-face conversations with certification staff and • • applicants. Be on site to review all files as they are not to be removed from this building. Use the third floor offices, which will be set up with the resources needed to complete your required duties. Beginning, Wednesday, May 13, 2015, Investigative Unit staff will be on site in your third floor offices during regular business hours to fulfill your required duties. We will have IT set up access to the certification directories and files on the computer(s) you will be using here in your Jefferson offices. Your attention to these details will ensure that our educators are properly reviewed for employment in our schools. Sincerely, Cecilia Dr. Cecilia E. Johnson Associate Superintendent Highly Effective Teachers and Leaders Arizona Department of Education Phone: (602) 364-1957 cecilia.iohnson(5)azed.gov .t- Arizona Department of Education NOTICE: This e-mail (and any attachments) may contain PRIVILEGED OR CONFIDENTIAL information and is intended only for the use of the specific individual(s) to whom it is addressed. It may contain information that is privileged and confidential under state and federal law. This information may be used or disclosed only in accordance with law, and 2 you may be subject to penalties under law for improper use or further disclosure of the information in this e-mail and its attachments. If you have received this e-mail in error, please immediately notify the person named above by reply e­ mail, and then delete the original e-mail. Thank you. 3 - fil[-> From: Sent: To: Cc: Subject: Attachments: Christine Thompson Friday, May 15, 2015 10:58 AM Cecilia.Johnson@azed.gov; michael.bradley@azed.gov Charles Easaw; janet.pentak@azed.gov RE: certification duties lU-CU Protocol.pdf Cecilia, Jan and Michael In response to Cecilia's email to Charles last night, Charles will be at the ADE Certification Desk by 11:30 AM today to address the issues Jan identified. I also wanted to follow up on my May 13 email to Cecilia and Michael regarding the lU's need to access to the ADE databases while they are in their offices in the Executive Tower. I've attached a protocol that outlines the processes by which the lU and CU work together. The only change from the long-established process is that we are a few blocks away. We will provide service by phone and, when necessary, in-person, but we do need ADE to cooperate and provide on-line access here. You indicated computers are set up on the third floor in ADE's building so there should be no problem providing the virtual access that Is necessary. If there's anything I can do to expedite the virtual access, please let me know. And while we are in this transition, please copy me on emails to the lU staff so we can address any issues without delay. CMT Christine M. Thompson Executive Director State Board of Education **NEW ADDRESS, EMAIL AND WEBSITE 5/11/15 1700 W. Washington St., Suite 300 Phoenix, AZ 85007 602.542.5057 Website: azsbe.az.gov Christine.Thompson@azsbe.az.gov From: Johnson, Cecilia rmailto:Cecilia.Johnson@azed.gov] Sent: Thursday, May 14, 2015 9:38 PM To: Charles Easaw Cc: Pentek, Janet Subject: follow-up request Charles, 1 I met with Jan Pentek this afternoon to review the urgent applications that would normally be handled with a phone call to one of the investigators resulting in a five minute phone call while you verified the educator's record. These teachers are currently teaching and will no longer be allowed in the classroom at this crucial time of the year. It is vital that these 30 applications get reviewed first thing in the morning, so we can notify the LEAs and teachers and not disrupt the education of students. We will have your work station ready to go in the morning. Please be here by 9:00 a.m. We anticipate these critical applications to take a couple of hours for one person or obviously less time if you want to bring additional investigators. Once you have completed these critical reviews, you can choose to leave or stay and begin working on the over 100 applications that need reviewed in the next week. I appreciate your attention to this urgent matter. Cecilia Dr. Cecilia E. Johnson Associate Superintendent Highly Effective Teachers and Leaders Arizona Department of Education Phone: (602) 364-1957 cecilia.iohnson(Sazed.gov Arizona Department of Education From: Christine Thompson Sent: Wednesday, May 13, 2015 6:36 PM To: 'Cecilia.Johnson@azed.gov'; 'michael.bradley@azed.gov' Cc: Charles Easaw Subject: RE: certification duties Cecilia and MichaelI'm responding to Cecilia's email of May 12 to Charles Easaw, her May 13 letters to all investigators, and to Michael's May 13 verbal directive to Investigator Hector Rivera regarding the office location of the Board's Investigate Unit (lU). I encourage both of you to talk to me directly about these issues so we maintain an effective working relationship between the lU and the ADE Certification Unit, and to ensure that the investigators have the necessary access to the certification database and related certification materials in order to support educators and schools. As noted in my May 8th letter to Michael about the Board's new office location, the work of the lU requires access to the certification database. I was notified late on Monday that all the ADE accounts for Board employees were terminated. The lU unit will need virtual access (VPN) set up so that they can use ADE network to get the information they need. Your email and letters indicated that you had already set up computers on ADE's third floor with access to the necessary databases for the lU. We are simply asking that the lU have virtual access by setting up the VPN as soon as possible to avoid delays in this work. If I can follow up with someone directly to expedite this process, please let me know who to talk to. We would also request that the lU continue to have access to scanned certification materials, as was the case before the relocation. This access has been unavailable since our move. I have asked Charles to prepare proposed protocols to ensure that the transfer of paper files between our offices is done in a manner to protect the files and ensure confidentiality - similar to the procedures used with the Tucson Certification Unit. I hope to provide those to you tomorrow and would be happy to discuss them with you. 2 Rather than provide access to the database and address other logistical issues concerning the move, Cecilia's email to Charles and her letters to the Investigators direct the ID to go back to the ADE office. This directive contradicts the Board's approval of the relocation of the Board staff, which includes the ID. It also disregards my roie as their supervisor. I was not even copied on the email to Charles or the letters to other Board staff. We have always given prompt service to the Certification Unit and to applicants needing assistance over the phone. Because we are oniy two blocks away, investigators wiil also be able to come to ADE to provide face-to-face service as necessary. I will have Charles prepare a proposed schedule for investigators to be available at ADE for onsite questions. But the lU will not relocate to ADE. I encourage ADE staff to work with us to assure that all work can be done from our new location. We hope to resolve issues such as these promptly to avoid further delays. Candidly, this is frustrating. We are trying to provide Board employees a supportive working environment from this location, and Cecilia's email and letters merely create roadblocks to our work. Again, the critical issue is getting access to the certification database. Please advise when this is going to be provided, and how I can assist in expediting the access. I remain availabie to discuss any of these issues with you. CMT Christine M. Thompson Executive Director State Board of Education NEW ADDRESS, EMAIL AND WEBSITE 5/11/15 1700 W. Washington St., Suite 300 Phoenix, AZ 85007 602.542.5057 Website: azsbe.az.gov Christine.Thompson(5)azsbe.az.gov From: Johnson, Cecilia [mailto:Cecilia.Johnson@azed.gov] Sent: Tuesday, May 12, 2015 3:04 PM To: Charles Easaw Subject: certification duties Charies, I am informing you that as ADE empioyees, the Investigative Unit staff is required to continue to provide the exact same service as has been provided untii the time you vacated your offices (Saturday, May 9, 2015). Investigative Unit staff will continue to: • Provide same day service to all applicants as was provided prior to your departure May 9, 2015. • Be on site at 1535 West Jefferson Street to be available for face-to-face conversations with certification staff and applicants. • Be on site to review all files as they are not to be removed from this building. • Use the third floor offices, which will be set up with the resources needed to complete your required duties. Beginning, Wednesday, May 13, 2015, Investigative Unit staff will be on site in your third floor offices during regular business hours to fulfill your required duties. We will have IT set up access to the certification directories and files on the computer(s) you will be using here in your Jefferson offices. 3 Your attention to these details will ensure that our educators are properly reviewed for employment in our schools. Sincerely, Cecilia Dr. Cecilia E. Johnson Associate Superintendent Highly Effective Teachers and Leaders Arizona Department of Education Phone: (602) 364-1957 cecilia.iohnson@azed.gov Arizona Department of Education NOTICE: This e-mail (and any attachments) may contain PRIVILEGED OR CONFIDENTIAL information and is intended only for the use of the specific individual(s) to whom it is addressed. It may contain information that is privileged and confidential under state and federal law. This information may be used or disclosed only in accordance with law, and you may be subject to penalties under law for improper use or further disclosure of the information in this e-mail and its attachments. If you have received this e-mail in error, please immediately notify the person named above by reply e­ mail, and then delete the original e-mail. Thank you. 4 Protocol for operation between State Board of Education Investigation Unit and Arizona Department of Education Certification Unit Pursuant to the State Board of Education Investigative Unit Policy Handbook (last reviewed by the Board in Aug 2012), “[a]li applications for certification shall be received by the Certification Unit. If an applicant answers affirmatively to any of the questions on the “Criminal / Professional History” portion of the application, the Certification Unit shall forward the application to the Investigative Unit. The Chief Investigator shall determine procedures for assigning all applications to Investigators.” Investigators have access to the certification database and scanned past applications Applications - State Board of Education Investigation Unit (lU) will have daily virtual access to certification database (database) and the scanned files of past applicants. The ADE certification unit (CU) will forward the required applications to the lU by 1) scanning and emailing the applications to inbox@azsbe.az.gov. 2) faxing the applications to (602)542-5388, or 3) having the applications picked up by a member of the lU at pre-arranged daily pick-up times to be discussed. Investigators will maintain the certification files as long as needed to complete the application review. Once an Investigator determines that an application for certification should be issued or the Board has taken appropriate action, the Investigator shall note the action in the database and return the application to the Certification Unit as soon as reasonably practicable. Discipline- As outlined in the Investigative Unit Policy Handbook, the lU will enter any “flags for review” and disciplinary action taken against certificates Investigator access to the certification database and scanned past applications is unavailable Applications - If access to the database or share files is unavailable to lU members, but accessible to the CU, the CU will compile the following documents to be forwarded to the certification unit: the application, a copy of the “smiley face” screen in the database, a copy of the “investigative notes,” and any pasted scanned applications for the applicant. The investigative screens are available to the managers of the Certification Unit (Kasey Ohms and Jan Pentak). The CU will forward the required materials to the lU by 1) scanning and emailing the applications to inbox@azsbe.az.aov. 2) faxing the applications to (602)542-5388, or 3) having the applications picked up by a member of the lU at pre-arranged daily pick-up times to be discussed. The lU staff will document all necessary information on a log for each application. Investigators will maintain the certification files as long as needed to complete the application review. Once an Investigator determines that an application for certification should be issued or the Board has taken appropriate action, the Investigator shall return the application to the Certification Unit as soon as reasonably practicable, with a notation of the appropriate action to be entered into the certification database. Once access is reinstated, the lU staff will enter the investigative note gathered during while the database was unavailable. Discipline-The lU will send a daily email to the managers of the Certification Unit (Kasey Ohms and Jan Pentek) listing all certified educators who should be “flags for review” by investigations and any disciplinary action taken against certificates. Interaction with Applicants The lU staff is be available on the phone during the operational hours of the certification window (8;30am to 4:30pm). The CU will provide a phone and location for applicants to speak to lU staff when necessary. A member of CU staff will contact lU and transfer call to the applicant once an investigator is on the line. If an applicant needs to speak with the lU staff in person, the CU staff will contact the lU staff. If available, an investigator will be given an appropriate amount of time to travel between offices. This option should only be used with absolutely necessary. From: Sent: To: Cc: Subject: Christine Thompson Tuesday, May 19, 2015 2:44 PM Cecilia.Johnson@azed.gov; michael.bradley@azed.gov Charles Easaw; janet.pentek@azed.gov; Sabrina Vazquez RE: certification duties Michael, Cecilia and Jan I understand the Superintendent is not going to comply with the Board's motion to give complete and unrestricted access to the files, directories and databases necessary for the Investigative Unit (lU) to do their jobs at the Executive Tower. Given that there is pressing work to be done, while the lawyers and courts work out the consequences of the Superintendent's non-compliance, we need to work out an interim solution that allows the lU staff to complete necessary work. Charles Easaw was at ADE on Friday and Monday to deal with recent applications requiring review. Charles is out the rest of this week, and I would like to send over two investigators for a few hours on Wednesday and Friday to review pending applications. Please let me know when would be the best time to send them over to ensure that they have access to the necessary physical and electronic files. Additionally, the lU should have access to any new applications requiring further investigation - which ultimately may require PPACand Board review, and I have not yet heard back from you regarding the proposed protocols for the secure delivery of files between our offices. I am available to discuss these and other long and short-term solutions regarding the lU's access. CMT Christine M. Thompson Executive Director State Board of Education NEW ADDRESS, EMAIL AND WEBSITE 5/11/15 1700 W. Washington St., Suite 300 Phoenix, AZ 85007 602.542.5057 Website: azsbe.az.eov Christine.Thompson@azsbe.az.gov From: Christine Thompson Sent: Friday, May 15, 2015 10:57 AM To: 'Cecilia.Johnson@azed.gov'; 'michael.bradley@azed.gov' Cc: Charles Easaw; 'janet.pentak@azed.gov' Subject: RE: certification duties Cecilia, Jan and Michael In response to Cecilia's email to Charles last night, Charles will be at the ADE Certification Desk by 11:30 AM today to address the issues Jan identified. 