Maricopa County Attorney's Office Ignores Statutory Duty to Schools
A new Governor, a new AG, and a willing county attorney committed to helping schools and parents can change that
In this Stack:
Staff lawyers at the Maricopa County Attorney’s Office helped the Board of Supervisors and Maricopa Public Health implement unlawful isolation and quarantine policies for C19
In Arizona the County Attorney’s Office is statutorily designated to represent school districts - so why aren’t they doing it?
Ceding the battle space - one law firm fills the vacuum
Imagine a “Schools Division” at the County Attorney’s Office
[Note - due to length, some email browsers may clip this Stack. Please click the link to read in full on Substack - it’s free and easy]
1/ Staff lawyers at the Maricopa County Attorney’s Office helped the Board of Supervisors and Maricopa Public Health implement unlawful isolation and quarantine policies for C19
First, let me reiterate my view that the Maricopa County Attorney’s Office (MCAO) should be held accountable for their role in allowing their client, the Board of Supervisors and Maricopa Public Health, to unlawfully force public school students into isolation and quarantine for C19 without due process in violation of law (ARS §§36-788, -789). They did so in two ways: (1) they sat back and let their client knowingly implement policies during a state of emergency that directly contravened existing due process statutes, and (2) they gave cover for their client to conceal policy-making behind closed doors in violation of the Open Meeting Law. You can read my OML complaint filed with the AG against the BOS at this link.
TheLegalProcess @ALegalProcess
🚨Public records show Maricopa BOS held closed-door meetings approving MCDPH mandatory quarantine policies for schools. Why does this matter? B/c BOS is a public body subj to both: (1) legislator-directed AG investigation per ARS 41-194.01 and (2) The open meeting law 1/n https://t.co/2pyrpeevx9
The complaint in a nutshell:
One of the exceptions to public bodies’ obligation to hold open, pubic meetings includes discussions in executive session with legal counsel to receive “legal advice.” The public body cannot take legal action at these sessions, only receive legal advice. But public records show the BOS was actually using the cover of MCAO staff lawyers’ attendance at these executive sessions to give Public Health approval of these unlawful quarantine policies. They didn't just passively receive legal advice, they were taking legal action behind closed doors in violation of the OML statutes.
In 2020-2021 the MCAO - and county attorney’s offices across the state - let school districts down. They let parents down. I devoted a lot of Twitter space to this topic.
TheLegalProcess @ALegalProcess
Despite knowledge of the due process rights of parents, MCDPH tells meeting of school district superintendents in Dec 2021 they "elected" not to follow the law...because just not practical when they don't have capacity. 1/2 https://t.co/UQbrdvJOS8 https://t.co/5b8sWgNAuEand here:
TheLegalProcess @ALegalProcess
Unlawful Quarantines | Schools | Civil Rights: 🚨UPDATE: Phoenix Sky Harbor Communicable Disease Response Plan edited by MCDPH med director, Rebecca Sunenshine, further shows MCDPH knew - THEY HAVE NO AUTHORITY TO QUARANTINE SCHOOL KIDS WITHOUT DUE PROCESS 1/7 https://t.co/DpvitU0axbNotwithstanding - the MCAO has a statutory duty to represent school districts in Arizona - and this Stack is an appeal for them to start doing their job.
2/ In Arizona the County Attorney’s Office is statutorily designated to represent school districts - so why aren’t they doing it?
My guess is that most people, including governing board members, don’t know that Arizona law requires the county attorney’s office to represent school districts:
“The county attorney is the public prosecutor of the county and shall…act as the attorney for school districts…
The statutory duty is not limited to representing districts in lawsuits. “Act as attorney for school districts” is not limited to litigation and encompasses guidance and ongoing legal counsel. Indeed, ARS §15-381 expressly gives board members a “get out of liability free’’ card if they take actions in reliance on the legal advice of the county attorney - in the form of written opinions approved by the attorney general.
So, if you are a governing board member in Arizona, wouldn’t you want the ability to seek a legal opinion when you’re not quite sure the district is doing something properly? Why not avail yourself of the “get out of liability free” card by asking to meet and confer with your local county attorney who’s statutorily obligated to advise you? Remember, if outside counsel to the district is telling you something that just doesn’t add up - relying on their opinion doesn’t give you that card.
