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School District Unification: Legal Questions and Answers. Chris Thomas Director of Legal Services Arizona School Boards Association. What We Will Cover. Background: How Did Things Get This Way and What Problem are We Trying to Fix? SB1068/SB1164: The Charge and The Process

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school district unification legal questions and answers

School District Unification: Legal Questions and Answers

Chris Thomas

Director of Legal Services

Arizona School Boards Association

what we will cover
What We Will Cover
  • Background: How Did Things Get This Way and What Problem are We Trying to Fix?
  • SB1068/SB1164: The Charge and The Process
  • Current Law on Unifying School Districts
  • FAQ’s:
    • funding (taxes, overrides, bonds, small school weight, desegregation funds, career ladder)
    • salary schedules
    • Property division/Contract Obligations
    • Merging Into One Governing Board
    • Voting Rights Act Issues
  • Your Questions Answered
types of districts
TYPES OF DISTRICTS
  • Only elementary until 1893
  • Union high schools created in 1893
  • Unified school districts authorized in 1975
  • Historically some of the elementary and high school districts operated as unified districts with a common board of trustees
number of school districts
NUMBER OF SCHOOL DISTRICTS
  • 1906-07: just under 300
  • 1917-18: five years after statehood - 562
  • 2007: 230
  • Examples of other states:
    • California - 999
    • New Mexico - 89
    • Oklahoma - 649
current arizona school district organization
CURRENT ARIZONA SCHOOL DISTRICT ORGANIZATION
  • 115 elementary school districts of which 10 are transporting districts
  • 17 high school districts including 1 joint technological district
  • 89 unified school districts
  • 221 total districts plus
  • 6 accommodation districts
other states organization
OTHER STATES’ ORGANIZATION
  • Arizona is one of 19 states to have both independent elementary school districts and independent high school districts
  • California: 618 elementary, 107 high school
  • Illinois: 413 elementary, 112 high school
  • Minnesota: 57 elementary, 11 high school
  • Montana: 343 elementary, 154 high school
what problem are we trying to solve
What Problem Are We Trying to Solve?
  • Research shows that the better the articulation and alignment of curriculum K-12, the better for student achievement
    • AZ State Academic Standards created, refined and put into place in early 90’s, AIMS test to measure
  • Concern for increasing dollars devoted to classroom instruction
    • Study that says “optimum” size for districts – for business efficiencies – is 30,000 students
    • Are larger districts better for students?
      • No research – lots of research showing smaller schools are more successful
the push for district consolidation unification
The Push for District Consolidation/Unification
  • Mid 1970’s – Legislative Commission to force consolidation; disbanded without making a recommendation after contentious public hearings
  • Late 1980’s: “Incentive” funds to encourage districts to voluntarily unify or consolidate
    • “10-7-4” monies
  • 2000: Legislation that removed requirement that decision to unify/consolidate go to the voters – vote of boards was enough
  • Evolution of ASBA Position on Issue
    • Support local control, assisting those districts that chose to unify; highlight topic at ASBA conferences
    • Locally approved vs. locally initiated and approved: change to the ASBA agenda after 2004 legislative session
sb1068 asrdc the charge
SB1068 -- ASRDC: The Charge
  • Passed in 2005; 46-13-1 in House; 19-9-1 in Senate; signed by Governor; Laws 2005, Chapter 191
  • ASBA Opposed based on new Political Agenda
  • Set up 13 person Arizona School District Redistricting Commission to review all elementary districts and consider:
    • Combining with other elementary districts to form unified district; or
    • Combining with other elementary districts and a union high school district to form a unified district.
    • Commission cannot look at consolidating districts that are already unified nor look at combining an elementary district or a high school district with an already unified district
sb1068 asrdc the process
SB1068 -- ASRDC: The Process
  • Commission met in regular meetings since Summer 2005
  • First recommendations came out in Fall 2006
  • Officially sent to affected districts for comment in April 2007 (required)
  • Affected districts had until September 15 to comment on plans
  • Commission were to consider recommendations of the governing boards in forwarding final plan to Governor by December 31, 2007
  • Governor MUST sign report and file recommendations with Secretary of State (no discretion)
sb1068 asrdc the process11
SB1068 -- ASRDC: The Process
  • Commission were to consider other factors such as:
    • Relevant academic and scientific research regarding school size, school district size, fiscal implications and legal issues
    • Geographic boundaries and travel time of students
