Congress, Ariz. school district sues taxpayers to stop questions

The Goldwater Institute Watchdog Report is a periodic publication intended to identify government corruption and waste and to hold politicians and public agencies accountable to taxpayers.

A handful of taxpayers in a small community north of Wickenburg, Arizona are being targeted by the local school district in a lawsuit that asks a judge to declare they have no right to request public
records, sue the district, or complain to outside agencies.

The Congress Elementary School District claims that past efforts by these
residents to obtain documents such as minutes of board meetings and
spending reports amount to harassment that should not have to be
tolerated.

But Jean Warren, one of the four defendants named in the lawsuit filed January 28, 2010 [2], said the complaint is an illegal attempt to silence citizens who have
questioned the district’s policies and spending practices.

“The whole thing is based on trying to shut us down so that nobody has any rights,” Warren said. “Just because you live in a small area does not mean you don’t have rights. Everything I believe about the
Constitution and what it means to be a citizen of the USA is being shot
down.”

The school district has a history of violating state laws mandating government transparency, according to investigations
dating to 2002 done by the Arizona attorney general and state
ombudsman. In 2002 and again in 2007, the district was found to be in
violation of the state’s open meeting law by the Attorney General’s
Office. In June 2009, the state ombudsman’s office admonished the
district for its slow response to public records requests.

Liz Hill, the assistant state ombudsman for public access, told the Goldwater Institute she is not aware of any other instance in which a government agency has filed a court action seeking to block citizens
from even requesting public records that should otherwise be available.
It is something that frustrated government officials have talked about,
but to her knowledge none has ever followed through, said Hill, who did
not want to comment on whether the district’s lawsuit is justified.

“There’s a lot of talk about entities going and getting injunctions or other kinds of protective orders not to have to respond to certain individuals or certain requests,” Hill said. “But I haven’t actually
been aware of any specific case, just more the theory of it. This is
the first time I’ve actually seen someone go and attempt to do it.”

Using courts to turn away requests

The district’s lawsuit acknowledges the documents that have been requested are not privileged or confidential, which means they are public records
that normally should be disclosed. For the most part, the records
sought were agendas and minutes of governing board meetings, spending
reports, and records related to the defendants’ own children.

However, the district’s lawyer, Franklin Hoover, argues the repeated public records demands and requests for investigation filed with outside agencies are a costly nuisance and the district should not be
forced to respond.

“Defendants have abused both the public records request and the administrative complaint system in order to
harass the Plaintiff,” Hoover wrote in court motions. “Defendants’
requests and complaints were unduly burdensome due to the sheer volume
of the records requiring preparation by the Plaintiff in response.”

The lawsuit asks a Yavapai County Superior Court judge to block Warren, Cyndi Regis, Barbara Rejon and Jennifer Hoge from filing any more public records requests. The district also wants a ruling that it
does not have to comply with previous requests for public records, and
an order restricting the right of Warren and others to file a lawsuit
or complain to any outside agency, including the ombudsman and the
attorney general.

All of the defendants are being represented by the Goldwater Institute Scharf-Norton Center for Constitutional Litigation, which learned of the complaint shortly after it was filed.

Carrie Ann Sitren, a Goldwater Institute attorney, said the lawsuit is a clear attempt to silence people in the community who have been critical of the board’s actions, and have made good-faith attempts to
ensure the district is spending taxpayer money wisely. The district’s
actions go beyond violating government transparency laws; they amount
to an affront on the First Amendment rights of citizens to free speech
and to petition their government, Sitren said.

“In this case, the citizens in this community were exercising their rights,” Sitren said. “The board’s response was to try to threaten them into shutting up, and that is not what our system of government is
supposed to be allowed to do.

“There is a good-faith intent by each of these people and in all of their actions to make the school better, to make it more efficient and to make the education of their children better. They never asked for a
single document they didn’t have good reason to ask for. Under the law
you don’t even need a good reason. These people had great reasons every
time.”

Beyond defending the claim, Sitren said she will do whatever is necessary to ensure the district follows the state's public records law in the future.

“They’re obviously not following the law on their own,” she said.

School district officials refused to comment for this story, citing the Goldwater Institute’s decision to represent the defendants.

New school comes to Congress

Warren said she resents the suggestion that she is trying to harm the elementary school or harass district officials. She was an early supporter of building an elementary school in Congress. Before the
school was built in 2001, students were bused to nearby Wickenburg.

