KGUN9 On Your Side, Tucson News, Weather & SportsDouglas Stonewalling Day 129: Lawyer mystery revealed
Who's been pulling the strings in the still-secret Pettit investigation? Now we know. And the answer is no surprise.
One of the enduring mysteries in the Douglas School District's investigation of superintendent Earl Pettit has been: who put deputy civil Cochise County Attorney Anne Carl in charge, and by whose authority? KGUN9 has just obtained documents providing the answer. The winner is: school board president Chuck Hoyack. The documents paint a picture of turmoil and confusion as both Pettit and Hoyack hired and assigned attorneys, sometimes at cross purposes, and all at taxpayer expense.
When the board approved the Pettit investigation on September 21st, it authorized board member Susan Kramer to recruit the investigator. But records show that both Hoyack and Carl inserted themselves into the process from the start. Carl sent Kramer a list of candidates the day after the vote. The next morning, Hoyack sent Kramer an e-mail jogging her elbow, asking her how things were coming. But invoices obtained by KGUN9 show that after Kramer hired investigator Patrick Cooper, she was frozen out. Cooper began reporting directly to Carl. When KGUN9 questioned Carl about that, she pointed out that the September 21st vote only authorized Kramer to hire the investigator, not to be involved in the investigation. True enough, but nor did the board vote authorize Carl to be involved either. KGUN9 then asked Carl to elaborate and explain precisely who assigned her to the Cooper investigation, but Carl simply ignored the questions. New documents just obtained by KGUN9 show that Carl points to Chuck Hoyack as the source of her authorization, even though the board had not given its specific approval for him to involve her.
The issue is important because it relates to the question of whether the board has been systematically violating the state's open meeting law, and whether Hoyack has been abusing his power as Pettit claims in his federal lawsuit. In theory, under state law no one on the board, the president included, has any direct power. Nothing happens unless the board meets and votes to make it happen. But the board is allowed to delegate certain powers. Under District policy B-1250, the board may hire outside counsel, and the board president may confer with outside counsel thus hired. But the policy is quite specific about who is supposed to direct the activities of lawyers: "Only the Superintendent may contact private counsel by telephone or in person regarding matters pertaining to the day-to-day operation of the District." A strict reading of this policy would suggest that only the superintendent can assign lawyers and order them around, and that the board president's powers are limited to hearing advice from lawyers thus engaged.
But that is not the way it has worked out. Invoices obtained by KGUN9 show that Hoyack has had a free reign in arranging his own legal work, usually with Anne Carl. This has caused confusion among the District's administrative staff as so who is representing who and for what purpose. On some instances Pettit has challenged Carl's involvement in particular. Carl is actually employed not by the District, but by the Cochise County Attorney's Office, an agency funded by tax dollars. That office has a longstanding relationship with the District. But when Carl gets a work assignment from the District, she charges the District by the hour, thereby dinging taxpayers twice. This is further complicated by the fact that the District has taken out a pre-paid legal services contract with a firm known as the Arizona School Risk Retention Trust. The Trust has a list of nearly a hundred lawyers from several firms, including Carl, available to work on any given issue at any given time, usually in consultation with the superintendent. Pettit and HR director Mary Good have assigned most of the legal work. But Hoyack has been ordering up services, too. Who's in charge? No one. And what happens when the superintendent and board president go to war with one another?
An incident in March shows the resulting chaos. Pettit asked The Trust to assign a lawyer to handle the English Language Development crisis at Stevenson Elementary, and specifically requested an attorney who did not have a past history with the District. The Trust gave him a name. Pettit engaged the attorney. But then Pettit learned that a lawyer from the Cochise County Attorney's Office was suddenly assuming control. He sent a memo to the Trust objecting, writing: "... Now it appears that Candyce Pardee has taken over the case because the President of the Board has been working with her unknown to me. So, who really is the attorney to assist us with the ELD implementation issues?" If Pettit got a reply, it was not provided to KGUN9. The upshot of it was that both attorneys spent billable hours working independently on esssentially the same issue. Not long afterwards, Hoyack helped engineer Pettit's first "reassignment to home," effectively blocking Pettit's ELD investigation. Which raises a question: if the superintendent and administrative team have assigned one attorney, but a different attorney is working for the board president -- which one of those two attorneys is representing the interests of Douglas Unified School District as a whole?