    • Unorganized territory where at least 1% of population attends school in unified district
    • Use of regional service plans to consolidate costs
    • Transition issues: 9 member board in large or urban districts; allow existing board members to serve out remainder of terms; assimilation of legal liabilities by new unified district of former districts
sb1068 elections issues
SB1068: Elections Issues
  • November 2008 Ballot: County School Superintendent shall call election within boundaries of new unified district
  • Publicity pamphlet also prepared by county superintendent and must includes arguments for the plan from the commission as well as any arguments in opposition submitted by governing boards of affected districts or any elector that wishes to submit an argument
  • Cost of election must be paid by each district affected in proportion to each district’s registered voter total compared to the total in the entire unified district
sb1068 elections issues13
SB1068: Elections Issues
  • A Majority in each affected district is required to approve the plan
    • If one says “no,” they all say “no”, even if an overall majority says “yes”
    • Controversy on the effect of two-question possibility when breaking up a union high school district into several districts
sb1068 extra funding for unification consolidation costs cut
SB1068: Extra Funding for Unification/Consolidation Costs Cut
  • Eliminated funding to cover costs of unification – voluntary or recommended
    • Used to allow for 10% funding over Revenue Control Limit in first year after unifying; 7% in second year after unifying; 4% in third year
  • Now only amount associated with “routine formalities” such as “changing of letterhead, stationary or similar issues”
issues discussed but never acted on
Issues Discussed But Never Acted On
  • Reinstatement of Cost Reimbursement
  • Small School District Adjustment Tweaks
  • Expand authority of Commission to recommend elementary districts merge with already unified districts
  • Expanding SFB authority to build high schools in unified districts that don’t currently have a high school
  • Equalization of funding between high school districts and elementary districts on per pupil basis, resulting in more uniform salary schedules
current law on unification
Current Law on Unification
  • Important: Any unification that is approved by the voters will have to follow existing statutes
    • If there is a conflict between existing statute and the current charge of the commission, statute will likely prevail
  • Two Main Statutes on books: §§15-448 and 15-458
a r s 15 448
A.R.S. 15-448
  • Allows one or more elementary districts and a high school district with “coterminous or overlapping” boundaries to establish a unified school district
  • Does not apply if some of high school facilities would remain outside of new unified district (that would be driven by 15-458)
  • NO ELECTION REQUIRED (if voluntary)
a r s 15 448 continued
A.R.S. 15-448 (continued)
  • Student Counts: for the first year, the student count is count of all the school districts that have unified
  • Any elementary district not part of unified district but in the former high school district boundaries must pay tuition for students attending high school in the new unified district
    • Must include part to cover bond indebtedness of former high school
    • No fee to cover overrides
  • New governing board charged with creating new policies
a r s 15 448 continued19
A.R.S. 15-448 (continued)
  • Teacher Pay:
    • According to policy, in the first year of operation of the new unified district, each certificated teacher must receive at least same base compensation as before
    • Also, each certificated teacher must receive full credit for years of service
    • NO requirement that all teachers be brought up to the highest level of pay among the former districts
    • Any reductions in salary in 2nd year would have to follow prescriptions of §15-544 (reduction in force)
a r s 15 448 continued20
A.R.S. 15-448 (continued)
  • Overrides continue; can request a new override based on new combined revenue control limit (must follow 15-481); if approved, new override replaces existing override
  • ALL ASSETS AND LIABILITIES of former districts are assumed by the new district
formation of new district by subdivision of existing district 15 458
Formation of new district by subdivision of existing district – 15-458
  • Election required
  • Must get petition of 10% of qualified voters in area of new district or 50 whichever is more (again, only if voluntary)
  • Governing board seats to be decided as in §15-448
15 458 division of property
§15-458 – Division of Property
  • The district that will be divided must produce a projected list of assets by the end of the fiscal year in which the election is held
  • Governing boards of existing districts should divide property by September 15 of year in which new districts become operative
  • If the governing boards can’t do that, the county attorney must divide assets by October 1
faq s funding
FAQ’s - Funding