1 I also wanted to follow up on my May 13 email to Cecilia and Michael regarding the Ill's need to access to the ADE databases while they are in their offices in the Executive Tower. I've attached a protocol that outlines the processes by which the lU and CD work together. The only change from the long-established process is that we are a few blocks away. We will provide service by phone and, when necessary, in-person, but we do need ADE to cooperate and provide on-line access here. You indicated computers are set up on the third floor in ADE's building so there should be no problem providing the virtual access that is necessary. If there's anything I can do to expedite the virtual access, please let me know. And while we are in this transition, please copy me on emails to the ID staff so we can address any issues without delay. CMT Christine M. Thompson Executive Director State Board of Education NEW ADDRESS, EMAIL AND WEBSITE 5/11/15 1700 W. Washington St., Suite 300 Phoenix, AZ 85007 602.542.5057 Website: azsbe.az.gov Christine.ThompsonPazsbe.az.gov From: Johnson, Cecilia rmailto:Cecilia.Johnson(S)azed.gov1 Sent: Thursday, May 14, 2015 9:38 PM To: Charles Easaw Cc: Pentek, Janet Subject: follow-up request Charles, I met with Jan Pentek this afternoon to review the urgent applications that would normally be handled with a phone call to one of the investigators resulting in a five minute phone call while you verified the educator's record. These teachers are currently teaching and will no longer be allowed in the classroom at this crucial time of the year. It is vital that these 30 applications get reviewed first thing in the morning, so we can notify the LEAs and teachers and not disrupt the education of students. We will have your work station ready to go in the morning. Please be here by 9:00 a.m. We anticipate these critical applications to take a couple of hours for one person or obviously less time if you want to bring additional investigators. Once you have completed these critical reviews, you can choose to leave or stay and begin working on the over 100 applications that need reviewed in the next week. I appreciate your attention to this urgent matter. Cecilia Dr. Cecilia E. Johnson Associate Superintendent 2 Highly Effective Teachers and Leaders Arizona Department of Education Phone: (602) 364-1957 cecilia.iohnson(5)azed.gov Arizona S Department of Education From: Christine Thompson Sent: Wednesday, May 13, 2015 6:36 PM To: 'Cecilia.Johnson@azed.gov'; 'michael.bradley@azed.gov' Cc: Charles Easaw Subject: RE: certification duties Cecilia and MichaelI'm responding to Cecilia's email of May 12 to Charles Easaw, her May 13 letters to all investigators, and to Michael's May 13 verbal directive to Investigator Hector Rivera regarding the office location of the Board's Investigate Unit (lU). I encourage both of you to talk to me directly about these issues so we maintain an effective working relationship between the lU and the ADE Certification Unit, and to ensure that the investigators have the necessary access to the certification database and related certification materials in order to support educators and schools. As noted in my May 8th letter to Michael about the Board's new office location, the work of the lU requires access to the certification database. I was notified late on Monday that all the ADE accounts for Board employees were terminated. The lU unit will need virtual access (VPN) set up so that they can use ADE network to get the information they need. Your email and letters indicated that you had already set up computers on ADE's third floor with access to the necessary databases for the lU. We are simply asking that the lU have virtual access by setting up the VPN as soon as possible to avoid delays in this work. If I can follow up with someone directly to expedite this process, please let me know who to talk to. We would also request that the lU continue to have access to scanned certification materials, as was the case before the relocation. This access has been unavailable since our move. I have asked Charles to prepare proposed protocols to ensure that the transfer of paper files between our offices is done in a manner to protect the files and ensure confidentiality - similar to the procedures used with the Tucson Certification Unit. I hope to provide those to you tomorrow and would be happy to discuss them with you. Rather than provide access to the database and address other logistical issues concerning the move, Cecilia's email to Charles and her letters to the investigators direct the lU to go back to the ADE office. This directive contradicts the Board's approval of the relocation of the Board staff, which includes the lU. It also disregards my role as their supervisor. 1 was not even copied on the email to Charles or the letters to other Board staff. We have always given prompt service to the Certification Unit and to applicants needing assistance over the phone. Because we are only two blocks away, investigators will also be able to come to ADE to provide face-to-face service as necessary. I will have Charles prepare a proposed schedule for investigators to be available at ADE for onsite questions. But the lU will not relocate to ADE. I encourage ADE staff to work with us to assure that all work can be done from our new location. We hope to resolve issues such as these promptly to avoid further delays. Candidly, this is frustrating. We are trying to provide Board employees a supportive working environment from this location, and Cecilia's email and letters merely create roadblocks to our work. Again, the critical issue is getting access to 3 the certification database. Please advise when this is going to be provided, and how 1 can assist in expediting the access. I remain available to discuss any of these issues with you. CMT Christine M. Thompson Executive Director State Board of Education NEW ADDRESS, EMAIL AND WEBSITE 5/11/15 1700 W. Washington St., Suite 300 Phoenix, AZ 85007 602.542.5057 Website: azsbe.az.gov Christine.Thompson(S)azsbe.az.gov From: Johnson, Cecilia rmailto:Cecilia.Johnson(Sazed.gov] Sent: Tuesday, May 12, 2015 3:04 PM To: Charles Easaw Subject: certification duties Charles, I am informing you that as ADE employees, the Investigative Unit staff is required to continue to provide the exact same service as has been provided until the time you vacated your offices (Saturday, May 9, 2015). Investigative Unit staff will continue to: • Provide same day service to all applicants as was provided prior to your departure May 9, 2015. • Be on site at 1535 West Jefferson Street to be available for face-to-face conversations with certification staff and • • applicants. Be on site to review all files as they are not to be removed from this building. Use the third floor offices, which will be set up with the resources needed to complete your required duties. Beginning, Wednesday, May 13, 2015, Investigative Unit staff will be on site in your third floor offices during regular business hours to fulfill your required duties. We will have IT set up access to the certification directories and files on the computer(s) you will be using here in your Jefferson offices. Your attention to these details will ensure that our educators are properly reviewed for employment in our schools. Sincerely, Cecilia Dr. Cecilia E. Johnson Associate Superintendent Highly Effective Teachers and Leaders Arizona Department of Education Phone: (602) 364-1957 cecilia.iohnson@azed.gov i- Arizona Department of Education 4 NOTICE: This e-mail (and any attachments) may contain PRIVILEGED OR CONFIDENTIAL information and is intended only for the use of the specific individual(s) to whom it is addressed. It may contain information that is privileged and confidential under state and federal law. This information may be used or disclosed only in accordance with law, and you may be subject to penalties under law for improper use or further disclosure of the information in this e-mail and its attachments. If you have received this e-mail in error, please immediately notify the person named above by reply e­ mail, and then delete the original e-mail. Thank you. 5 From: Sent: To: Cc: Subject: Attachments: Johnson, Cecilia Tuesday, May 19, 2015 3:07 PM Christine Thompson; Bradley, Michael W. Charles Easaw; Pentek, Janet; Sabrina Vazquez RE: certification duties image001.jpg Christine, Please have your investigators work with Jan Pentek to arrange times to work at the Jefferson location until a solution is agreed upon. Cecilia Johnson Sent from my Windows Phone From: Christine Thompson Sent: 5/19/2015 5:43 PM To: Johnson, Cecilia; Bradley, Michael W. Cc: Charles Easaw; Pentek, Janet; Sabrina Vazquez Subject: RE: certification duties Michael, Cecilia and Jan I understand the Superintendent is not going to comply with the Board's motion to give complete and unrestricted access to the files, directories and databases necessary for the Investigative Unit (lU) to do their jobs at the Executive Tower. Given that there is pressing work to be done, while the lawyers and courts work out the consequences of the Superintendent's non-compliance, we need to work out an interim solution that allows the lU staff to complete necessary work. Charles Easaw was at ADE on Friday and Monday to deal with recent applications requiring review. Charles is out the rest of this week, and I would like to send over two investigators for a few hours on Wednesday and Friday to review pending applications. Please let me know when would be the best time to send them over to ensure that they have access to the necessary physical and electronic files. Additionally, the lU should have access to any new applications requiring further investigation - which ultimately may require PPAC and Board review, and I have not yet heard back from you regarding the proposed protocols for the secure delivery of files between our offices. I am available to discuss these and other long and short-term solutions regarding the lU's access. CMT Christine M. Thompson 1 Executive Director State Board of Education NEW ADDRESS, EMAIL AND WEBSITE 5/11/15 1700 W. Washington St., Suite 300 Phoenix, AZ 85007 602.542.5057 Website: azsbe.az.gov Christine.Thompson@azsbe.az.gov From: Christine Thompson Sent: Friday, May 15, 2015 10:57 AM To: 'Cecilia.Johnson@azed.gov'; 'michael.bradley@azed.gov' Cc: Charles Easaw; 'janet.pentak@azed.gov' Subject: RE: certification duties Cecilia, Jan and Michael In response to Cecilia's email to Charles last night, Charles will be at the ADE Certification Desk by 11:30 AM today to address the issues Jan identified. I also wanted to follow up on my May 13 email to Cecilia and Michael regarding the Ill's need to access to the ADE databases while they are in their offices in the Executive Tower. I've attached a protocol that outlines the processes by which the lU and CD work together. The only change from the long-established process is that we are a few blocks away. We will provide service by phone and, when necessary, in-person, but we do need ADE to cooperate and provide on-line access here. You indicated computers are set up on the third floor in ADE's building so there should be no problem providing the virtual access that is necessary. If there's anything I can do to expedite the virtual access, please let me know. And while we are in this transition, please copy me on emails to the ID staff so we can address any issues without delay. CMT Christine M. Thompson Executive Director State Board of Education NEW ADDRESS, EMAIL AND WEBSITE 5/11/15 1700 W. Washington St., Suite 300 Phoenix, AZ 85007 602.542.5057 Website: azsbe.az.gov Christine.Thompson@azsbe.az.gov 2 From: Johnson, Cecilia [mailto:Cecilia.Johnson@azed.gov] Sent: Thursday, May 14, 2015 9:38 PM To: Charles Easaw Cc: Pentek, Janet Subject: follow-up request Charles, I met with Jan Pentek this afternoon to review the urgent applications that would normally be handled with a phone call to one of the investigators resulting in a five minute phone call while you verified the educator's record. These teachers are currently teaching and will no longer be allowed in the classroom at this crucial time of the year. It is vital that these 30 applications get reviewed first thing in the morning, so we can notify the LEAs and teachers and not disrupt the education of students. We will have your work station ready to go in the morning. Please be here by 9:00 a.m. We anticipate these critical applications to take a couple of hours for one person or obviously less time if you want to bring additional investigators. Once you have completed these critical reviews, you can choose to leave or stay and begin working on the over 100 applications that need reviewed in the next week. I appreciate your attention to this urgent matter. Cecilia Dr. Cecilia E. Johnson Associate Superintendent Highly Effective Teachers and Leaders Arizona Department of Education Phone: (602)364-1957 cecilia.johnson@azed.gov [AZEDIogo_web (2)] From: Christine Thompson Sent: Wednesday, May 13, 2015 6:36 PM To: 'Cecilia.Johnson@azed.gov'; 'michael.bradley@azed.gov' Cc: Charles Easaw Subject: RE: certification duties Cecilia and MichaelI'm responding to Cecilia's email of May 12 to Charles Easaw, her May 13 letters to all investigators, and to Michael's May 13 verbal directive to Investigator Hector Rivera regarding the office location of the Board's Investigate Unit (lU). I encourage both of you to talk to me directly about these issues so we maintain an effective working relationship between the lU and the ADE Certification Unit, and to ensure that the investigators have the necessary access to the certification database and related certification materials in order to support educators and schools. As noted in my May 8th letter to Michael about the Board's new office location, the work of the lU requires access to the certification database. I was notified late on Monday that all the ADE accounts for Board employees were terminated. The lU unit will need virtual access (VPN) set up so that they can use ADE network to get the information they need. Your email and letters indicated that you had already set up computers on ADE's third floor with access to the necessary databases for the lU. We are simply asking that the lU have virtual access by setting up the VPN as soon as possible to avoid delays In this work. If I can follow up with someone directly to expedite this process, please let me 3 know who to talk to. We would also request that the lU continue to have access to scanned certification materials, as was the case before the relocation. This access has been unavailable since our move. I have asked Charles to prepare proposed protocols to ensure that the transfer of paper files between our offices is done in a manner to protect the files and ensure confidentiality - similar to the procedures used with the Tucson Certification Unit. I hope to provide those to you tomorrow and would be happy to discuss them with you. Rather than provide access to the database and address other logistical issues concerning the move, Cecilia's email to Charles and her letters to the investigators direct the lU to go back to the ADE office. This directive contradicts the Board's approval of the relocation of the Board staff, which includes the lU. It also disregards my role as their supervisor. I was not even copied on the email to Charles or the letters to other Board staff. We have always given prompt service to the Certification Unit and to applicants needing assistance over the phone. Because we are only two blocks away, investigators will also be able to come to ADE to provide face-to-face service as necessary. I will have Charles prepare a proposed schedule for investigators to be available at ADE for onsite questions. But the lU will not relocate to ADE. I encourage ADE staff to work with us to assure that all work can be done from our new location. We hope to resolve issues such as these promptly to avoid further delays. Candidly, this is frustrating. We are trying to provide Board employees a supportive working environment from this location, and Cecilia's email and letters merely create roadblocks to our work. Again, the critical issue is getting access to the certification database. Please advise when this is going to be provided, and how I can assist in expediting the access. I remain available to discuss any of these issues with you. CMT Christine M. Thompson Executive Director State Board of Education NEW ADDRESS, EMAIL AND WEBSITE 5/11/15 1700 W. Washington St., Suite 300 Phoenix, AZ 85007 602.542.5057 Website; azsbe.az.gov Christine.Thompson@azsbe.az.gov From: Johnson, Cecilia [mailto:Cecilia.Johnson@azed.gov] Sent: Tuesday, May 12, 2015 3:04 PM To: Charles Easaw Subject: certification duties Charles, I am informing you that as ADE employees, the Investigative Unit staff is required to continue to provide the exact same service as has been provided until the time you vacated your offices (Saturday, May 9, 2015). Investigative Unit staff will continue to: Provide same day service to all applicants as was provided prior to your departure May 9, 2015. 4 Be on site at 1535 West Jefferson Street to be available for face-to-face conversations with certification staff and applicants. Be on site to review all files as they are not to be removed from this building. Use the third floor offices, which will be set up with the resources needed to complete your required duties. Beginning, Wednesday, May 13, 2015, Investigative Unit staff will be on site in your third floor offices during regular business hours to fulfill your required duties. We will have IT set up access to the certification directories and files on the computer(s) you will be using here in your Jefferson offices. Your attention to these details will ensure that our educators are properly reviewed for employment in our schools. Sincerely, Cecilia Dr. Cecilia E. Johnson Associate Superintendent Highly Effective Teachers and Leaders Arizona Department of Education Phone: (602) 364-1957 cecilia.johnson@azed.gov [AZEDlogo_web (2)] NOTICE: This e-mail (and any attachments) may contain PRIVILEGED OR CONFIDENTIAL information and is intended only for the use of the specific individual(s) to whom it is addressed. It may contain information that is privileged and confidential under state and federal law. This information may be used or disclosed only in accordance with law, and you may be subject to penalties under law for improper use or further disclosure of the information in this e-mail and its attachments. If you have received this e-mail in error, please immediately notify the person named above by reply e­ mail, and then delete the original e-mail. Thank you. 5 EXHIBIT 7 ARIZONA STATE BOARD OF EDUCATION SUMMARY OF BOARD ACTION Regular Board Meeting __________ May 18, 2015__________ MEMBERS ABSENT: Dr. Crow Mr. Schmidt Mr. Deschene MEMBERS PRESENT: Mr. Ballantyne Superintendent Douglas Dr. Rottweiler Ms. Hamilton Mr. Jacks Mr. Taylor Mr. Carter President Miller CALL TO ORDER, PLEDGE OF ALLEGIANCE, MOMENT OF SILENCE, AND ROLL CALL BUSINESS REPORTS Item lA - President's Report Item IB - Superintendent's Report 1. Recognition of the 2014 Milken Educator Awardees Item 1C - Board Member Report Item ID - Executive Director's Report Meeting called to order at 9:01 am Pledge of Allegiance, Moment of Silence and Roll Call confirmed a quorum Recorded comments are available. 