Republican Legislators Demand Mayes Retract False Statements About ESAs

May 27, 2023

By Daniel Stefanski |

Arizona Republican legislators have finally had enough of Democrat Attorney General Kris Mayes’ continuing assault on the state’s historic Empowerment Scholarship Accounts (ESA) program.

On Thursday, a bicameral group of Republican lawmakers, led by Senate President Warren Petersen and House Speaker Ben Toma, transmitted a letter to Mayes, demanding that she “publicly retract (her) patently false statements attacking ESAs and impugning the motives of thousands of parents that use ESAs to provide the best education for their children.”

The accusations and demands in the letter stem from a recent television interview Mayes gave where she “claimed that ‘there are no controls’ on the ESA program, ‘no accountability,’ that ‘they’ (presumably parents) are ‘spending hundreds of millions of dollars of taxpayer money,’ that this ‘needs to be looked at,’ and that it’s (her) ‘responsibility to do that’ as Arizona’s ‘top law enforcement officer.’”

The coalition of eight legislators (Senators T.J. Shope, Sonny Borrelli, and Sine Kerr, and Representatives Travis Grantham, Leo Biasiucci, and Teresa Martinez – along with Petersen and Toma) share their alarm “that the state’s chief legal officer would make such outlandish claims that are refuted by Arizona law.” They write that “Numerous statutory provisions in the ESA laws expressly require accountability, oversight, and investigations when appropriate. See, e.g., A.R.S. § 15-2403 (requiring, among other things, the Arizona Department of Education to conduct or contract for ‘random, quarterly and annual audits’ of ESAs ‘as needed to ensure compliance’, authorizing the Department to remove parents or qualified students if they fail to comply with the contract or applicable laws, rules or orders, and enabling the State Board of Education to refer cases ‘of substantial misuse of monies’ and suspected cases of fraud to the Attorney General).”

Republican Superintendent of Public Instruction Tom Horne’s administration has been amenable to referring such cases of fraud or misuse of monies to the Attorney General as directed under law. In a tweet on March 1, the Arizona Department of Education responded to an account alleging misuse and / or fraud of ESA funds (in a post that has since been deleted), saying, “Please provide your relatives name, and we would like to refer her to Attorney General Kris Mayes. ESA dollars should only be spent on education.”

The Republicans warn Mayes that her rhetoric and threats are way beyond the statutory scope of her office, writing, “You have not cited a shred of evidence to suggest that either the Arizona Department of Education or the State Board of Education—both of whom you represent—have failed to comply with their statutory obligations, and there is no basis to believe that these agencies will disregard or refuse to follow the law in the future. And while you have a statutory responsibility to investigate matters that are referred to you, the Legislature did not authorize and does not condone the selective targeting or roving investigations of ESA parents.”

They also raise the issue of “ethics” that will be sure to catch the attention of the intended audience at Central Avenue and just north of McDowell. Over the past few years, then-Secretary of State Katie Hobbs weaponized the Arizona State Bar and ethics rules against then-Attorney General Mark Brnovich, her political rival at the time, giving a very low standard of precedent for a reprisal against the state’s newest prosecutor. Hobbs didn’t just file bar complaints against Brnovich; she leveled the charges at several attorneys in his office over political disagreements between the two. In their letter to Mayes, the legislators write: “Of course, Arizona’s Ethical Rules do not tolerate the initiation of criminal proceedings absent probable cause to believe that any parent has committed a crime. See Arizona Ethical Rule 3.8 (listing the special ethical responsibilities of a prosecutor). Further, it would raise ethical questions if a government attorney were to publicly insinuate that a current client is engaging in misconduct with no factual basis. See, e.g., Arizona Ethical Rule 1.7 (imposing a duty of loyalty to a current client).”

The lawmakers end their letter with an appeal for Mayes to conform with the expectations and values of their shared constituents across the state, stating, “Arizonans expect the state’s chief legal officer to refrain from engaging in politically-motivated pursuits, threats, or lawsuits, and to make public statements that align with Arizona law and the duties of your office.”

Daniel Stefanski is a reporter for AZ Free News. You can send him news tips using this link.

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