  • Taxes: How are the tax rates reconciled between previous district and new district?
    • New district governing board will set the tax rate (based on new Revenue Control Limit)
    • Primary taxes on overrides will continue until expiration of the override based on budget limit of former district before unification
      • For a subdivided union high school district with an override, it is unclear whether that override will continue (depends on whether other districts had them); authorization expires at earliest time
faq s overrides and bonds
FAQ’s: Overrides and Bonds
  • Can overrides and bonds already approved be continued?
    • Yes, but only under the limitations that were set forth when they were passed and they would have to expire naturally or be renewed under the new district
faq s funding25
FAQ’s: Funding
  • Career Ladder:
    • What if a district that receives career ladder unifies with a district that doesn’t have it?
      • (A district may increase its Base Level amount by up to an additional 5.5% if it participates in a pay for “Career Ladder”; however, enrollment in that program has been closed)
      • Answer: This is truly unsettled: ASDRC says that State Board can expedite approval of new application – has received legal advice from Leg. Council on this; we believe this would take legislative approval
      • Cost to state general fund would be significant – should be included in final Commission report
faq s salary schedules
FAQ’s: Salary Schedules
  • How would a new unified district merge the salary schedules of its employees from the previous districts?
    • The new board would have the power to make new policy; no certified person can make less
    • NOT a given that lower paid will make more
    • There is no proposal to infuse add’l funds into system and high school weight will continue
faq s property division contract obligations
FAQ’s: Property Division/Contract Obligations
  • Under 15-448 (K) all assets and liabilities of unifying districts are assumed by the new district; if breaking up a union high school district it would depend on division agree to by new unified districts or by county attorney under 15-458 (D)
  • ASDRC now has authority to consider effect of buy-out of superintendent contract (no authority to buy out though)
faq s merging into one governing board
FAQ’s: Merging Into One Governing Board
  • Under 15-448 and 15-458, all governing board members would serve until the next general election when all seats would be up for election as a 5 member board (in an election of new unified district)
    • Top 3 vote getters have 4-year terms
    • Next 2 vote getters have 2-year terms
  • Where a high school district is split to form more than one unified district, the board members of the high school district will sit as members of the unified district in which they reside until the next general election
faq s board representation of new unified district
FAQ’s: Board Representation of New Unified District
  • Could the district adopt a “ward” system that would provide guaranteed representation from areas of all former districts?
    • Right now, no. The “ward” system authorized in statute (and currently in use in only one district) has been declared unconstitutional
    • Problem of One Person, One Vote Equal Representation
    • ASDRC has authority to consider ward system in recommendations but would need law to change
faq s voting rights act concerns
FAQ’s: Voting Rights Act Concerns
  • Voting Rights Act: Federal law that protects minority voter rights; AZ – due to past indiscretions -- must get clearance from US Dept. of Justice for any plan that may affect minority voting rights
    • Concern is dilution in strength of minority voters; where “majority minority” district merges with “majority” Anglo district this occurs
faq s district names
FAQ’s: District Names
  • How will new unified district name be chosen?
    • New school board will decide; they have two years to do it under ASDRC plan (to allow for new representative board to be in place)
faq s school facilities
FAQ’s: School Facilities
  • Could the merger of districts require or hinder the building of a new school?
    • All school buildings paid for from state funds must be built according to standards of Students FIRST and approved by School Facilities Board using formulaic criteria; the same formula would be applied in this situation
    • ASDRC: now has in its authority ability to consider this in making recommendations
15 511 restrictions
15-511 Restrictions
  • 15-511 restricts those persons acting on behalf of a school district from attempting to influence the outcome of an election
  • Districts are now restricted since unification plans are being forward to the ballot
  • Board members and school employees: can do and say anything as long as not acting in an official capacity or during work
a r s 15 511
A.R.S. § 15-511
  • Similar to many states - meant to keep public funds from being used to influence important public policy decided at the ballot
  • Keep children out of electoral/political debate