By December that question and the surrounding confusion had grown more pronounced, and the dispute more bitter. Pettit wrote another letter to the Trust, this time objecting angrily to Carl's involvement. He states that Carl had written a letter making a false statement about him in a letter to the board. He writes, "Ms. Carl makes the claim that she is the attorney for a special action of termination proceeding even though the initiator of the action, the Governing Board, never approved her to be used and, in fact, stated in public meetings how such investigation must be conducted by a person outside of Cochise County. All of her statements are untrue." He accuses Carl of assigning cases to herself: "There are several instances where Ms. Carl has injected herself into matters when not requested.... Most recently, Ms. Carl has diverted an investigative report to herself, prepared by the District's retained outside investigator. It appears to me that Ms. Carl has a substantial conflict of interest and may be part of a concerted effort and even a conspiracy to have me and other employees and Board members removed." Interestingly, Pettit suggests that Carl may be countermanding advice from the District's other attorneys. He points out that Carl has given advice to the board on handling public records requests, but that several of those requests have gone unfulfilled, "all from three Board Members who have received advice from Mangum Wall Stoops & Warden to comply with the requests." (He is referring to attorneys Michelle Parker and Kellie Peterson, who have promised KGUN9 they are working to obtain those records, but whose efforts thus far appear to have simply bounced off of board members Lopez and Rivera.) Pettit goes on to request a different attorney who can represent the interests of the District as a whole, instead of the interests of a single board member.
Without a doubt, Pettit had the authority under board policy to pick up the phone or hit the keyboard and give orders to the The Trust for new or different legal assistance. Even so, it took John Flanders of the Trust nearly a month to respond. When he did, he dismissed Pettit's concerns, writing, "Ms. Carl assured me that all service requests were made by an authorized user of the program, primarily board president Chuck Hoyack." He also makes the point that until recently, Trust records indicated the Cochise County Attorney as the District's "Primary Legal Provider." (Pettit has said that his June selection of a different attorney, which he gave his secretary to fax, never made it to the Trust, and was not re-sent until mid-December). Flanders then dismisses Pettit's December selection of a different primary legal provider, stating that the program "does not limit the number of attorneys" who can serve as primary counsel (a statement flatly contradicted by Trust documents, which specify a single choice). Flanders then states, "I am not sure I understand the nature of your request for 'Special Legal Counsel,'" and he asks for more information. Too late. The board relieved Pettit of his duties about two hours later.
Rightly or wrongly, Carl has been a major player in efforts to keep the public in the dark about the Pettit investigation. Invoices 9 On Your Side has obtained show Carl has advised the board frequently on public records and open meeting issues. Her communications with KGUN9 have not always radiated the warm glow of a good-faith, cooperative effort to follow the letter and spirit of Arizona law in support of open government. For instance, as we've reported, last week Carl tried to intercept and thereby delay or possibly block a public records request from 9 On Your Side that the District's custodian of records had already fulfilled. Also as we've reported, when KGUN9 filed a public records request with Carl on December 10th asking for the Cooper materials, Carl rejected it with a blanket assertion of attorney-client privilege. Since this privilege can't possibly cover a public document, we objected in detail. She eventually responded with an invitation to set forth a formal legal argument. When we did so -- at no small legal expense -- she then flip-flopped and said she had never meant to imply the privilege might protect the Cooper report after it had been presented to the board and properly redacted. And she blamed KGUN9 for failing to clearly communicate what it was we are seeking. But later that same day, the District finalized and posted an agenda calling for the board to consider waiving that very privilege. How did a privilege that Carl had just disavowed as a miscommunication get on the board's action agenda? Why did the board feel it had to go to the trouble of discussing a privilege that didn't exist? And why did KGUN9 have to go to such considerable time and expense arguing against a non-existent privilege?
