State finds repeated violations of government transparency laws

Goldwater Institute Watchdog Report | March 10, 2010
By Mark Flatten

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, 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 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 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

For Regis and Rejon, most of the requests filed with the district have been for their children’s records, which must be disclosed to parents under provisions separate from the public records law. Both said in an interview with the Goldwater Institute they made several requests for the same information because the district repeatedly refused to release records, claimed that the requests were not specific enough, or turned over incomplete files.

Both parents have also tried to get budget information and documents related to school performance with little success.

“I already have lost my parental rights at this school,” Regis said. “I have to put him in a uniform that I totally disagree with. Now they are telling me I can’t say anything about the budget. I can’t even go in and request my son’s records. I can’t get into that school. I don’t know what they are doing to him.”

Warren has intensified her efforts to track spending at the school, and makes no apologies about it. Two items of particular interest have been the air conditioning units and computers.

The 24 air conditioning units were new when the school was built in 2001. By early 2009, the district had already implemented a program to replace them, according to board minutes.

Warren maintains the units were not installed properly, and that they should last much longer than eight years. Dean Gray, executive director of the Arizona School Facilities Board, which pays to construct new schools, said air conditioning units should last at least 12 to 15 years.

As to the computers, Warren said that in 2008, the district started selling computers it had purchased only a year before for about 10 percent of the original purchase price.

In November 2008, Warren asked for district records on both the air conditioning units and computers. Throughout 2009, she filed multiple requests seeking similar records. The most recent request was filed January 13, about two weeks before the lawsuit was filed.

For more than a year, the response from district officials was that the records were not available or did not exist.

In about April 2009, Warren, Regis and Rejon filed complaints with the state ombudsman’s office, listing their long-simmering complaints and alleging the district was breaking the state’s public records law.

State Ombudsman Patrick Shannahan concluded in a letter dated June 29, 2009 that the district ultimately did produce requested documents. But he criticized school officials for their slow and incomplete responses. Shannahan noted it took a year and four months for Rejon to get counseling records maintained on her own child. He also noted it took the district a year to produce the records Regis requested about her son in 2008.

Documents requested by Warren in November 2008 were ultimately produced by the district six months after school officials claimed no such records existed, Shannahan said in his letter.

“We are concerned that the District staff does not fully understand its responsibilities and obligations under Arizona’s Public Records Law,” Shannahan wrote in his letter of concern, which also recommended district administrators take a training class on public records.

Parents take action

Though Warren said her battle to get public records from the district is still ongoing, she and others have had some success. Last year, the district began posting agendas and meeting minutes online, something Liz Hill of the ombudsman’s office said she has long encouraged.

As for the lawsuit filed by the district, Warren, Regis and Rejon said they would have tried to fight the legal battle on their own if the Goldwater Institute had not taken the case.

All three said they are reluctant to go onto school property because they fear district officials might try to have them arrested for trespassing.

“Just because you live in a small area does not mean you don’t have rights,” Warren said. “I live in a small community. I’m paying taxes and I have no rights? I don’t think that’s right. And I think that parents with children in that school should have even more rights than I do. They should be able to go in there, see their children and make sure their children are okay.”

Mark Flatten is an investigative reporter for the Goldwater Institute.

The Goldwater Institute is an independent government watchdog supported by people who are committed to expanding free enterprise and liberty.