  • Substantially revised in 2003 Legislative Session (Laws 2003, Chapter 259 - HB2279)
a r s 15 51135
A.R.S. § 15-511
  • A. “A person acting on behalf of a school district shall not use school district or charter school personnel, equipment, materials, buildings or other resources for the purpose of influencing the outcome of elections.”
15 511 a the break down
15-511 A. -- The Break Down
  • A person acting on behalf of: person must be acting with express or implied consent
  • Personnel: persons employed by district - salaried or non-salaried volunteers included
  • Equipment: copiers, bulletin boards, fax machines, computers, mailboxes, furniture, vehicles, postage meters and internet connections - also district communication networks - newsletters, web pages, etc.
15 511 a break down 2
15-511 A. -- Break Down #2
  • Materials: supplies or tools, including paper pens, postage, labels
  • Buildings: includes owned or leased, playing fields, parking lots, walls, fences
  • Resources: credit, money or accounts
  • Influencing the outcome of: communication as a whole unambiguously urges a person to vote in particular manner
  • Election: includes all, including events leading to election
a r s 15 51138
A.R.S. § 15-511
  • B. “An employee of a school district or charter school who is acting as an agent or working in an official capacity for the school district or charter school may not give pupils written materials to influence the outcome of an election or to advocate support for or opposition to pending or proposed legislation.”
    • ABSOLUTE: no materials given to students
    • NOTE: also applies to lobbying!
a r s 15 51139
A.R.S. § 15-511
  • C. “Employees of a school district or charter school may not use the authority of their positions to influence the vote or political activities of any employee.”
    • No coercion of any kind allowed whether blatant, subtle, direct or indirect
a r s 15 51140
A.R.S. § 15-511
  • Other sections:
    • D. Free speech rights protected
    • E. Attorney General must come up with guidelines by January 1, 2004
    • F. AG or County Atty can sue in Superior Ct.
    • G. Court imposed fines of $500 per violation plus any amount expended (no reimbursement from insurance)
    • H. Attorney acting on behalf of district can request opinion by AG or County Atty about whether a practice might violate §15-511
what is not covered lobbying
What is NOT Covered - Lobbying
  • Political Advocacy or Lobbying Effort
    • with exception of use of students taking home materials!
  • Districts not precluded from having broad advocacy campaign in favor of or in opposition to state or federal legislation
  • Still must be wary of using public funds for non-public purpose
    • appearances matter
free speech
Free Speech
  • Specifically mentioned in §15-511 that free speech rights trump statute
  • Doesn’t matter: Arizona and Federal Constitutions apply regardless of statute reference
  • First Amendment rights, however, are not absolute when in employment or school contexts; First Amendment does not confer a right to use public resources for speech
free speech43
Free Speech
  • Free speech rights in §15-511 context depend on who speaker is
    • Board members in individual capacity
      • as elected officials, Constitution gives them near absolute right of speech; wide latitude given on issues of public policy (Bond v. Floyd, 1966)
    • Board members as a collective
      • fewer rights; do have certain rights given under 15-481 for report on override election
      • board resolutions in favor of election probably prohibited
free speech44
Free Speech
  • Administrators, Teachers and Other Employees
    • Public employees can speak freely OUTSIDE of the classroom unless, by doing so, they significantly disrupt the efficient operation of the school district
    • Teachers have greater right of free speech while not on duty-bound time, even if on campus
    • Rules ARE DIFFERENT and more restrictive if the speech in question is directed at students, in part because students are a captive audience
some guidelines the black or what you definitely cannot do
Some Guidelines: The Black (or what you definitely CANNOT do)
  • Campaign materials cannot be sent home with students under ANY circumstances
    • this includes newsletters where only a part of newsletter contains message
  • No requirements on employees to take part in campaign support - even if on their own time
  • Campaign funds should never be collected on school property
some guidelines the black or what you definitely cannot do46
Some Guidelines: The Black (or what you definitely CANNOT do)
  • NO use of school copiers, paper, pens, media equipment, school web sites, buildings, property or school personnel
  • PTOs/Teacher associations must also pay full value for any resources used - if election is discussed at any meeting on school premises, and discussion is meant to influence election, rental charges must apply
some guidelines the black or what you definitely cannot do47
Some Guidelines: The Black (or what you definitely CANNOT do)
  • Paid political consultants to give advice on how to pass measure