01:50) (Part 1 / President Greg Miller gave an update and spoke to Board members on the following topics: Development Standards • Arizona Committee Recorded comments are available (Part 1 / 02:30) Superintendent Douglas gave an update and spoke to Board members on the following topics: • Listening Tour • Charter Schools on Small Schools Weights • Presentation of Milken Awards No Member Reports Recorded comments are available. (Part 1 / 012:16) Executive Director Christine Thompson gave an update and spoke to Board members regarding the following topics: • State Board Policy on Indian Education • Webcasting of Board Meetings • Move On When Reading • Request for Proposals for English Language Learner Pilot • Arizona Standards Development Committee • Teacher & Principal Evaluation Task Force • A-F School Accountability Committee • Offices of the State Board staff 1 Item 2. - CONSENT AGENDA ARIZONA STATE BOARD OF EDUCATION A. CONVENING/ACTING AS THE ARIZONA STATE BOARD FOR VOCATIONAL AND TECHNOLOGICAL EDUCATION FOR THIS ITEM ONLY: Consideration to accept the 2015 Joint Technicai Education (JTED) Report, pursuant to A.R.S. § 15-393(M). Consideration to permanently revoke B. any and all teaching certificates, pursuant to A.R.S. § 15-550, held by the following: Nicole Renee Wooten 1. Carlos Pineda Borja 2. Joseph Robert Stephenson 3. Michael Gregory Oakleaf 4. Consideration to accept voluntary C. surrender of the teaching certificates held by the following: William Scott Ivie 1. ITEM REMOVED Eugene Holloway 2. FROM AGENDA Victor Yee 3. 4. Erin A. Shupe Recorded comments are available. {Part 1 / 17:58) At the request of Superintendent Douglas Items 2A, 2B1-4, and 2C1 were removed from the Consent Agenda for further discussion. MOTION Vice President Baliantyne made approve the Consent Agenda with of Item 2A, 2B.1 - 2B.4, and 2C1 addressed separately. Mr. Jacks motion. a motion to the exception which will be seconded the Motion passed unanimously. ITEM 2A Recorded comments are available. (Part 1/19:56) MOTION Vice President Baliantyne made a motion to receive the 2015 Joint Technological Education (JTED) Report. Member Jacks seconded the motion. Motion passed unanimously. ITEM 2B1-4 Recorded comments are available. (Part 1/24:00) Dr. Cecile Johnson, Arizona Department of Education spoke to the Board regarding item 2B.1-2B.4. MOTION Vice President Baliantyne made a motion to permanently revoke any and all teaching certificates, pursuant to A.R.S. § 15-550, held by the following: 1. Nicole Renee Wooten 2. Carlos Pineda Borja 3. Joseph Robert Stephenson 4. Michael Gregory Oakleaf Member Rottweiler seconded the motion. 2 Motion passed through majority vote (7-1) (Opposed: Superintendent Douglas.) Explaination of vote noted for the record (Part 1/34:50) ITEM 2C Recorded comments are available. (Part 1/35:58) MOTION Vice President Baliantyne made a motion to accept the voiuntary surrender of the teaching certificates held by Mr. William Scott Me. Member Jacks seconded the motion. Motion passed through majority vote (7-1) (Opposed: Superintendent Douglas) Explaination of vote noted for the record (Part 1/36:20) Item 3. CALL TO THE PUBLIC This is the time for the public to comment. Members of the Board may not discuss items that are not specifically identified on the agenda. Therefore, pursuant to A.R.S. 38431.01(H), action taken as a result of public comment will be limited to directing staff to study the matter, responding to any criticism or scheduling the matter for further consideration and decision at a later date. Item 4. GENERAL SESSION Recorded comments are available. 38:56) (Part 1 / The following members of the public spoke during Call to the Public: • • Ms. Merri Zohas, Citizen Jennifer Reynolds, CFO of Arizonans Against Common Core Recorded comments are available. 42:00) (Part 1 / 4A. Presentation, discussion and possible consideration to approve the participation of The following people addressed the Board the following school districts in the accounting regarding this item: responsibility program, pursuant to A.R.S. § 15­ • Shari Zara, Deputy Superintendent of Operations, Arizona Department of 914.01: Education 1. Casa Grande Union High School District 2. Toltec Elementary School District • Jill Broussard, Pinal County School Superintendent • Dr. Shannon Goodsell Superintendent of Casa Grande Union High School District • Dr. Bryan McCleney, Superintendent of Toltec Elementary District • Dr. Jeff Van Handel, Assistant Superintendent of Toltec Elementary District 3 MOTION Vice President Ballantyne made a motion to approve the application ofToltec Eiementary School District to assume accounting responsibility A.R.5. § 15-914.01. Member Taylor seconded the motion. Discussion held. Motion withdrawn. MOTION Superintendent Douglas made a motion to reject the application ofToitec Elementary School District and Casa Grande Union High School District to assume accounting responsibility pursuant to A.R.S. § 15-914.01. Member Rottweiler seconded the motion. 4B. Presentation, discussion, and possible AzMERIT regarding consideration implementation, timeline for the approval of AzMERIT standard setting, and the proposed AzMERIT performance level names and policy level descriptors Motion passed unanimously. Recorded comments are available. (Part 1 / 01:07:20) Christine Thompson, SBE Executive Director presented this item to the Board. The following members of the public spoke during this item: • llde Lasko Kerr, Vice President of Academics, Arizona Charters Association • Janice Palmer, Director of Governmental Relations & Public Affairs, Arizona School Boards Association • Karen Callahan, President of Arizona Alternative Education Consortium MOTION Vice President Ballantyne made a motion to approve the four AzMERIT performance level names and policy level descriptors as described in the materiais. Dr. Rottweiier seconded the motion. Motion passed unaninimously 4 4C. Presentation, discussion and possible consideration regarding proposed accountability criteria to identify schools and school districts for school years 2014-2015 and 2015-2016 that demonstrate a below average level of performance, as contemplated in Laws 2015, Chapter 76 Recorded comments are available. (Part 1 / 01:22:28) Dr. Yovhanne Metcalf presented this item to the Board. The following members of the public spoke during this item: • Dr. Amy Schlessman, Arizona Alternative Education Consortium • Todd Brown, East Pointe High School • lldi Laczko-Kerr, Vice President of Academics, Arizona Charter School Association MOTION Vice President Bailantyne made the motion motion to adopt and implement the proposed accountability criteria to identify below average level of performance for schools and school districts for school years 2014-2015 and 2015­ 2016, as contemplated in Laws 2015, Chapter 76 Member Carter seconded the motion. Member Taylor made a motion to amend the original motion to request staff move forward on the orginal motion and additionally return at the next meeting with a recommendation on how to appropriately address alternative education and how to communicate appropriately with schools. Member Carter seconded the motion The amendment to the motion passed unanimously. The motion, as amended, passed unanimously. 4D. Presentation and discussion regarding proposed amendments to the list of approved tests for determining special education assistance to gifted pupils, pursuant to 15203(A)(15) Recorded comments are available. (Part 1 / 02:16:15) Peter Laing, Senior Director of Gifted Education & Advanced Placement Programs presented to the Board and was available to answer questions. Presentation only. No action required. 5 Presentation, discussion and possible 4E. consideration to initiate rulemaking procedures for proposed amendments to rule R7-2-615(J) and (K) regarding Bilingual Endorsements and Immersion (SEI) English Structured Endorsements, and rule R7-2-621 regarding reciprocal certificates. Recorded comments are available. 02:18:23) (Part 1 / Dr. Cecilia Johnson, Associate Deputy Superintendent presented to the Board and was available to answer questions. MOTION Vice President Baiiantyne made a motion to initiate ruiemaking procedures for proposed amendments to rule R7-2-615(J) and (K) regarding Bilingual Endorsements and Structured English Immersion (SEI) Endorsements, and rule R7-2-621 regarding reciprocal certificates. Member Jacks seconded the motion. Motion Passed Unanimously Presentation, discussion and possible 4F. consideration to accept the findings of fact, conclusions of law and recommendations of the Professional Practices Advisory Committee and accept the proposed settlement agreement for the following: 1. Saralinda Mendivil 2. Katherine Clark Recorded comments are available. 02:20:23) (Part 1 / Item 4F.1 - Saralinda Mendivil Mr. Charles Easaw presented and answer questions to the Board regarding this item. (Part 1/02:20:41) MOTION Vice President Baiiantyne made a motion to approve the proposed settlement agreement and issue a suspension, with conditions, through the expiration of the certificates held by Saralinda Mendivil. Member Jacks seconded the motion. Motion passed unanimously. 6 Item 4F.2 - Katherine Clark Recorded comments are available. 02:29:48) (Part 1 / Mr. Eric Schwartz, Assistant Attorney General presented and answer questions to the Board regarding this item. Denise Blommel, Attorney for Ms. Katherine Clark addressed the Board and answered questions regarding this item. MOTION Vice President Bailantyne made a motion to approve the proposed settiement agreement and issue a suspension, with conditions, through the expiration of the certificates held by Katherine Clark. Member Carter seconded the motion. Motion passed unanimously. 4G. Consideration to accept the findings of fact, conclusions of law and recommendation of the Professional Practices Advisory Committee to grant the application for certification for Kenneth Wheeler Recorded comments are available. 02:36:19) (Part 1 / Mr. Charles Easaw presented and answer questions to the Board regarding this item MOTION Member Rottweiler made a motion to table this item item until the next regular meeting. Member Jacks seconded the motion. Motion passed unanimously 4H. Presentation, discussion and consideration to accept the findings of fact, conclusions of law and recommendation of the Professional Practices Advisory Committee to deny the application for certification for Matthew Campagna Recorded comments are available. 02:38:25) (Part 1 / Mr. Charles Easaw presented and answer questions to the Board regarding this item Mr. Matthew Campagna was available telelphonically and addressed the Board. 7 MOTION Vice President Ballantyne made a motion to accept the recommendation of the Professional Practices Advisory Committee to deny the application for certification for Matthew Campagna. Member Rottweiler seconded the motion. Motion passed unanimously. 41. Presentation, discussion and possibie consideration to approve the proposed academic content standards for the foilowing content areas: 1. Physicai Education 2. World and Native Language 3. Arts Recorded comments are available. 02:57:00) (Part 1 / Ms. Sarah Galetti, Delputy Associate Superintendent for K-12 Academic Standards presented this item to the Board. Item 41.1 Physical Education Recorded comments are available. 02:58:31) (Part 1 / Keri Schoeff, Physical Education/Physical Activity Specialist, Arizona Department of Education present this item to the Board. MOTION Vice President Ballantyne made a motion to approve the proposed academic content standards for Physical Education Member Jacks seconded the motion. Motion passed unanimously. Item 41.2 World and Native Language Recorded comments are available. 03:19:57) (Part 1 / Lacy Wieser, Arizona Department of Education, Director of Science Education, K-12 Academic Section present this item to the Board. 8 MOTION Vice President Bailantyne made a motion to approve the proposed academic content standards for Worid and Native Language Member Jacks seconded the motion. Motion passed unanimously Item 41.3 Arts Recorded comments are available. 03:31:29) (Part 1 / Lynn Tuttle, Arizona Department of Education, Director of Arts Education, K-12 Academic Section presented this item to the Board. MOTION Vice President Bailantyne made a motion to approve the proposed academic content standards for Arts. Member Jacks seconded the motion. Motion passed unanimously. 4J. Presentation, discussion and possible consideration of the FY2015-2016 budget for Board operations Recorded comments are available. 03:49:30) (Part 1 / Christine Thompson, Executive presented this item to the Board. Director, MOTION Vice President Bailantyne made a motion to approve the proposed FY2015-2016 budget for Board operations. Member Hamilton seconded the motion. Motion passed unanimously. 4K. Presentation and discussion regarding Board rules and policies related to Board governance. Recorded comments are available. 03:53:30) (Part 1 / This item was tabled to be heard at the next regular Board meeting. 9 4L Presentation, discussion and possible Recorded comments are available. (Part 1 / consideration regarding the Four-Hour English 03:53:44) Language Development Complaint (U.S. Department of Education Office of Civil Rights This Item was Tabled to be heard at the next (OCR) Case Number 08-10-4046 and U.S. regular Board meeting. Department of Justice (DOJ) Case Number 169­ 8-81). Pursuant to A.R.S. § 38-431.03(A)(3) and (4), the Board may vote to convene in executive session, which will not be open to the public, for discussion or consultation for legal advice with the Board's attorneys and/or for discussion or consultation with the Board's attorneys in order to consider its position and instruct its attorneys in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation. 4M. Presentation, discussion and possible consideration to direct the Superintendent of Public Instruction to grant the employees of the State Board Investigation Unit access to necessary documents, records and electronic information. Pursuant to A.R.S. 38-431.03(A)(3) and (4), the Board may vote to convene in executive session for discussion or consultation for legal advice with the Board's attorneys. Recorded comments are available. (Part 1 / 03:54:07) MOTION Member Taylor made a motion to recess and convene Executive Session for discussion or consultation for iegai advice with the Board's attorneys regarding items 4M and 4N. Member Carter seconded the motion. Motion passed unanimously. Board convened into Executive Session at 12:58pm. Meeting reconvened into Regular Meeting at 1:30pm. MOTION Vice President Bailantyne made the foiiowing motion, seconded by Member Rottweiier: Consistent with the Board's policy adopted February 13,2015 regarding access of Board empioyees to the offices, equipment and documents necessary to do their Jobs and fulfHi their duties to the Board and this Board's April 27,2015 action authorizing staff to iease office space in a new iocation, the Board directs the Superintendent to provide the State Board's Investigative Unit access to aii documents necessary to do their Jobs, inciuding virtuai access to the directors and fiies on the ADE's 10 network that the Investigative Unit requires to fulfiil their duties. Pursuant to ARS §15203(A)(7) and ARS §15-251(5), the Board delegates the responsibility for executing this policy to the Superintendent, who is directed to provide the Board's Investigative Unit with compete and unrestricted access, including remote and virtual, to the directories and flies at their offices in the Executive Tower by close of business Tuesday, May 19, 2015. President Miiier requested a roll call vote: Members Carter, Hamilton, Jacks, Rottweiler, Taylor, Ballantyne and Miller voted for the motion. Superintendent Douglas voted against the motion, explaining her vote. Motion passed through majority vote (7-1) Superintendent Douglas explaination of vote noted for the record (Part 2 /02:03) 4N. Presentation, discussion and possible consideration to affirm that, pursuant to A.R.S. § 15-203(A)(6), the duties of the Executive Director include authority to act on behalf of the Board in all administrative matters, consistent with the policies adopted by the Board. Pursuant to A.R.S. 38-431.03(A)(3) and (4), the Board may vote to convene in executive session for discussion or consultation for legal advice with the Board's attorneys. Recorded comments are available. (Part 2 / 03:23) MOTION Vice President Ballantyne made a motion to affirm that, pursuant toA.R.S. § 15-203(A)(6), the duties of the Executive Director to "direct and manage State Board staff, budget and designated programs and reports" includes administrative authority to act on behalf of the Board related to those matters, consistent with Board policy and statute. Member Jacks seconded the motion. President Miller requested a roll call vote: Members Carter, Hamilton, Jacks, Rottweiler, Taylor, Ballantyne and Miller voted for the motion. Superintendent Douglas voted against the motion, explaining her vote. Motion passed through majority vote (7-1) Superintendent Douglas explaination of vote noted for the record (Part 2 /04:12) 11 40. Presentation, discussion and possible consideration regarding Douglas v. State Board of Education (CV2015-006171). Pursuant to A.R.S. § 38-431.03(A)(3) and (4), the Board may vote to convene in executive session, which will not be open to the public, for discussion or consultation for legal advice with the Board's attorneys and/or for discussion or consultation with the Board's attorneys in order to consider its position and instruct its attorneys in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation. Superintendent Douglas noted that she would not participate in Executive Session for this item due to a conflict of interest (Part 1 / 03:57:00). Recorded comments are available. (Part 2 / 05:34) MOTION Member Carter made a motion to recess and convene Executive Session for discussion or consuitation for legal advice with the Board's attorneys and for discussion or consultation with the Board's attorneys in order to consider its position and instruct its attorneys in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation. Vice President Ballantyne seconded the motion. Motion passed unanimously. Board convened into Executive Session at 1:36pm. Meeting reconvened into Regular Meeting at 1:58pm. Member Rottweiler left the meeting at 1:47pm. Recorded comments are available. (Part 3 / 03:40) MOTION Vice President Ballantyne made a motion to direct the Board's attorneys to proceed as instructed in Executive Session. Member Jacks seconded the motion. 