By pushing the job of advising schools down to the county attorney’s office, the legislature’s intent appears designed both (1) to optimize limited judicial resources for the attorney general without relinquishing oversight, and (2) to bring the attorney-client relationship closer to the local level where schools operate, where board members live and can more easily interact with their county attorney’s office.
As the AG’s own agency handbook notes - the AG does not accept requests for legal counsel opinions directly from school district governing boards. However, the AG will respond to opinions submitted by a county attorney “relating to school matters.”
There’s more.
The county attorney is supposed to consent to the use of outside counsel by school districts - which underscores the centrality of their statutory duty to advise school districts because if a district does not obtain that consent, the county attorney is relieved of its duty to defend the district in a lawsuit if something goes wrong. It’s right there in the Title 15 of the education statutes:
And THAT is probably why county attorney’s offices across Arizona do NOT engage with school districts - they know school districts can use their own budgets to hire outside counsel. In a world of limited budgets, MCAO simply pushed off legal work for school to outside law firms.
Go ahead, look up your county attorney’s website. Here’s Maricopa’s. I can’t find anything on their duty to “act as attorney” for school districts, much less a repository of written legal opinions “relating to school matters.” It’s like they don’t even want school districts to know that, by law, the county attorney represents them.
3/ Ceding the battle space - one law firm fills the vacuum
Education law is its own legal specialization. So it’s no surprise there’s not a lot of law firms that invest in developing that practice area, or that one law firm has a near monopoly in the Valley: Gust Rosenfeld.
I don’t like to target other lawyers as a matter of professional courtesy, but that firm name appears everywhere I look on school board matters - usually on the wrong side of parents’ rights issues.
TheLegalProcess @ALegalProcess
🚨Liberty25 board approves plan to outsource management of district to staffing agency - from July 1: - superintendent retired/rehired as "leased employee" - super gets state retirement benefits NOW - super's contract req's district to REHIRE in 12 months Legal in AZ? 1/14 https://t.co/GtCcCOxBTIand here:
TheLegalProcess @ALegalProcess
If you follow me, you know how I feel when I see this law firm on a school-related matter. Here's a legal memo to AZ insurer for schools on possibility of mandating C19 shot. 👀How can same firm rep BOTH the schools AND the schools' insurer? Are conflict laws different in AZ? https://t.co/PuWd3knYkfI don’t begrudge Gust for developing a successful practice - I’m sure it is quite lucrative, with near zero risk of collection when your client is a taxpayer funded entity - and constantly in need of legal counsel. School districts are especially under constant pressure these days - and rightfully so - with the Parent Uprising of 2021 rippling through governing boards and districts across the country like political wildfire.
But when one law firm has a monopoly, governing boards and school districts are “captive” clients - that’s not good for all stakeholders. There are often multiple ways to approach legal problems - requiring judgment and experience. And, to be honest, political inclinations can affect solutions offered to a client.
From what I see in the culture wars over schools, Gust is firmly on the side of the administration and status quo. But they are not infallible. In fact, they’re often wrong about issues important to parents such as the Open Meeting Law.
Board members who want a second legal opinion are out of luck - unless and until the county attorney’s offices start taking their statutory duty to schools seriously again.
4/ Imagine a “Schools Division” at the County Attorney’s Office
Here’s a partial view of MCAO’s current organizational chart containing all the front-line divisions:
What would it take to add another box for “School Matters” - political will and money, of course. The legislature could allocate additional funding, or the MCAO could rearrange budget priorities. The elected county attorney could make it a campaign promise and reorganize the office to expand the Civil Services division.
And the governor could compel the attorney general to make it happen under existing law. ARS 41-193(A)(4), (5):
With an election coming up, which candidate for governor, if any, will make this a priority? Which one is willing to buck the system and status quo, break the monopoly and ensure our school districts follow the law?
I know of one.
And there are two very good candidates for attorney general and county attorney that I suspect would jump at the chance to carry out the governor’s priorities.
End.
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