  • No payment to employees for time spent on campaign activities
    • this includes if teacher is on paid assignment as union representative or is official representative on PTO or site council and election campaigning takes place
  • Passage of resolution in favor of a ballot proposition (except overrides 15-481(B)(9)
some guidelines the black or what you definitely cannot do48
Some Guidelines: The Black (or what you definitely CANNOT do)
  • Do not permit candidates and rep’s to announce candidacy or advocate for election or defeat of opponents in school buildings except in public forums
  • No petition circulation - individual employees can circulate during non-duty time, outside classroom or at school sponsored extracurricular event where they have no duties
some guidelines the black or what you definitely cannot do49
Some Guidelines: The Black (or what you definitely CANNOT do)
  • No campaign signs, banners, stickers etc. in school district buildings
  • No political buttons on school personnel, or on board members (at a board meeting)
  • No use of mailboxes, e-mail or phone - even if school allows some personal use of these resources
some guidelines the white or what you definitely can do
Some Guidelines: The White (or what you definitely CAN do)
  • For overrides (pursuant to §15-481)
    • May use staff, equipment, materials and buildings to distribute informational report mentioned in statute at the district office or at public hearings
  • Factual information as to impact of ballot measure (fiscal impact)
  • Responses to questions - OK, must be neutral with no clear and unmistakable pleas to vote one way or another
some guidelines the white or what you definitely can do51
Some Guidelines: The White (or what you definitely CAN do)
  • Individual board members can actively campaign for election issues
    • good practice to disclaim that they are not acting on behalf of board but not required to do so (appearances bring scrutiny however)
    • includes meetings with civic organizations or writing op-ed pieces for newspaper
  • School employees can do same
    • if during non-duty time
    • strongly urged to disclaim not acting for district
some guidelines the white or what you definitely can do52
Some Guidelines: The White (or what you definitely CAN do)
  • Administrators, staff and other school employees can encourage staff, the public and board members to vote in the election without urging a particular vote
  • Superintendents can speak on behalf of override but must take leave to do so
  • School buildings can still serve as polling places
  • Private vehicle bumper stickers OK
some guidelines the white or what you definitely can do53
Some Guidelines: The White (or what you definitely CAN do)
  • Candidate or ballot question forums can be held on school grounds but all viewpoints must be represented and fairly treated
    • ALL viewpoints must have opportunity to participate - must make effort to include all
  • Continue to communicate to your community about the good things happening in the district
    • But watch: type and timing of mailings - shouldn’t be done with eye toward influence
some guidelines the white or what you definitely can do54
Some Guidelines: The White (or what you definitely CAN do)
  • Individual Statements of Opinion by board members in support of election
    • contrast with opinion of “board”
  • Voter registration material can be made available - should be done all the time to avoid appearance of advocacy effort
    • Vote by mail requests
    • Get Out The Vote Efforts
some guidelines the white or what you definitely can do55
Some Guidelines: The White (or what you definitely CAN do)
  • Assistance from paid consultant with mechanics involved in getting measure on the ballot
  • Bumper stickers in favor or in opposition to a ballot question or candidate can be on an individual’s car on school grounds but not on a public vehicle
  • Hold meetings with your employees to explain these rules!
important note
Important Note
  • AG or County Attorney must prove that violation was KNOWINGLY made in order for violation to be found
    • Can protect employee and district by having well articulated and disseminated policy prohibiting use of resources to influence election
some tips
Some Tips
  • Hold informational meetings discussing these rules with your employees and distribute rules
    • caution that success of ballot measure might hinge on bad publicity on part of district
    • important since penalties now fall on individual not the district
    • penalties will be severe: reimbursement could be substantial
some tips58
Some Tips
  • Retain a contract attorney for the district to answer questions or make sure you have a county attorney who will make themselves available to answer questions that demand quick response
  • If you make a mistake, self disclose to the county attorney or attorney general and make the needed corrections in policy
    • don’t let your enemies report you
questions

Questions?

Chris Thomas

E-mail: cthomas@azsba.org

1-800-238-4701

602-254-1100