5. Board comments and future meeting dates. The executive director, presiding officer or a member of the Board may present a brief summary of current events pursuant to A.R.S. § 38-431.02(K), and may discuss future meeting dates and direct staff to place matters on a future agenda. The Board will not discuss or take action on any current event summary. Motion passed through majority vote (6-0-1), with Superintendent Douglas abstaining. Recorded comments are available. (Part 3 / 04:05) No Board member comments. 12 Item 5. ADJOURN Recorded comments are available. (Part 3 / 04:28) MOTION Member Jacks made a motion to adjourn the meeting. Vice President Ballantyne seconded the motion. Motion passed unanimously. Meeting adjourned at 2:02pm 13 EXHIBIT 8 Mary R. O’Gtady OSBORN M A L E D O N A PROFESStONAL ASSOCIATION ATTORNEYS AT UAW mogrady@omlaw.coni DirectLine 602.640.9352 2929 North Central Avenue 21st Floor Phoenix, Ahnona 85012 Telephone Facsimile omlaw.com 602.640.9000 602.640.9050 July 17, 2015 Via E-Mail Stephen W. Tully Hinshaw & Culbertson LLP 2375 E. CamelbackRd., Ste. 750 Phoenix, AZ 85016 Re: State B oard of Education Dear Steve: I am writing in response to your July 14, 2015 letter and to raise an additional issue that requires attention. We had hoped that the Court’s order earlier this week would lead to an atmosphere of cooperation rather than perpetual conflict and brinkmanship. Our hope remains that this litigation will truly come to an end, and the Board and Superintendent can work together to fulfill their respective responsibilities. Unfortunately, your letter indicates that this is wishful thinking. We urge you and your client to reconsider this approach for the sake of the public interest that our clients both serve. Filling Vacancies on Board Staff. Your letter and the Superintendent’s July 15, 2015 letter to the Board attempt to block any work by the Board’s Executive Director to fill two positions on Board staff Frankly, even if she had the authority to do so, why would the Superintendent want to delay the Board from filling a position that provides administrative support to the Board’s investigators, particularly when the beginning of the school year is thenbusiest and most important time? Why would the Superintendent want to delay the Board from filling any position that the Board has authorized and for which the Legislature has appropriated funding? The staff work necessary to fill these vacancies should continue, and the Superintendent should not impede that work. The investigator’s administrative assistant left this week to take a position at the Attorney General’s Office, and the deputy director will leave in August to take a position with the University of Arizona. After the Board’s executive director received notice of the administrative assistant’s resignation, she advised the Department of Education’s human services office that she would be working with the Department of Administration to fill the position. As you know, in April, the Board authorized the executive director to enter agreements with the Department of Administration regarding various administrative support services, including human resources support. The court’s recent decision recognized the Board’s authority to make this type of policy decision. And, as your own exhibits filed with the court show, since 1997 the Board’s executive director has been responsible for “making hiring, termination, salary and discipline decisions regarding employees under [her] supervision.” Exhibit D to Superintendent’s Statement of Facts Supporting Motion for Summary Judgment. Stephen W. Tully July 17, 2015 Page 2 The decision to establish these staff positions and to keep them filled is a policy decision that the Board has already made. The salaries for both positions are incorporated in the fiscal year 2016 budget that the Board previously approved. Because these policy decisions have already been made, the responsibility of Board staff is to implement those decisions. In this case, this means doing the staff work necessary to get those positions filled. Your suggestion that the Executive Director cannot do anything to fill these positions and, instead, must wait until the Superintendent makes a recommendation to the Board undermines all relevant Board policy and common sense. To further threaten the Executive Director with personal liability (as your letter indicated) if she does what her job description requires is just bullying of Ms. Thompson. And, as you must realize, after the court’s decision, the Superintendent’s assertion that the Board’s current employees are working “illegally” is flat wrong. If there are issues to address regarding these vacancies, the Board will do so, but I encourage you to have your client reconsider trying to use these staff vacancies to further undermine the work of the Board. Complying with Board Policy to Provide Remote Access to Investigators. I also wanted to follow up with you regarding the Superintendent’s failure to comply with the Board policy requiring her to provide the investigators with remote access to the certification database. In May, the Board directed the Superintendent to provide remote access to this database. In light of the litigation, we have not pressed this issue. But now that the court has affirmed the Superintendent’s obligation to implement Board policy, please assure that this access is provided without further delay. Failing to provide this remote access violates the Superintendent’s statutory responsibility to implement board policy and unnecessarily undermines the work of the investigative unit. Let me know when this access issue is resolved or, alternatively, please have ADE staff advise Christine Thompson when this is done. This really should be handled at a staff level because the Board policy on the issue has been established. If you would like to discuss any of the issues in this letter, please contact me. Again, we hope that the litigation can end with Judge Starr’s decision, and the Board and Superintendent can begin working together. It is time to focus on the many issues facing the Board. Please allow it to do so. Sincerely, /yi Mary R. O’Grady MROipln 6196207 Mary R. O’Gtady OSBORN M A L E D O N A PROFESSIONAL ASSOCIATION ATTORNEYS AT LAW mn8rady@.i ilaw.rnm 2929 North Central Avenue 21st Floor Phoenix, Arizona 85012 Direct Line 602.640.9352 Telephone Facsimile omlaw.com 602.640.9000 602.640.9050 July 30, 2015 Via E-Mail Stephen W. Tully Hinshaw & Culbertson LLP 2375 E. Camelback Rd., Ste. 750 Phoenix, AZ 85016 Re: Remote Access to Certification Database Dear Steve: 1 wanted to follow up again about the Board’s investigators’ need for remote access to the certification database. I did not hear from you on that issue after my July 17 letter, and 1 understand there has been no follow up by Arizona Department of Education (“ADE”) staff to provide the Board’s investigators with the access that Board policy requires. To be clear, the Superintendent does not have the discretion to deny the access that the Board has required. She is required to execute Board policy. A.R.S. § 15-251(5). As you know, in February, the Board established a policy regarding Board staff s access to offices, equipment and documents needed to perform their jobs, and in May, the Board made it clear that this policy applies to the certification database. In May, the Board specifically required the superintendent to provide the investigators with remote access to the database. There has been no compliance with this policy since the Board adopted it more than two months ago. Moreover, ADE does not control the certification process. The Board is statutorily responsible for “[s]upervis[ing] and controlling] the certification” process. A.R.S. § 15203(A)(14); see also A.R.S. § 15-350(A) (Board responsibilities regarding investigations). To comply with the policy manual governing the certification process, the Board’s investigative unit must have access to the database. See Ariz. State Bd. of Educ. Investigative Unit, Poliey Handbook (January 2007) (“Policy”). The Board’s investigators do not merely passively review information on the database. They are required to update information on the database on a regular basis. For example: The assigned Board Investigator must make the necessary notations in the database if the Board denies a certification application. Policy at I(B)4)(c)(i); Upon receipt of a written report of unprofessional conduct, the Investigative Unit’s administrative assistant is required to “make note of the report in the appropriate databases,” Policy at 11(A)(2)(a), (b), (3); Stephen W. Tully July 30, 2015 Page 2 When an investigation into claims of unprofessional conduct are opened and prioritized, the investigators are required to “[m]ake the necessary notations in the ... databases.” When cases are closed, the investigators again make the necessary notations in the database. Policy at 11(B)(3)(b); When the State Board censures, suspends, or revokes a certified person, the database is again updated. Policy at 11(D)(7)(b), (c), (d); When a person voluntarily surrenders a certificate or a certificate is automatically revoked, the databases are again updated, Policy at II(F)(l)(c)(i), (2)(c)(i); The Investigative Unit’s Administrative Assistant enters all fingerprint clearance card notices from the Department of Public Safety into the necessary databases. Policy at IV(A)(2). At least on a monthly basis, the Chief Investigator ensures that information from NASCTEC regarding disciplinary actions in other states is downloaded to the database. Policy at V(B). To assure that the certification work continued pending the Superintendent’s compliance with the Board’s policy requiring remote access to the database, the Board’s investigators have been going to the ADE building at 1535 West Jefferson to do this work. The investigators have this access during business hours only; they have no access to the database at any location other than that ADE building. And while at ADE using the computer, the investigators have no phone or email access. They cannot print information from the database or save any of it for use at their offices. They can only take notes on the information that is in the database and update it as necessary. In addition to their investigative responsibilities, the Board’s Investigative Unit responds to inquiries from school districts regarding personnel issues as required by A.R.S. § 15-350(B). While these requests were previously answered immediately, there is now at least a one-day delay because of the lack of remote access to the certification database. The current limited access to the certification database violates the Board’s policy adopted at its May 18, 2015 meeting. Although Board staff has received no explanation for the non-compliance with Board policy on this issue, the July 14, 2015 Yellow Sheet quoted Michael Bradley, the Superintendent’s Chief of Staff, as commenting that ADE cannot merely “flip a switch” to provide the access that the Board mandated. The article also said that the access would require “data-sharing agreements between the department and board because of privacy concerns and additional computer security.” A data-sharing agreement between the State Board is not necessary to provide remote access. As described above. Board policy already directs and authorizes Board access to this database, and by statute, the Board controls and supervises the entire certification process. Under this policy and statute, ADE has no authority to deny Board staff access to this database as the Board has mandated. No new agreements are required as a result of State Board Stephen W. Tully July 30, 2015 Page 3 staffs relocation to an office outside of ADE’s building. Moreover, the information in the database continues to be shared with Board staff, albeit inefficiently. The second objection reported in the article was computer security. This too is not a legitimate objection. The database’s security is not linked to its use in a specific building. ADE staff in other cities already have access to this database. Indeed, ADE recently announced expanded certification services in Flagstaff. And, before Board staff relocated to their present offices, I understand that they had VPN/remote access to the database and that ADE decided to cut off that access when Board staff moved to their new offices in May. In today’s technology, providing secure access to a database at more than one location is common and uncontroversial. Nevertheless, if there are security issues, please resolve them or, at least, explain what the purported security issues are so that any legitimate issues can be addressed and resolved. Please confirm by Tuesday, August 4, 2015, that remote access to the certification database is being provided as the Board has directed. If that access is not available by that date, please explain the reason for the failure to comply with the Board’s policy and what steps are being taken to resolve those problems and come into compliance. This is an important issue for our students, teachers, and public schools so please get this problem resolved without further delay. Sincerely, Mary R. O’Grady MRO:pln 6208904 EXHIBIT 9 ARIZONA STATE BOARD OF EDUCATION Regular Board Meeting, August 24, 2015 1535 W. Jefferson, Conf Room 122, Phoenix, Arizona 85007 SUMMARY OF BOARD ACTION MEMBERS ABSENT: MEMBERS PRESENT: Mr. Deschene Dr. Crow Mr. Schmidt Superintendent Douglas Ms. Hamilton Mr. Taylor Dr. Rottweiler Mr. Carter Mr. Jacks Vice President Ballantyne President Miller CALL TO ORDER, PLEDGE OF ALLEGIANCE, Meeting called to order at 9:00 am Pledge of Allegiance, Moment of Silence and MOMENT OF SILENCE, AND ROLL CALL Roll Call confirmed a quorum Item lA - President's Report 1. WestEd Appointment of Carol Lippert Item IB - Superintendent's Report 1. Presidential Award for Excellence in Mathematics and Science Teaching (PAEMST) • Marni Landry, Paradise Valley High School • Shannon Mann, Osborn Middle School 2. 2015 CIO 100 Award Mark Masterson Item 1C - Board Member Report Recorded comments are available (Part 1/00:01:58) President Miller announced Carol Lippert's appointment to WestEd. Recorded comments are available (Part 1/00:02:21) Superintendent Douglas presented awards as listed on the agenda. Recorded comments are available (Part 1/00:10:25) Amy Hamilton gave an update to the Board regarding the Teacher Principle Evaluation Task Force. Jared Taylor gave an update on the Arizona Standard Development Committee. Executive Director Christine Thompson gave an update and spoke to Board members regarding the Standard Development Committee. Item ID - Executive Director's Report Recorded comments are available. (Part 1/00:16:08) No report. 