Warren said she always has felt obliged to monitor how the district spends its money. Her involvement in the district’s business became more personal in September 2001, when her daughter, Jennifer Hoge,
moved to the district from Glendale.

Hoge became dissatisfied with her son’s education plan by December 2002 and filed a complaint against the district that was later sustained by the Arizona Department of Education. Though she is named
as a defendant in the lawsuit, Hoge has not lived in the district or
filed any requests for documents in more than six years. The only
documents Hoge requested from the district were records related to her
son, which she is entitled to see under federal and state laws.

Warren said the run-in with the school superintendent over her grandson’s education plan made her skeptical of how the district was spending taxpayer money. In 2002, she began requesting copies of board
minutes and agendas dating back to 2000, according to the lawsuit. By
the district’s own reckoning, Warren filed four public records requests
between June 21, 2002, and February 2003. In every case, the documents
sought dealt with agendas and minutes, the most basic public records
which all government agencies are required by law to make available.

The district was not properly posting governing board agendas or making minutes available to the public, as required by the state’s open meetings law, Warren said. That assertion was supported by an
investigation conducted by the state Attorney General’s Office in 2002
that was triggered in part by complaints Warren filed.

In a letter of concern [3] issued Dec. 30, 2002, assistant attorney general Lisa Neuville says
school officials broke the law by posting agendas that were vague and
hard to find, by illegally using closed-door executive sessions to
discuss public business, and by scheduling special meetings in an
apparent attempt to make attendance inconvenient to the public.

The board also failed to keep appropriate meeting minutes, even on critical issues such as budgets and teacher hiring, the letter concluded.

Challenging the dress code

Warren backed off of her battles with the district in mid-2003, after her grandson left the school. But controversy flared again in 2007, and so did new demands for public records from Warren and other
residents.

School officials were looking to impose a dress code, which many parents in the district opposed. Among them was Barbara Rejon, who at the time had
a third-grade daughter attending the school.

Rejon was appointed to a committee to study the issue in March 2007. She was told that a survey of parents showed overwhelming support, but was skeptical of the
results. Rejon filed a public records request to see the original
survey cards returned to the district.

“I’ve never to this day been allowed to see them,” Rejon said.

The district board adopted the uniform dress code in June 2007.

Other records that Rejon sought had to do with her adopted daughter. Rejon learned in late 2007 that her daughter was seeing a counselor at school. When school officials refused to turn over information about
those sessions, Rejon requested documents seeking the name of the
counselor so she could contact him.

Rejon’s original request was dated Nov. 9, 2007. It took her 16 months and two subsequent written requests before she was notified by the district who the counselor was and how he could be contacted.

Cyndi Regis fought a similar battle with the school over records related to her son. And like Rejon, Regis’ troubles began when she voiced opposition to the policy
requiring school uniforms.

During a school board meeting on August 8, 2007, Regis tried to ask the board to reconsider the policy. But after she got out a single sentence, she was cut off by board President Jim Thompson, who refused
to allow her to continue speaking, Regis said. Her account was
confirmed in a subsequent investigation by the Attorney General’s
Office.

Regis and other parents complained to the attorney general about the board’s tactics in late 2007. Aside from cutting Regis off, the board improperly held about 45 minutes of policy discussions with a group of
parents after its regular September 2007 meeting ended, according to
the complaints.

State investigators concluded the board did not violate the open meetings law by refusing to allow Regis to speak, since the law does allow the government body to impose restrictions or not allow public
comments at all.

But assistant attorney general Robert Sorce cautioned in a Dec. 12, 2007, letter to Thompson [4] that Regis’ First Amendment speech rights may have been violated, “an issue beyond the scope of our investigation.”

As for the 45 minutes of discussion after the September board meeting ended, Sorce concluded that was a violation of the open meeting law.

Sorce noted in his letter to the board that the district had been found in violation of the open meeting law in 2002.

“The Board should have had a heightened awareness of its obligation to comply with the Open Meeting Law and avoided engaging in conduct that could be construed as an Open Meeting Law violation,” he wrote.

To settle the complaints, the district entered into a consent agreement with the Attorney General’s Office, agreeing to take additional training on the law and to hold a community discussion about
the violation at its next regularly scheduled meeting.

Despite being admonished by the Attorney General’s Office twice in a five-year period, the district’s response to public records requests did not improve, according to Warren and her co-defendants.

Records remain hidden

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