Invoices obtained by KGUN9 show Carl frequently advises the board on agenda issues -- up to and including the question of how detailed the agenda postings must be. State law requires all agenda items to be posted 24 hours in advance. The state attorney general's public service handbook advises, "The notices must contain such information as is reasonably necessary to inform the public of the matters to be discussed or decided." It's an open question as to whether recent Douglas agenda items have met that test. The December 22nd vote to keep the Cooper report confidential was not on the agenda. Nor was the specific proposal to put Pettit on administrative leave, which the board approved on January 12th. Even so, Carl came to that January 12th meeting armed with a draft of a reassignment letter for Pettit, which she distributed to the board prior to the discussion and vote (our public records request for that document is the one Carl tried to intercept last week). When reporter Joel Waldman asked her how she'd known to write a letter for a proposal not on the agenda without violating the open meeting law, she told him that she comes to board meetings "prepared for anything." But board member Susan Kramer called her out on that statement Tuesday night, demanding to know whether Carl had also brought letters on the 12th outlining other options for Pettit. Carl admitted that she had not.
KGUN9 has also documented at least one incident where Carl appeared to give orders to a District employee -- specifically, the episode outlined above where she attempted to intercept a KGUN9 public records request. Carl has no authority we know of to order the District's custodian of records not to handle a particular request. Pettit has complained in his lawsuit of other incidents of Carl ordering District employees around. Taken together, these facts raise important issues. Is Hoyack exceeding his authority in giving assignments to Carl? Is Carl exceeding hers in doing Hoyack's bidding? Is is proper for her to work so hard to keep public documents from the public, given her employment in a public office responsible under state statute for upholding the law? All of these questions have a bearing on allegations Pettit makes in his lawsuit that Hoyack runs the District as if he were the superintendent, and that Hoyack, Carl and others have abused their powers in a conspiracy to violate Pettit's rights -- and stymie his investigation into ELD problems at Stevenson.
What's lost in all this is whether the board's reasons for wanting Pettit gone ultimately are valid, or not. As KGUN9 has documented, although three of the board members have been busy informing each other behind the scenes, they've worked hard to keep the facts from the public, thereby preventing voters from making their own informed judgments about Pettit and the board. Tuesday night the board continued and broadened its defiance of public records law, voting to "redact" the Cooper transcripts personally. What is it that certain board members don't want you to see? The law may allow removal of private information such as e-mail addresses and phone numbers -- a task that support staff could have easily accomplished. But it's very clear that information can't be removed merely because someone finds it embarrassing to themselves or others, or potentially politically damaging. The courts have ruled that the names of adults can't be removed unless the record holder can show, for every such name removed, that publication would cause harm and that the harm would outweigh the public's right to know.
One thing is clear: the board will have a hard time claiming it doesn't know any better. In addition to the constant stream of legal advice to the board from multiple attorneys, KGUN9 has obtained documents showing that Hoyack, Kramer, and Rivera have attended two law conferences apiece over the last year and a half; Ramos has attended three. A PowerPoint presentation provided to KGUN9 from one such conference gives a sample of what board members learn:
All good advice. If every board member had only followed it, many of the allegations in Pettit's current lawsuit would not have a leg to stand on. The burden of legal expenses on taxpayers in the District would be far less. And, fully armed with the facts, Douglas residents could form their own judgments -- which is how democracy is supposed to work.
Links to supporting documents for this story can be found in the "Also on kgun9.com" box in the upper left corner. Comments about our coverage are welcome. Send them to comments@kgun9.com.
Forrest Carr
fcarr@kgun9.com