1 Consideration to approve the Recorded comments are available. (Part 1/00:17:22) A. following contract abstracts for distribution of MOTION grant funds pursuant to A.R.S. Title 15, Article Member Jacks made a motion to approve the I: 21st Century Community Learning Consent Agenda with the exception of Item 2C5 and 1. 2D1-3. Member Taylor seconded the motion. Center Grant 2. Migrant Education Program - State Motion passed unanimiously Migrant Parent Advisory Council (SMPAC) Migrant Education Program 3. Discussion was held regarding item 2C5. Binational Migrant Education Program Migrant 4. MOTION Hotline McKinney-Vento Homeless Education Superintendent Douglas made a motion to accept 5. the voluntary surrender of the teaching certificate Assistance held by Larry Shorty. Member Carter seconded the Consideration to approve additional motion. B. monies for teacher compensation for Fiscal Motion passed unanimiously. Year 2015-2016 to districts that have submitted Statements of Assurance, pursuant Discussion was held regarding items 2D1-3. to A.R.S. § 15-952 and A.R.S. § 15-537 Members requested a future agenda item concerning Consideration to accept voluntary the effects of teacher contract breaks on teacher C. surrender of the teaching certificates held by recruitment and retention. the following: MOTION Rachel Reny 1. Member Carter made a motion to accept the Kenneth Melton 2. proposed settlement agreements for the following: Agnes Gent 3. • Jennifer Keefer Eugene Holloway III 4. Larry Shorty 5. • Boone Keeefer • Beth Hernandez Consideration to accept the proposed D. Vice President Ballantyne seconded the motion. settlement agreement for the following: Jennifer Keefer 1. Motion passed unanimously. Boone Keefer 2. Beth Hernandez 3. Consideration to accept the findings E. of fact, conclusions of law and recommendation of the Professional Practices Advisory Committee to grant the application for certification for Stephen Renard Item 3. - CALL TO THE PUBLIC Recorded comments are available. (Part 1/19:22) The following members of the public spoke during Call to the Public: • Alan Watt, Phoenix Peace Initiative • Russell Kukla, CreateK12change.org • Joe Geusic, Arizona Resident 2 GENERAL SESSION Recorded comments are available. (Part 1/55:58) and discussion Presentation, 4A. consideration of request for a rehearing of decision to deny application for certification for Matthew 0. Campagna Mr. Charles Easaw, Chief Investigator, presented this item to the Board. Mr. Campagna addressed the Board via conference call. MOTION Vice President Ballantyne made a motion to deny Mr. Campagna's request for reconsideration, pursuant to R7-2-709, Member Jacks seconded the motion. Roll Call Vote was taken. Members Crow, Schmidt, Carter, Rottweiler, Taylor, Jacks, Hamilton, Superintendent Douglas, Vice President Ballantyne and President Miller voted yes. Motion passed unanimously. Recorded comments 1/01:17:19) Presentation, discussion and possible 4B. consideration to accept the findings of fact, conclusions of law and recommendations of the Professional Practices Advisory Committee and accept the proposed settlement agreement for the following: Rogelio Hernandez 1. Kristine Sojourner 2. Brooke Huntington-Smith 3. Zoe Dietrich 4. are available. (Part Mr. Eric Schwarz, Assistant Attorney General, presented these items to the Board. 4B1. Rogelio Hernandez MOTION Vice President Ballantyne made a motion to approve the proposed settlement agreement and issue a suspension, with conditions, through the expiration of the teaching certificates held by Rogelio Hernandez. Member Schmidt seconded the motion. Motion passed unanimiousiy. 4B2. Kristine Sojourner MOTION Vice President Ballantyne made a motion to approve the proposed settlement agreement and issue a 90-day suspension, with conditions, of the teaching certificates held by Kristine Sojourner. Dr. Rottweiler seconded the motion. Motion passed unanimiousiy. 3 4B3. Brooke Huntington-Smith MOTION Vice President Baliantyne made a motion to approve the proposed settiement agreement, revise the expiration date of Principal Certificate to August 10, 2016 and issue a two-year suspension, with conditions, of the teaching certificates held by Brooke Huntington-Smith. Member Taylor seconded the motion. Motion passed unanimiously. 4B4. Zoe Dietrich MOTION Vice President Baliantyne made a motion to approve the proposed settlement agreement, revise the expiration date of Principal Certificate to August 10, 2016 and issue a two-year suspension, with conditions, through the expiration of the teaching certificates held by Brooke Huntington-Smith. Member Carter seconded the motion. Motion passed unanimiously. Recorded comments are available. (Part 1/01:45:30 and Part 2/00:03:45) Presentation, discussion and possible 4C. consideration to approve proposed performance levels (cut scores) for the National Center and State Collaborative Alternate Assessment (NCSC). This item was presented by Dr. Leila Williams, Associate Superintendent for High Quality Assessments and Adult Education, Audra Ahumada, Director of Alternate Assessment and Dr. Lietta Scott, Director of Psychometrics. Discussion was held and item was tabled until additional data is gathered and provided by the Department. Discussion resumed at 11:45am. MOTION Vice President Baliantyne made a motion to adopt the proposed NCSC Alternate Assessment performance levels as presented. Member Jacks seconded the motion. Motion passed unanimously. 4 Recorded comments are /01:57:35) discussion and Presentation, 4D. consideration to determine noncompliance with laws applicable to English language learners, pursuant to A.R.S. § 15-756.08 (J) for Bradley Academy of Excellence available. Jordan Ellel, Assistant Attorney presented this item to the Board. (Part 1 General, MOTION Vice President Baiiantyne made a motion to find, for the reasons stated in ADE's letter of noncompUance dated April 23, 2015, that the Bradley Academy of Excellence is noncompliant with the laws pertaining to ELLs, thereby barring the District from receiving any monies from the Arizona Structured English Immersion Fund established by A.R.S § 15-756.04 for ELLs and from reducing the monies spent on its ELL programs despite the loss of monies caused by its noncompliance. Dr. Rottweiler seconded the motion. Motion passed unanimously. As required by law, ADE shall monitor the Bradley Academy of Excellence to ensure that the District does not reduce the amount of monies spent on The Bradley Academy of its ELL programs. Excellence shall be entitled to receive monies from the Arizona Structured English Immersion Fund only upon confirmation to the Board by ADE that the LEA has come into compliance with the laws pertaining to ELLs. This item was removed from the agenda prior to the meeting. 4E. Presentation, discussion.and-consideration for the Move On to approve qualification When Ready (MOWR)/Excellence for all Cambridge International Examinations IG€SEEnglish Literature and Mathematics (Extended), articulate the qualification scores for the Cambridge systems using the Cambridge letter grading system;-and approve the refinements to the structure of the qualifications system within Cambridge for the Grand Canyon Diploma 5 and discussion Presentation, 4F. consideration of the recommendation of the chief procurement officer regarding the Request for Proposals (RFP) for the technology provider for the K-6 technology based language development and literacy intervention pilot program pursuant to A.R.S. § 15-217. Pursuant to A.R.S. § 38-431.03(A)(2) and (3), the Board may vote to convene in executive session to review confidential information and/or for discussion or consultation for legal advice. Recorded comments are 1/02:12:00 and Part 2/02:17) available. (Part Patty Clark, Chief Procurement Officer for the Department of Education, and State Board of Education Executive Director Christine Thompson presented this item to the Board. MOTION Superintendent Douglas made a motion to convene into Executive Session to review confidential information and/or for discussion or consultation for legal advice. Member Taylor seconded the motion. Motion passed unanimously. Meeting convened into Executive Session at 11:20pm. The Board reconvened back into Regular Session at 11:40pm. Dr. Rottweiler made a motion to agree with the recommendation of the chief procurement officer that the award of the contract for the technology provider for the pilot program prescribed in A.R.S. 15-217 to the Scientific Learning Corporation is in the best interest in the State. Vice President Ballantyne seconded the motion. ________Motion passed unanimously. Recorded comments are available. (Part 2/) Presentation, discussion and 4G. consideration to initiate rule making procedures for proposed amendments to rule R7-2-615(L) regarding Structured English Immersion (SEI) Endorsements Executive Director, Christine Thompson presented this item to the Board. MOTION Vice President Ballantyne made a motion to initiate rulemaking procedures for proposed amendments to rule R7-2-615 regarding Structured English Immersion Endorsements. Member Carter seconded the motion. Motion passed unanimously. 6 Presentation, discussion and possible Recorded comments are available. (Part 2/16:10) 4H. action to adopt the proposed AzMERIT 3rd grade Reading score which demonstrates a student's The following members of the public spoke during reading falls far below the third grade level for Call to the Public: • llde Lesko-Kerr, Vice President of purposes of promotion, as required in ARS §15­ Academics, Arizona Charters Association 701 (Move On When Reading cut score) • Joe Thomas, Vice President, Arizona Education Association • Jennifer Kasten, Parent and Leader of Public Policy, Decoding Dyslexia Arizona MOTION Dr. Rottweiler made a motion, seconded by Member Carter, to adopt the proposed AzMERIT 3rd grade Reading score to demonstrate a student's reading falls far below the third grade level for purposes of promotion, as required in ARS §15-701, for the 2015 and 2016 administrations of AzMERIT; to only report the 2015 scores to districts; to require the Department reconvene a standard setting committee to provide a recommended "falls far below" level for subsequent years; for the Department to present recommendations at a subsequent meeting; and for Board to seek additional legislation regarding Move On When Reading as necessary to align with the current statewide assessment. Motion passed unanimously. Member Crow left the meeting at 1:10pm Recorded comments are available. 2/01:32:00 and Part 3/02:25) 41. Presentation, discussion and possible consideration regarding Douglas v. State Board of Education (CV2015-006171). Pursuant to A.R.S. § 38-431.03(A)(3) and (4), the Board may vote to convene in executive session, which will not be open to the public, for discussion or consultation for legal advice with the Board's attorneys and/or for discussion or consultation with the Board's attorneys in order to consider its position and instruct its attorneys in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation. (Part Mary O'Grady gave an update on item 41. Executive Director Thompson gave an update on item 4J. MOTION Member Schmidt made a motion, seconded by Member Hamilton, to convene into Executive Session for discussion or consultation for legal advice with the Board's attorneys and/or for discussion or consultation with the Board's attorneys in order to consider its position and instruct its attorneys in pending or_________ 4J. Presentation, discussion and possible action regarding the execution of the May 18,2015 7 contemplated litigation or in settlement discussions conducted in order to avoid or resoive litigation. Board policy requiring the Superintendent to grant the employees of the State Board Investigation Unit access to necessary documents, records and electronic information. Pursuant to A.R.S. 38-431.03(A)(3) and (4), the Board may vote to convene in executive session for discussion or consultation for legal advice with the Board's attorneys. Motion passed 8-1, with Superintendent Douglas voting no. Superintendent Douglas announced she would recusing herself from the Executive Session. Meeting reconvened back into regular session at 1:55pm, and Member Rottweiler left the meeting. MOTION Member Schmidt made the following motion, seconded by Member Jacks: "I move that pursuant to A.R.S. § 15-203(A)(7) and A.R.S. § 15251(5), the Board continues to direct the provide the Board's Superintendent to Investigative Unit with virtual access to the directories and files necessary to fulfill their duties at their offices in the Executive Tower and that the Superintendent provide this access by the close of business Tuesday, August 25, 2015. And if the Superintendent does not comply with this policy, the Board President shall call a special meeting of the Board as soon as possible. tf Roll Call Vote was taken. Members Schmidt, Carter, Taylor, Jacks, Hamilton, Vice President Ballantyne and President Miller voted yes. Superintendent Douglas voted no. Motion passed by a vote of 7-1. Recorded comments are available. (Part 3/05:45) Ms. Thompson discussed previous request regrading the RFI for high school equivalency testing. Member Taylor requested a future item regarding courses used for the 4**’ math credit requirement. 5. SUMMARY OF CURRENT EVENTS, FUTURE MEETING DATES AND ITEMS FOR FUTURE AGENDAS. The executive director, presiding officer or a member of the Board may present a brief summary of current events pursuant to A.R.S. § 38-431.02(K), and may discuss future meeting dates and direct staff to place matters on a future agenda. The Board will not discuss or take action on any current event summary. Item 5. - ADJOURN Meeting adjourned at 1:58pm. 8 EXHIBIT 10 P www.azed.gov/state-board-education/ rv \ X > / /' EDUCATION STATE BOARD Homs t Mseting InformationRules Additional Information Board Members [ Contact Us [ You are here; Homs ® DEPARTMENT MENU Home > Superintendent Aceountabilihy > To aggressively set policies that foster excellence in public education. Standards & Asssssmenf Ge nera I infoimation Educator Certification > > Finance / IT / Business Services x Special Education > composed of the following eleven msmbers; the superintendent of public instructidn; English Language Learners > the president of a stats university or state coilegs. four lay members, a president or Empioyment Opportunities > chancelldr ofa community coilegs district a person who is an owner or administrator of School Reports I School Results > The Stats Board of Education is created by the Arizona Constitution and charged with the responsibility of regulating the conduct of the public school system. The Board is county school superintendent Each rnsmbef, other than the superintendent of public instruction, is appointed by the governor with the consent of the senate. Members are State Board of Education appointed to a term of four years. in addition to its general regulatory responsibilities, Arizona law charges the Board with numerous other duties. The primary powers and duties of the Board are articulated in A,R.S. §15-203. Forthepurposes of federallaw, the State Board of Education also serves as the State Board for Vocational and Technological Education; District Schools Charter Schools Private Schools I d; ® PRE NOT PUE E a charter school, a superintendent of a high school district a classroom teacher and a Career & Technical Education ® FIND A SCHOOL ! Mission AbqutDepartment of Education All Pto^tnmS ®UPC .,5 NOTICE OF PUBLIC MEETNSS: Per .A.R.S. §38-431.02, all notices of the meetings for the Arizona State Board of Education and any of its committees and subcommittees will be posted on this website. Notices will also be posted in the 1st floor lobby of the Departmerit of Education, 1535 W. Jefiersoh, Phoenix, Arizona 85007, which is open to the public between 8 a^m. and 5 p.m. Monday tlirough Friday except legal holidays. Such notices will indicate the date, time, a.nd place of the meeting and will include an agenda. 2 9 16 23 30 3 10 17 24 EXHIBIT 11 O ^ https://azsbe.az.gov/pubfic-meetings := state x'^encifis ■Jjf- state Seriices Arizona State Board of Education M m Fodering Excellence in Public Educatbn Si ^ 1 PUBLIC MEETINGS RULES RESOURCES BOARD, COMMITTEES & STAFF CONTACT US PHftZicMeefffigs Public Meeting^ BOARD AND ADf/ISORY COMMITTEE MEETINGS. AGENDAS, AND MINUTES Per x4.R.S. §38-431.0!2, aJInotices of theraeetmgs forth© Arizona State Board of Education and any of its committees and subcommittees mIU be posted on this website. I^otices also be posted outside Room 120 at 1535 W. Jefferson, PhOeniiH, AZ 85007, whicfi is open pubKc bettveen 8 a.m. aads p.m, Monday through Friday exceptlegal holiday’s. Such notices indicate the date, time, and place ofthe meeting and itiJl include an agenda. Board Meetings Committee Meetings Rule Hearings I ■ The ^oard gen erally meets monthly on th e forth lion day of ea ch mon-fii, as n ecessarj* an d nith th e establish meat of a quorum. Boa rd meeting notices are posted at least 24 hours in ad\^nce onthis webpage and outside Room 122 at 1535 W. Jefferson, Phoenix, AZ S5007. The agenda aadrelated materials for a particular meeting maybeaccessedby clicking the document link in the table below or bycHekingthemeetsag date. A suraman^ ofthe meeting motions, as well as a recording ofthe meetiag, are available for meedngs occurring since Januan- 2013 and uiil be awiilable within three business da}s ofthe completion of any future meeting. EXHIBIT 12 ARIZONA STATE BOARD OF EDUCATION Special Board Meeting, September 15,2015 1535 W. Jefferson, Conf Room 122, Phoenix, Arizona 85007 SUMMARY OF BOARD ACTION MEMBERS ABSENT: MEMBERS PRESENT: Mr. Deschene Mr. Schmidt Dr. Crow Ms. Hamilton Superintendent Douglas Mr. Taylor Dr. Rottweiler (via teleconference) Mr. Carter Mr. Jacks Vice President Ballantyne President Miller Meeting called to order at 2:00 p.m. CALL TO ORDER, ROLL CALL Roll Call confirmed a quorum Item 1 - Presentation, discussion and possible action regarding the execution of the May 18, 2015, and August 24, 2015, Board policy requiring the Superintendent to grant the employees of the State Board Investigation Unit access to necessary documents, records and electronic information, including possible litigation. Pursuant to A.R.S. 38-431.03(A)(3) and (4) , the Board may vote to convene in executive session, which will not be open to the public, for discussion or consultation for legal advice from the Board's attorneys and/or for discussion or consultation with the Board's attorneys in order to consider its position and instruct its attorneys in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation. Recorded comments are available (Part 1/00:3:52) Motion (Part 1/00:07:09:) Member Schmidt made the following motion, seconded by Vice President Ballantyne: "On May 18, this Board directed the Superintendent to provide the Board's investigators virtual access to the directories and files necessary to do their jobs by close of business May 19, 2015. She failed to do so. On August 24, 2015, the Board directed the Superintendent to provide the Board's investigators with virtual access to the directories and files necessary to do their jobs by close of business August 25, 2015. Again, she failed to do so. Because the Superintendent has failed to implement the Board's policy regarding investigators' access to the information necessary to do their jobs, I move that the Board authorize its counsel to take all necessary action including if necessary, filing a lawsuit requiring the Superintendent comply with the Board policy requiring that the investigators have virtual access to all files and directories necessary to do their Jobs. This includes all data, digital, paper and any indivual file of any and all certified personnel in the State of Arizona and housed by the Arizona Department of Education." The motion passed unanimously. 1 Item 2 - Presentation, discussion and possible Recorded comments are available(Part 1/00:09:19) action regarding the maintenance of the Board's Motion {Part 1/00:15:33) and https://azsbe.az.gov/. at website redirection of ail web traffic from the Board's Vice President Ballantyne made the following former website at http://azed.gov/state-board- motion, seconded by Member Schmidt: education/, and its subpages, to the Board's "The State Board of Education's website is at current website at https://azsbe.az.gov/, www.azsbe.az.gov . The website is an important including possible litigation. Pursuant to A.R.S. means of communication for the public. The 38-431.03(A)(3) and (4), the Board may vote to website of the State Board of Education, convene in executive session, which will not be maintained by the Department of Education at open to the public, for discussion or www.azed.gov/state-board-education/ shall be consultation for legal advice from the Board's removed and the department of education shall attorneys and/or for discussion or consultation direct any internet traffic concerning the State with the Board's attorneys in order to consider Board of Education to the State Board's website its position and instruct its attorneys in pending at: www.azsbe.az.gov . The Superintendent is or contemplated litigation or in settlement directed to implement the portion of this policy discussions conducted in order to avoid or that relate to the State Board of Education by the close of business Septmeber 16*\ 2015." resolve litigation. Motion to Amend (Part 1/00:16:36) Member Rottweiler made a motion to amend the motion to include the following statement, seconded by Member Taylor: "Pursuant to Arizona Revised Statutes §15-251(5), the superintendent of pubiic instruction shall "[ejxecute, under the direction of the state board of education, the policies which have been decided upon by the state board.'" Member Taylor seconded the motion to amendment the motion. The motion to amend passed unanimously. Motion, as Amended (Part 1/00:17:33) The motion, as amended, passed unanimously. Motion (Part 1/00:17:50) Vice President Ballantyne made the following motion, seconded by Member Schmidt: "That the Board authorize its attorneys to file a lawsuit to require the Superintendent to comply with the Board's policy regarding its website if the Superintendent fails to implement the policy by the close of business September 16, 2015." The motion passed unanimously. 2 Item 3 - Presentation, discussion and possible action regarding filling a Board staff vacancy in the position of Executive Assistant to the Board, including consideration of the Superintendent's recommendation and those of other Board members. Pursuant to A.R.S. 38-431.03(A)(3) , the Board may vote to convene in executive session, which will not be open to the public, for discussion or consultation for legal advice from the Board's attorneys. Recorded comments 1/00:19:05) are available (Part Motion (Part 1/00:19:05) President Miller made the following motion, seconded by Member Schmidt: "I don't believe that this motion I am going to make is necessary in light of the Executive Director's job description, but I am making this motion so that there is absolute clarity regarding the scope of authority of the Executive Director of the State Board of Education. I move that the Board's Executive Director take all steps necessary to fill the position of Executive Assistant to the Board." The motion passed unanimously. Item 4 - Presentation, discussion and possible action regarding filling a Board staff vacancy in the position of Executive Director, including appointment of an interview committee, review of the position description, and consideration of the Superintendent's recommendation and those of other Board members. Pursuant to A.R.S. 38-431.03(A)(3), the Board may vote to convene in executive session, which will not be open to the public, for discussion or consultation for legal advice from the Board's attorneys. Recorded comments 1/00:23:50) are available. (Part Motion (Part 1/00:30:05) Vice President Ballantyne made a motion, seconded by Member Taylor, to approve the the proposed Responsibilties, Knowledge and Skills for the Executive Director as proposed with the changes discussed by the Board. The motion passed unanimously. Motion (Part 1/00:32:30) President Miller made the following motion, seconded by Vice President Ballantyne: "1 move that the Board direct the Executive Director to post the position of Executive Director as soon as possible, and that a Committee comprised of the Board President Greg Miller; Vice Chair Reginald Ballentyne, III; Superintendent Douglas; Member Hamilton; and Member Schmidt be formed to review applications, conduct interviews, and make further recommendations to the Board regarding filling the Executive Director position." The motion passed unanimously. 3 Item 5 - Presentation, discussion and possible Recorded comments available. (Part 1/00:39:43) consideration regarding Douglas v. State Board Motion (Part 1/00:42:30) of Education {MARCV2015-006171; ICA-CV 15­ 0597). Pursuant to A.R.S. § 38-431.03(A)(3) and President Miller made a motion, seconded by (4), the Board may vote to convene in executive Member Taylor, to convene into Executive session, which will not be open to the public, for Session, Pursuant to A.R.S. § 38-431.03(A)(3) and discussion or consultation for legal advice with (4), for discussion or consultation for legal advice the Board's attorneys and/or for discussion or with the Board's attorneys and/or for discussion consultation with the Board's attorneys in order or consultation with the Board's attorneys in order to consider its position and instruct its attorneys to consider its position and instruct its attorneys in pending or contemplated litigation or in in pending or contemplated litigation settlement discussions conducted in order to settlement discussions conducted in order to avoid or resolve litigation. avoid or resolve litigation. The motion passed unanimously. The Board convened into Executive Session at 2:43 Member Rottweiler left the meeting at 3:10 p.m. Motion (Part 2/00:00:31) Vice President Ballantyne moved to direct counsel to proceed as directed in Exec Session, Member Taylor seconded the motion. The motion passed unanimously. ADJOURN EXHIBIT 13 Maty R. O’Gtady OSBORN M A L E D O N A PROFESSIONAL ASSOCIATION ATTORNEYS AT LAW mngr{^dy@om1aw. rnm Direct Line 602.640.9352 2929 North Central Avenue 21 St Floor Phoenix, Arizona 85012 Telephone Facsimile omlaw.com 602.640.9000 602.640.9050 September 16, 2015 Via E-Mail Stephen W. Tully Hinshaw & Culbertson LLP 2375 E. CamelbackRd., Ste. 750 Phoenix, AZ 85016 Re: State Board of Education Action at Special Meeting Dear Steve: I am writing about two of the actions that the State Board of Education took at its special meeting yesterday afternoon. Your colleague Randy Aoyama attended so you are probably already aware of the Board’s actions. First, as you know, the Superintendent has continued to disregard the Board’s policy requiring that the Board’s investigators have virtual access to the documents and files necessary to do their jobs. The Board approved a policy on this topic in May and set a deadline for the Superintendent to execute this policy. Unfortunately, the Superintendent failed to execute the policy of the Board. After the Superintendent’s lawsuit against the Board was dismissed, I reached out to you about this issue in letters dated July 17 and July 30 and received no response. At its August 24, 2015 meeting, the Board set a new deadline for the Superintendent to execute this Board policy. Again, the Superintendent failed to execute this Board policy. As a result, today, the Board authorized all necessary action, including litigation, to get the Superintendent to comply with this Board policy. If 1 don’t hear from you by noon Thursday, September 17, 2015 confirming that the Superintendent has executed the Board policy regarding the Investigators’ virtual access to the information they need to do their jobs, we will file a lawsuit on behalf of the State Board of Education to require that the Superintendent fulfill her statutory responsibility under A.R.S. § 15-251(5) to execute this policy of the Board. The Superintendent’s obligation to execute Board policies is not discretionary. Second, the Board adopted a policy regarding its website that the Superintendent must implement. As you may know, the Board has its own website at -www.azsbe.az.gov. Despite requests from Board staff, the Department maintains a separate page on its website for the Board, at www.azed.gov/state-board-education/. Board staff has requested that the Department eliminate its separate Board website and redirect the traffic for that site to the State Board’s website. The Department has disregarded these requests, despite the easy ability to redirect traffic to the current Board website. This has been an issue since May. Therefore, the Board adopted a policy recognizing that the State Board of Education’s website is at www.azsbe.az.gov and is an important means of communication with the public. It Stephen W. Tully September 16, 2015 Page 2 also directed that website that the State Board of Education maintains at www.azed.gov/stateboard-education/ be removed and internet traffic concerning the State Board of Education be redirected to the State Board’s website at www.azsbe.az.gov. The Board further directed the Superintendent to implement the portions of the policy concerning the State Board of Education by the close of business September 16, 2015. Because of the record of non-compliance with Board policies, the Board also authorized its attorneys to file a lawsuit to require the Superintendent to comply with this Board policy if she fails to do so by the implementation deadline set by the Board. Please advise me by noon September 17, 2015 if the Superintendent has executed this Board policy. If the Superintendent has not executed the Board’s policy in the timeframe provided by the Board, we will file the lawsuit that the Board has authorized. These Board actions reflect months of frustration with the Superintendent’s failure to work with the Board and its staff. Nobody wants litigation, but the Board cannot tolerate the Superintendent’s ongoing failure to execute Board policies as she is statutorily required to do. Please advise if the Superintendent has complied with the policies as described above. If you have any questions, let me know. Sincerely, Mary R. O’Grady MRO:pln 6296838 HINSHAW ATTORNEYS AT LAW & 2375 E. Camelback Rd. CULBERTSON LLP Suite 750 Phoenix, AZ 85016 Stephen W. Tully stully@hinshawlaw.com 602-631-4400 602-631-4404 (fax) www.hinshawlaw.com September 17, 2015 VIA EMAIL ONLY Mary R. O'Grady, Esq. Osborn Maledon, P.A. 2929 North Central Avenue 21st Floor Phoenix, AZ 85012 Re: Board's actions Dear Mary: This letter is sent in response to your letter of yesterday. It is disappointing that the State Board of Education seems fixated on usurping the powers of the Superintendent. In accordance with Arizona law, the Superintendent will not provide the investigators remote access to the Department's computer system. In addition, the Department of Education will continue to run its own wehsite. It is indisputable that the employees of the Board of Education are currently working illegally outside the direction of the Superintendent. The law is clear on this issue. Arizona law designates the Superintendent as the executive officer of the Board and requires the Superintendent to direct the work of all employees of the Board. A.R.S. § 15-231, A.R.S. § 15251(4). The power to direct the employees is not a power of the Board or any employee of the Board. The Superintendent is to direct the performance of executive, administrative or ministerial functions of the Department of Education or divisions or employees thereof. A.R.S. § 15-251(6). This mandate includes the Board's employees. The legislature requires that the Department of Education be conducted under the Superintendent's control - not the Board of Education's control. A.R.S. § 15-231(D). The Superintendent obviously cannot perform her legal obligation to oversee the Board's employees while they are operating completely outside her control, direction, and supervision. There is simply no legal support for the position that the Board's power to set education policy allows it to usurp the powers of the Superintendent by simply calling every desire of the Board a "policy." The access of employees of the Department of Education to the tools necessary to perform their functions is an administrative power squarely granted to the Superintendent. Calling the method of computer access a "policy," even multiple times, does not actually make it a policy. _______________________ Building on the Barger Tradition Arizona California Florida Illinois Indiana Massachusetts Minnesota Missouri New York Rhode Island Wisconsin ♦ London 23419377vl 0969524 Mary R. O'Grady September 17, 2015 Page 2 And to be clear, the investigators already have full access to all of the tools to perform their duties. They simply need to show up for work at the office designated for them by their boss, the Superintendent. They know they have the ability to access the system because they regularly return to the Department for short periods to perform their work. It appears that the Board also believes a lawsuit is necessary to force the Department of Education to redirect traffic from its website to the State Board of Education's new website. The Board apparently intends to argue that it has set a "policy" regarding websites that requires the Superintendent to do so. It is not clear when this directive was set by the Board. No law has been identified that permits the Board to dictate to the Superintendent what needs to be done to the Department of Education's website. As I understand it, Ms. Thompson admitted at yesterday's meeting that the Board has never voted to approve the creation of a separate website, so, if true, this "policy" was created without a valid vote of the Board. Moreover, as I believe has been previously raised, the creation of the Board's website is illegal - at least as to its implementation. The Arizona Constitution appoints the Superintendent of Public Instruction as secretary of the Board of Education. As secretary she is responsible for the official records of the Board. The Board's creation of written materials outside of the Superintendent's control is improper. Some protocols need to be put in place so that her oversight of the records of the Board is reestablished. On a separate but related issue, the Board is moving forward in its attempt to hire a replacement for Ms. Thompson and other departing employees. As has been pointed out, the Board can neither run the search, nor hire any employees on its own. As the executive officer of the Board, the Superintendent is responsible for hiring and, of course, she must recommend a candidate before one can be hired. ARS §15-203(5). As you must already appreciate, it does not comply with the law for the Board to set up an "interview committee" to make recommendations, even if the Superintendent is one of the several persons invited to participate. Once again, the Board's attempt to circumvent the law will merely cause more litigation. Also, anyone applying for the job will have to know that they will be named in a subsequent lawsuit and will possibly not be permitted to stay on the job. Moreover, the job description created by the Board is not legally accurate. The current job description describes the job of executive director to include duties specifically granted the Superintendent of Public Instruction by law and the Arizona constitution. It is both a waste of time and resources and unfair to potential applicants for the Board to proceed in this fashion. Given that the employees with which the Department of Education has had difficulty have now all resigned or set a date for their departure, it would both be legal and make more sense for the remaining Board employees to return to their positions with the Department and for the Superintendent to run a search for potential replacements for the departing employees. Of course, the job description(s) would first have to be amended to comply with the law. The Superintendent is happy to work with the Board to review candidates as any successful candidates that she recommends will need to be approved by the Board. As a final matter, the Superintendent filed a declaratory judgment action asking the Court declare the rights of the Superintendent and the Board. Among other things, that lawsuit to specifically asked the Court to determine whether the Board has the legal right to direct its 23419377vl 0969524 Mary R. O'Grady September 17, 2015 Page 3 employees to ignore the Superintendent and move out into separate offices. The Board argued that that was a political issue not subject to judicial determination. In fact, the Board argued that the Court could not determine if something was a policy "or something else" and claimed the Court should not rule on the issues as the Court would be perpetually asked to supervise the activities of the Board. Now, the Board proposes to file a suit asking the Court to determine whether something is a "policy" that is subject to enforcement by the Court or "something else". The Board cannot have it both ways. These are either political issues or they are not. The Superintendent understands that the Board is not satisfied with the current state of the law. The Majority of the Board members desire to have more power than that granted to them by statute or at least want the Superintendent to have less. Nonetheless the Board cannot ignore the law or demand that the Superintendent ignore her statutory duties. The Board's remedy if it does not like the law is to change it. The wilful flouting of the law is disturbing. Rather than waste more resources on lawsuits, both initiated or invited by the Board's improper actions, the Superintendent would suggest the Board comply with the current law, and spend its efforts, if it deems it productive, trying to change them. Very truly yours, HINSHAW & CULBERTSON LLP Stephen W. Tully 23419377V1 0969524 EXHIBIT 1 2 3 4 5 Law Offices IHNSHAW & CULBERTSON LLP 2375 East Camelback Road Suite 750 Phoenix, AZ 85016 602-631-4400 602-631-4404 Fax stullv@hinshawlaw.com i'aovama@hinshaw'hiw.com WAY IB ?015 DE%V Oit'flc A. Driver Deputy cierfr 6 Stephen W. TuUy (014076) Randy Aoyama (020096) 7 Attorneys for Plaintiff 8 IN TI-IE SUPERIOR COURT OF THE STATE OF ARIZONA 9 IN AND FOR THE COUNTY OF MARICOPA 10 Diane Douglas, in her official capacity as the Superintendent of Public Instruction lor the 11 State of Arizona, Plaintiff, 12 13 CV201 5-0061 71 VERIFIED COMPLAINT FOR SPECIAL ACTION AND DECLARATORY AND INJUNCTIVE RELIEF V. 14 Arizona State Board of Education, a body politic; Greg Miller in his official capacity as 15 President of the Arizona State Board of Education; and Christine Thompson in her 16 official capacity as executive director of the Arizona State Board of Education, 17 Defendant. 18 19 20 21 22 23 24 25 Plaintiff Diane Douglas ("Superintendent"), in her official capacity as Superintendent of Public Instruction and, pursuant to Rule 57 of the Arizona Rules of Civil Procedure and Rules 1 through 4 of the Arizona Rules of Procedure for Special Actions, requests that the Court order a speedy hearing of tliis action for declaratory judgment, and advance this matter expeditiously on the calendar. // // 26 233 82702VI 0969524 NATURE OF ACTION 1 2 1. This is an action for declaratory relief brought pursuant to the Uniform 3 Declaratory Judgment Act, Arizona Revised Statutes Section § 12-1831, et seq., to 4 prevent the usurpation of the powers of the Superintendent by the Arizona State Board of 5 Education ("Board"). 6 2. The Superintendent requests the Court to declare that she has the power and 7 right to terminate the employment of any and all department of education employees 8 working for the Arizona State Board of Education (the "Board"), subject only to any 9 applicable employment laws and regulations. 10 3. The Superintendent requests the Court to confinn that she is required to U direct the work of all employees of the department of education working for the Board, 12 and has the power to terminate any employees that refuse to follow her direction. 13 4. The Superintendent requests the Court to declare, the Board's action of April 14 27, 2015, authorizing the executive director of the Board to execute a lease for office 15 space to house the employees of the Board, as outside the Board's authority and therefore 16 illegal and void. 17 5. The Superintendent requests the Court to declare the Board's action of April 18 27, 2015, authori,zing the executive director of the Board to enter into Intergovernmental 19 Service Agreements for administrative services to permit the employees of the Board to 20 work outside the control of the Superintendent, as outside the Board's authority and 21 therefore illegal and void. 22 23 6. The Superintendent requests the Court to declare that the Board is empowered to prescribe the duties of its employees, but the Superintendent is solely 24 empowered to control and oversee the day-to-day activities of the Board employees, 25 including the location where they will work, the times of work, their reporting 26 requirements, on what matters they may work, and all other terms of their employment 2 23382702V1 0969524 1 that are necessary for the Superintendent to perform her duty to direct the Board 2 employees' work and to exercise her executive, administrative and ministerial duties over 3 those employees as prescribed by law. 4 7. The Superintendent requests the Court to declare that the employees of the 5 Board worlc for the department of education and report to the Superintendent. 6 8. The Superintendent requests the Court to declare that the Board's ability to 7 prescribe the duties of its employees does not permit it to grant them any of the duties 8 specifically granted to the superintendent of public instruction by statute and the Arizona 9 Constitution. 10 9. The Superintendent requests the Court enjoin the Board from managing its 11 employees directly and direct the employees of the Board to return to their offices at the 12 department of education, and that the Court make such further orders as may be 13 necessary to ensure compliance with the Court's declaration of the rights and duties of the 14 Parties herein. PARTIES 15 16 1.0., Plaintiff Diane Douglas is the superintendent of public instruction for the 17 State of Arizona. She brings this suit in her official capacity. 18 11, Defendant Arizona State Board of Education is a constitutionally created 19 public body under Article 11, Section 2 through 4, of the Arizona Constitution, and a 20 jural entity subject to suit pursuant to Arizona Revised Statutes Section 15-203(B)(2), 21 12. Defendant Greg Miller is the president of the Arizona State Board of 22 Education and is sued in his official capacity as he is taking actions on behalf of the 23 24 Board described herein. 13. Defendant Christine Thompson is the executive director of the Arizona 25 State Board of Education and is sued in her official capacity as she is taking actions on 26 behalf of the Board described herein. 3 233 82702V1 0969524 JURISDICTION AND VENUE 1 2 14. This Court has jurisdiction over actions seeking declaratory and injunctive 3 relief pursuant to Article 6, Section 14 of the Arizona Constitution, Arizona Revised 4 Statutes Sections 12-123, 12-1801, 12-1831, and Rules 57 and 65 of the Arizona Rules of 5 Civil Procedure. 6 15. This Court has jurisdiction over special actions against bodies, officers, and persons pursuant to Article 6, Section 18 of the Arizona Constitution and Rules 1 through 8 4 of the Arizona. Rules of Procedure for Special Actions. 9 16. Venue is proper in Maricopa County under Ariz. Rev. Stat. § 12-401 and 10 Arizona Rule of Procedure for Special Actions 4(b). II 17. The Superintendent is entitled to relief pursuant to Rule 3(b) of the Rules of 12 Procedure for Special Actions because Defendants have proceeded and threatens to 13 continue to proceed in excess of its legal authority by: 14 a. Usurping the powers of the office of the Superintendent; 15 b. Purporting to exercise, and taking actions reserved by law to, the office of the Superintendent; and 16 c. 17 employees, 18 NATURE OF THE CONTROVERSY 19 20 Refusing to acknowledge the Superintendent’s firing of the Board 18. On January 5, 2015, Diane Douglas was sworn into office as Arizona’s 21 superintendent of public instruction. 22 19. The superintendent of public instruction is the executive officer of the 23 Board and all the employees of the Board work under her direction. 24 20. Ill February, the executive director and the deputy director of the Boarc 25 refused to acknowledge that they reported to the Superintendent and her administration, 26 4 233!52702vl 0W)524 I and asserted that they reported directly to the Board. Accordingly, the Superintendent 2 exercised her powers and terminated their employment. 3 21. In response to those firings, the Board wrongly asserted that the 4 Superintendent did not have the power to terminate Board employees. After intervention 5 by the Department of Administration, the Superintendent and the Board sought resolution 6 of this dispute through legislation, but that legislation failed, 7 22. Unfortunately the relationship between the Board employees and the 8 Superintendent and her staff has not improved and the Board employees continue to 9 reflise direction from the Superintendent. 10 23. On April 27, 2015, the Board voted to authorize the executive director to 11 execute a lease for office space, with the purpose of removing the Board employees from 12 the control and direction of the Superintendent. The Superintendent voted "no". 13 24. On April 27, 2015, the Board voted to authorize the executive director to 14 negotiate and execute Intergovernmental Services Agreements for administrative seiwices 15 again with the. purpose of removing the Board employees, from the control and direction 16 of the Superintendent. The Superintendent voted "no". 17 On Saturday May 9, 2015, without the Superintendent’s approval, the 25. 18 executive director of the board of education, the deputy director, the executive assistant 19 to the executive and deputy director, the director of K-3 Reading Programs, and seven 20 investigators moved out of the offices assigned to them by the department of education 21 and moved to offices controlled by the State but located outside of the control of the 22 department of education. 23 26. All the departing Board employees ai-e classified as "at-will" employees 24 meaning their employment is subject to termination at the will of their employer with or 25 without cause. 26 5 23382702V-1 096952,.( I 27 The departing Board employees have been requested to return to their 2 offices at the department of education, but that request has been reflised. With Board 3 approval and assistance the departing Board employees are currently operating outside 4 the control and direction of the Superintendent and the department of education in 5 contravention of Arizona law. 6 28. The Superintendent is required by law to perform the duties of her office 7 and can be subject to criminal prosecution for malfeasance if she knowingly fails to 8 perform the duties of her office. Ariz. Rev. Stat. § 38-443. She is being prevented fi-om 9 performing her duties by the Board. 10 29. There is an actual and real controversy over the matters at issue in this 11 action that are subject to resolution by this Court. 12 RELEVANT ARIZONA CONSTITUTIONAL PROVISIONS AND STATUTES 13 The Arizona Constitution Declares That Control of Public Education in Arizona is a Shared Responsibility 14 15 16 17 18 19 20 21 22 23 24 30. The Superintendent is one of the five executive officers listed individually in the Arizona Constitution. Ariz. Const, art. 5, § 1. 31. The Superintendent's "powers and duties" are "as prescribed by law." Ariz. Const, art. 5, § 9. 32. The Constitution provides that "[t]he general conduct and supei*vision of the public school system shall be vested in a state board of education, a state superintendent of public instruction, county school superintendents, and such governing boards for the state institutions as. may be provided by law." Ariz. Const, art. 11, § 2. 33. The Constitution mandates that the Superintendent "shall be a member, and secretary, of the state board of education, and, ex-officio, a member of any other board having conti'ol of public instruction in any state institution." Ariz. Const, art. 11, § 4. 25 26 .6 233S2702V! 0969S24 34. The Constitution provides that the powers, duties, compensation and 2 expenses, and the terms of otfice, of the Board shall be such as may be prescribed by law. 3 Ariz, Const art 11, § 3. 4 5 6 7 8 9 10 11 12 13 14 15 The Superintendent of Public Instruction is the Head of the Department of Education and Executive Officer of the Board 35. Pursuant to the Arizona Constitution, the legislature has prescribed that the department of education shall be administered through both the state board of education and the Superintendent. The Board is by statute the policy determining body of the department of education. The superintendent of public instruction is the officer "in whom all executive, administrative and ministerial fimctious of the department are vested and who is the executive officer of the state board of education," Ariz. Rev. Stat. § 15­ 231 (B) (emphasis added); see also Ariz, Admin. Code § R7-2-1 01(A)(2) ("The State Superintendent of Public Instruction shall serve as the. . . . Executive Officer of the Board."). 36, Arizona Revised Statutes Section 15-231 (D) provides that "[t]he department shall be conducted under the control of the superintendent of public 16 instruction. (Emphasis added). 17 37. 18 Arizona Revised Statutes Section 15-251 sets forth the Superintendent's powers and duties," including that the Superintendent shall: 19 20 21 4. Direct the work of all employees of the board who shall be employees of the department of education. 5. Execute, under the direction of the state board of education, the policies which have been decided upon by the state board. 6. Direct the performance of executive, administrative or ministerial functions by the department of education or divisions or employees thereof. 22 23 24 25 (Emphasis added). 26 7 23382702VI 0969524 1 2 3 The Power of the Board is Limited to General Supervision, Proimilgation of Policy and Standards, and Certain Self-Governance 38. With respect to the Board, Arizona Revised Statutes Section 15-203 4 provides, in pertinent part, that the Board shall: 5 1, Exercise general supervision over and regulate the conduct of the public school system and adopt any rules and policies it deems necessary to accomplisn this purpose... . 4. Determine the policy and work undertaken by it. 5. Subject to title 41, chapter 4, article 4, employ staff on the recommendation of the superintendent of public instruction. 11 6. Prescribe the duties of its employees if not prescribed by statute. 12 7. Delegate to the superintendent of public instruction the execution of board policies and rules. 6 7 8 9 10 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (Emphasis added). 39. The system is not complicated. The Superintendent is the executive officer of the Board and department of education. The employees of the Board/department of education work for her just like the employees of corporations work for tlie Chief Executive Officer. Since the Board employees assist the Superintendent in her carrying out the execution of her administrative, executive and ministerial duties, the Board employees must be people the Superintendent can trust and direct. 40. Under Arizona law the superintendent recommends staff to the Board, which then makes the final hiring, decision. Thus, the hiring process assures that both the Superintendent and the Board are comfortable with the staff, thereby creating an environment conducive to the proper operation of the department of education. 41. Since the Board employees work under the direction and control of the Superintendent, once hired lier ability to fire is the same as any other employee. 8 233S2702vl 0969524 1 42. Arizona Revised Statutes Section 41-743(B)(3)(e) provides that the director 2 of administration must establish rules for, among other things, “[c]hanges to employment 3 status” of State employees. 4 43. These rules provide that “[ilf an agency head deems it necessary to 5 discipline an employee, the agency head may determine the level of discipline to be 6 imposed, up to and including dismissal. Ariz, Amin. Code R2-5A-801. 7 44. The Superintendent is the head of the Department of Education, Arizona 8 Revised Statutes Section 12-251, and may discipline employees of Department of 9 Education, which includes Board employees, Arizona Revised Statutes Section 1510 251(4), by, among other things, terminating them. II 45. The Board is a policy making entity, but it has now usurped the 12 Superintendent's role as the executive officer of the Board. The Board is directing its 13 employees and the Board's executive director is exercising the powers of the 14 Superintendent to act as the executive officer of the Board, These actions are patently 15 illegal and ultra vires. 16 46. Accordingly, the Superintendent, by this action requests the Court to 17 prevent this unlawful usurpation of the authority of her office and direct the Board and its 18 employees to conform their actions to the law. REQUESTED RELIEF 19 20 WHEREFORE, the Superintendent respectfully requests this Court: 21 A. Take jurisdiction and adjudicate the rights of the parties; 22 B. Declare that the Superintendent has the right and power to terminate 23 employees of the Arizona department of education assigned to the Arizona State Board 24 of Education; 25 c. Declare that Superintendent has the sole right and power to direct the work 26. of all employees of the Arizona State Board of Education; 9 23382702V1 0909524 1 D. Declare the Board's action of April 27,. 2015, authorizing the executive 2 director of the Board to execute a lease for office space to house the employees of the 3 Board, as outside the Board's authority and therefore illegal and void; 4 E. Declare the Board's action of April 27, 2015, authorizing the Executive 5 Director of the Board to enter into Intergovernmental Service Agreements for 6 administrative services to permit the employees of the Board to work outside the control 7 of the Superintendent, as outside the Board's authority and therefore illegal and void; 8 F. Declare that the Board has the power to declare its employees' duties, but 9 that the Superintendent has the sole power to control when and how they perform those 10 duties. 11 G. Declare that the Board's ability to prescribe the duties of its employees 12 does not permit it to grant its employees the duties specifically granted the 13 superintendent of public instruction. 14 H. Order the Board employees to report to the Superintendent and direct the 15 Board members to run all contact with the Board employees through the Superintendent 16 unless otherwise authorized by her; 17 I. Enjoin the Board from directly managing its employees and direct the 18 Board employees to return to their offices at the department of education; and 19 .T. Make such further orders as may be necessary to ensure compliance with 20 the Court's declaration of the rights and duties of the Parties herein. 21 22 DATED this 15‘” day of May, 2015, // ./ 23 HINSHAW&0_„.BBRTSON LLP 24 By.: Steplien Tully Randy Aoyama Attorneys for Plaintiff 25 26 10 23382702vl 0969524 1 VERIFICATION 2 I, Diane Douglas, the Arizona Superintendent for Public Instruction, declare under penalty of perjury under tlie laws of the United States of America and the State of 3 Arizona, pursuant to Rule 80(i) of the Arizona Rules of Civil Procedure, that the 4 foregoing is true and correct: 5 That I have read the foregoing Verified Complaint for Special Action and 6 Declaratory Relief and Injimctive Relief, and know the contents thereof, and that the Verified Complaint is true of my own Icnowledge, except the matters stated in the 7 Verified Complaint on information and belief and as to those matters, I believe the Verified Complaint to be true. 8 9 DATED this 15"* day of May, 2015. 10 / 11 Diane Douglas ^ Superintendent of Public Instruction 12 I 13 14 15 16 17 18 19 20 21 22 23 24 25 26 11 233R2702vl 0969524 EXHIBIT Michael K. Jeanes, Clerk of Court *** Filed SUPERIOR COURT OF ARIZONA MARICOPA COUNTY 07/13/2015 CV 2015-006171 CLERK OF THE COURT L. Stogsdill Deputy 15 HONORABLE PATRICIA ANN STARR DIANE DOUGLAS STEPHEN W TULLY V. ARIZONA STATE BOARD OF EDUCATION, et JOSEPH N ROTH al. COLIN F CAMPBELL UNDER ADVISEMENT RULING The Court has considered the Motion to Dismiss filed on June 1, 2015 hy Defendants Arizona State Board of Education (“the Board”), Greg Miller (“Miller”), and Christine Thompson (“Thompson) (collectively “the Defendants”), the Amended Response filed on June 12, 2015 by Plaintiff Diane Douglas (“the Superintendenf’), and Defendants’ Reply, filed June 18, 2015. The Court has also considered the argument of the parties and the applicable law. Factual and Procedural Background On May 15, 2015, the Superintendent filed her Complaint for Special Action and Declaratory and Injunctive Relief. In her Complaint, the Superintendent asks the Court to declare that “the Superintendent has the right and power to terminate employees of the Arizona department of education assigned to the Arizona State Board of Education,” as well as “the sole right and power to direct the work” of all of the Board’s employees. Docket Code 926 Form VOOOA Page 1 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY 07/13/2015 CV 2015-006171 The Superintendent also seeks a declaration that the Board’s actions on April 27, 2015, authorizing the executive director of the Board to execute a lease for office space to house the employees of the Board,” and “authorizing the Executive Director of the Board to enter into Intergovernmental Service Agreements for administrative services to permit the employees of the Board to work outside the control of the Superintendent,” are outside of the Board’s authority, and thus “illegal and void.” Additionally, the Superintendent asks the court to declare that while “the Board has the power to declare its employees’ duties,” only the Superintendent has the power to control the performance of those duties, and that “the Board’s ability to prescribe the duties of its employees does not include the authority to grant those employees the duties specifically granted to the Superintendent.” Finally, the Superintendent asks the Court to order Board employees to report to the Superintendent, order Board members to “run all contact with the Board employees through the Superintendent,” prohibit the Board from directly managing its employees and direct Board employees to “return to their offices at the department of education.. .” (Complaint at 9-10). Defendants seek dismissal of the Complaint pursuant to Rule 12(b)(1), Ariz. R. Civ. P. (lack of jurisdiction over the subject matter) and (6) (failure to state a claim upon which relief can be granted). Relevant Constitutional and Statutory Provisions The Arizona Constitution provides that the State Board of Education is composed of the Superintendent of Public Instruction and ten other members appointed by the Governor with the consent of the Senate. Ariz. Const. Art. 11 § 3. The Superintendent is a member and secretary of Board, and “[her] powers and duties shall be prescribed by law.” Ariz. Const. Art. 11 § 4. The Board’s enumerated powers and duties include employing staff on the recommendation of the Superintendent, prescribing the duties of its employees, and delegating to the Superintendent the execution of board policies and rules. A.R.S. § 15-203(A)(5-7). The Superintendent’s powers and duties include directing the work of all employees of the Board and directing the performance of executive, administrative or ministerial functions by the Department of Education, or divisions or employee of that department. A.R.S. § 15-251 (4), (6). The Superintendent is required to “[ejxecute, under the direction of the state board of education, the policies which have been decided upon by the state board.” A.R.S. § 15-251(5). Docket Code 926 Form VOOOA Page 2 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY 07/13/2015 CV 2015-006171 A.R.S. § 15-231 establishes the Department of Education, and provides that the department shall be administered through “[t]he state board of education which shall be the policy determining body of the department,” A.R.S. § 15-231(B)(1), and “[t]he superintendent of public instruction in whom all executive, administrative and ministerial functions of the department are vested and who is the executive officer of the state board of education.” A.R.S. § 15-231(B)(2). Further, “[t]he department shall be conducted under the control of the superintendent of public instruction. A.R.S. § 15-231(D). Jurisdiction over the Subject Matter Defendants argue that the questions presented by the Superintendent’s Complaint are nonjusticiable political questions, and that the Superintendent is seeking advisory opinions regarding the scope of her power, based on facts which may or may not arise in the future. A controversy is nonjusticiable — i.e., involves a political question — where there is a ‘textually demonstrable constitutional commitment of the issue to a coordinate political 555 department; or a lack of judicially discoverable and manageable standards for resolving it. Kromko v. Arizona Board ofRegents, 216 Ariz. 190, 192, ^ 11, 165 P .3d 168, 170 (2007), quoting Nixon v. United States, 506 U.S. 224, 228 (1993). The political question doctrine arises from the principle of separation of powers; a principle that is “explicitly and firmly expressed” in Arizona. Id. at 192-193, If 12, 165 P.3d at 170-171, quoting Mecham v. Gordon, 156 Ariz. 297, 300, 751 P.2d 957, 960(1988). Hi Although the test articulated in Kromko is framed in the disjunctive, the two aspects of the tests are interdependent: A conclusion that there is a textually demonstrable commitment to a coordinate branch is strengthened when the Constitution does not provide judicially manageable standards for review. . . . Conversely, the significance of textually demonstrable commitment to another branch is weakened when the constitution expressly provides discernible and manageable standards for judicial review. Arizona Independent Redistricting Commission v. Brewer, 229 Ariz. 347, 351,118, 275 P.3d 1267, 1271 (2012) (internal citations omitted). Here, the Court finds that the determination of policy is entrusted to the Board (of which the Superintendent is a voting member). The Court is not in the position to second-guess the Board’s decision regarding allocation of resources and funds in relation to leases and interagency agreements. The Board’s discretion over policy-making regarding the best use of resources is a political question not appropriate for judicial resolution. Moreover, the broad range of relief Page 3 Form VOOOA Docket Code 926 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY 07/13/2015 CV 2015-006171 requested by the Superintendent would require the Court to engage in recurring supervision of the activities of the Board. A court should not consider a case seeking a declaratory judgment that is advisory, or answers moot or abstract questions. Thomas v. City of Phoenix, 171 Ariz. 69, 74, 828 P.2d 1210, 1215 (App. 1992). Any declaratory judgment must be based on more than a theoretical controversy; it must be based “on an existing state of facts, not those which may or may not arise in the future,. ..” and “will not be entered as to future right in anticipation of an event which Klein V. Ronstadt, 149 Ariz. 123, 124, 716 P.2d 1060, 1061 (App. 1986). may never happen. See also Huntv. Richardson, 216 Ariz. 114, 125, ff 37-38, 163 P.3d 1064, 1075 (App. 2007) (Declaratory relief is inappropriate to resolve future or theoretical rights). As to the power to fire employees, at present, there is no concrete justiciable issue presented to the Court. An order from the Court declaring that the Superintendent has the “right and power to terminate employees” would not adjudicate a claim upon present existing facts which have ripened for judicial determination. Thus, such an order would be inappropriate. The remainder of the relief sought by the Superintendent is similarly abstract, and calls for an advisory opinion only. Failure to State a Claim Upon Which Relief Can be Granted Defendants also argue that the Complaint does not state a claim upon which relief can be granted. Specifically, Defendants argue that the Board’s April 27 votes to enter into contracts and move offices were lawful, and that the Superintendent lacks the authority to fire Board employees. Motions to dismiss for failure to state a claim are disfavored, and should be granted only when it appears certain that the non-movant would not be entitled to relief under any state of the facts susceptible to proof. Fid. Sec. Life Ins. Co. v. State Dep’t ofIns., 191 Ariz. 222, 224, ^ 4, 954 P.2d 580, 582 (1998). In considering such a motion, the Court must assume all the material allegations of the complaint to be true. Turley v. Ethington, 213 Ariz. 640, 642, Tf 2, 146 P.3d 1282, 1284 (App. 2006). However, the court is not required to accept the truth of legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Docket Code 926 Form VOOOA Page 4 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY 07/13/2015 CV 2015-006171 The statutes cited above establish that the Board sets policy, while the Superintendent executes those policies. And while the Superintendent has control over the Department of Education, she does not have control over the Board. The decision to enter into an intergovernmental agreement is a fundamental governmental policy. Myers v. City ofTempe, 212 Ariz. 128, 130, f 10, 128 P.3d 751, 753 (2006). And Arizona law specifically provides that the Board may enter into contracts. A.R.S. § 15-203(B)(1). The statutory scheme also establishes that the power to fire Board employees lies with the Board. A.R.S. § 15-203(A)(5) specifically provides that the Board “employ staff on the recommendation of the superintendent of public instruction.” “[A]bsent a ‘specific provision to 5 55 the contrary, the power of removal from office is incident to the power of appointment. Carlucci v. Doe, 488 U.S. 93, 95 (1988), quoting v. United States, 111 U.S. 290, 293 (1900). See also Underwood v. Waddell, 743 F.Supp. 1291, 1298 (S.D. Ind. 1990) (general rule is that the power to hire necessarily and implicitly carries with it the power to fire); Ariz. Op. Atf y Gen. No. 185-013 (Board’s power of appointment extends to power to dismiss employees); Ariz. Admin. Code R2-5A-801 (uncovered employee serves at pleasure of the appointing authority). Therefore, even if the Superintendent’s Complaint presented a justiciable, ripe controversy, it fails to state a claim upon which relief can be granted. For the foregoing reasons, IT IS ORDERED granting Defendants’ Motion to Dismiss. Defendants are directed to file a proposed form of order within twenty (20) days of this order. Docket Code 926 Form VOOOA Page 5 EXHIBIT Michael K Jeanes, Clerk of Cov rt Electronically Filed S. Bagnall, Deputy 9/10/2015 3:03:00 PM Filing ID 6857729 . .1 1 2 3 4 5 received Law Offices HINSHAW & CULBERTSON LLP 2375 E. Camelback Rd. Suite 750 Phoenix, AZ 85016 602-631-4400 602-631-4404 StullY@hinshawlaw. com rao vama@hinshawlaw. com I SEP 1S 2015 OSBORN MALEDON PA 6 Stephen W. Tully (014076) Randy J. Aoyama (020096) 7 Attorneys for Plaintiff 8 IN THE ARIZONA SUPERIOR COURT 9 MARICOPA COUNTY 10 Diane Douglas, in her official capacity as the Superintendent of Public Instruction for the 11 State of Arizona, Plaintiff, 12 13 i No. CV2015-006171 NOTICE OF APPEAL (Assigned to the Hon. Patricia Starr) V. 14 Arizona State Board of Education; Greg Miller, in his official capacity as President of 15 the Arizona State Board of Education; and Christine Thompson, in her official capacity 16 as Executive Director of the Arizona State Board of Education, 17 Defendants. 18 19 NOTICE IS HEREBY GIVEN that Plaintiff Diane Douglas, in her official 20 capacity as the Superintendent of Public Instruction for the State of Arizona, appeals to I 21 the Court of Appeals, Division One, from the Judgment entered on September 9, 2015, 22 the Court’s order of September 9,2015, and the Court's order of July 13, 2015. 23 I DATED this 10^ day of September, 2015. 24 HINSHAW & CULBERTSON LLP 25 Bv: /s/ Stephen W. Tullv________ Stephen W. Tully Attorneys for Plaintiff 26 23413654vl 0969524 i I 1 2 3 ORIGEVAL of the foregoing efiled this 10“ day of September, 2015 i I COPY of the foregoing mailed this lO'^ day of September, 2015, to; I Colin F. Campbell, Esq. Mary R. O'Grady, Esq. 5 Joseph N. Roth, Esq. Osborn maledon, P.A. 6 2929 North Central Avenue, 21 Floor Phoenix, AZ 85012 7 Attorneys for Defendants 4 8 Rv: /s/Trish Hoffiaiann 9 10 11 12 j 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 23413654vl0969524