by Corinne Murdock | Sep 8, 2021 | News
By Corinne Murdock |
Division One of the Arizona Court of Appeals will soon determine whether the city of Scottsdale violated the state’s gift clause law by awarding one swim team public pool discounted access at the expense of another – for over 10 years. Court of appeals judges Jennifer Perkins, Cynthia Bailey, and Maria Elena Cruz heard the case, Neptune v. Scottsdale, on Wednesday.
As reported previously, swim coach Joe Zemaitis had attempted for 13 years to gain access to Scottsdale’s public pools for his team, Swim Neptune. The city continually rebuffed Zemaitis’s attempts, instead granting access at discounted rates to another team, the Scottsdale Aquatic Club.
In a press release, Zemaitis explained that their efforts over the years were met with bureaucratic inconsistencies.
“Since 2007, we’ve been aggressively pursuing space in the Scottsdale pools,” said Zemaitis. “They seem to reinterpret the rules and rewrite the rules every time we are eligible under the criteria, they change them again to try to freeze us and our residents out, and it’s simply not
fair.”
Initially, Zemaitis apprised the Goldwater Institute of the situation. Their legal team roped in the American Freedom Network (AFN) – the institute’s network of pro-bono attorneys. AFN counsel sent the city of Scottsdale a letter to allow swim teams to bid on the pool space. This prompted the city to open up the pool space for a request for proposal (RFP): a formal solicitation bid.
However, the city of Scottsdale cancelled the RFP after it was apparent that the Scottsdale Aquatic Club would lose the bid. That was the final straw for Zemaitis. This past February, the Goldwater Institute filed suit against the city.
In a statement, the Goldwater Institute asserted that the city of Scottsdale had created a monopoly – giving gifts of discounted rates and pool access to the Scottsdale Aquatic Club in violation of the state’s gift clause – then violated their own procurement code in their handling of
the RFP.
“This monopoly violates Arizona’s Gift Clause, which prohibits government from giving gifts to private entities. That’s exactly what the city of Scottsdale is doing here,” asserted the Goldwater Institute. “The deal was also done in violation of the city’s own procurement code. Scottsdale’s unlawful actions against Swim Neptune Foundation are preventing the swim club’s Scottsdale families from using facilities that they’re already paying for with their taxes.”
During Wednesday’s hearing, the city’s attorney, Eric Anderson, challenged that no city actions constituted a gift clause violation. Anderson argued that cancellation of the RFP contract and the lane fees weren’t gift clause violations.
“What is the claim here? What is Neptune asking this court to do? Are they asking for an injunction, a mandamus?” questioned Anderson.
Anderson argued further that the issues of procurement and gift clause abuses are separate.
Even so, Anderson claimed that the city hadn’t violated any procurement processes. He said that the acting procurement director merely noticed that the process had an error – that the committee should’ve scored the procurement bids entirely and not partially.
The panel of judges appeared confused by Anderson’s arguments. They wondered at the apparent conflicting language between the city’s method for scoring and the RFP (request for proposal).
Judge Perkins stopped Anderson multiple times to note that the court wasn’t so much concerned about the why behind the RFP cancellation, but the fact that it occurred at all.
“Isn’t Neptune saying this cancellation of the RFP worked to give a special advantage to a private interest, and that is why the city cancelled the RFP because if it hadn’t cancelled the RFP then the winning bidder would’ve been the non-preferred entity […] You know, this looks hinky,” said Perkins. “You had a relationship with one entity, you thought that entity was going to win the bid, when it turned out that – at least in the back and forth that we see according to the record – that the math was wrong, and when the math was correct and somebody else was going to get the bid, then we cut off the process. That the big picture is the articulated violation. The question of how we calculate consideration and everything tells us whether or not they’re correct about the violation. That’s not what is the violation.”
As a rebuttal, Riches clarified that the gift clause violation at hand is the city’s subsidization of one private entity. He called for declaratory relief, and a mandamus on the city.
He emphasized the fact that Swim Neptune was the mathematical winner of the city’s procurement evaluation – not Scottsdale Aquatic Club. This would’ve been cause to award Swim Neptune the bid, yet Scottsdale didn’t. Instead, they threw out the RFP.
Riches warned that this case would prove to be the basis for other cases around the state concerning government’s preferential treatment and relationships with private entities.
“If the city of Scottsdale can do this with public resources – [then] they can do this throughout the state,” asserted Riches.
After the hearing, Riches told AZ Free News in a statement that they were pleased with the court’s handling of the case.
“The Gift Clause prohibits the use of public resources by private parties unless certain protections are met. Here, the City of Scottsdale set up a public procurement process for a valued public asset – public swimming lanes – but then arbitrarily tossed the results when it did not like the outcome. That is unlawful and costs Scottsdale citizens $284,000 every year,” explained Riches. “We were glad to see the court of appeals grapple intelligently with these serious questions, and we are hopeful the court will stop the city’s taxpayer abuse in this case, and discourage future abuse going forward.”
The judges indicated that they would publish their ruling soon.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
by AZ Free News | Aug 24, 2021 | Education, News
The National Education Association’s state affiliate tried to harass and intimidate Rhode Island mom Nicole Solas into silence just for trying to find out what her daughter would be taught in kindergarten by filing a legally baseless lawsuit against her. The union even went so far as to seek emergency relief from the court to circumvent the public records law and prevent Nicole from receiving public information.
Today, the union withdrew its baseless request for emergency relief. Nicole has contended since the union first filed this case that the union has no standing and no legal right to bring the action. The union’s voluntary withdraw of its motion appears to recognize the union’s flimsy legal standing.
Earlier this year, Nicole began making public records requests to find out her daughter’s kindergarten curriculum—doing just as her school district asked her to do. But for making these requests, she was stonewalled and even threatened with legal action. The Goldwater Institute made an additional records request on her behalf—and in response, the South Kingstown School Committee hit her with a $74,000 bill to get the information she sought.
The NEA had asked for a preliminary order from the court that would direct the South Kingstown School Committee to stop responding to Nicole’s public records requests. But today, the union withdrew its extraordinary request, and the School Committee now must still meet its statutory deadlines and other requirements to respond to Nicole’s public records requests.
“Nicole and every parent has every right to know what is being taught in their children’s classrooms,” said Goldwater Institute Director of National Litigation Jon Riches, who represents Nicole. “The union’s reprehensible attempt to harass and intimate Nicole and other parents was seen today for what it is—a legally baseless assault that will not stand.”
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by Corinne Murdock | Aug 20, 2021 | Education, News
By Corinne Murdock |
On Thursday, the Arizona Supreme Court ruled that Proposition 208 (Prop 208), the voter-approved increase on income taxes to fund public education, was unconstitutional and remanded to lower court. If that trial court determines that Prop 208 exceeds the constitutional spending limit, then Prop 208 would be killed. Chief Justice Brutinel authored the opinion.
The case, Fann, et al. v. State of Arizona, et al., challenged one major provision of Prop 208 and the circumstances of its approval.
First, the case questioned how Prop 208 exempted itself from the Arizona Constitution’s provisions on tax revenue spending caps, or the Education Expenditure Clause.
Brutinel ruled this aspect of Prop 208 unconstitutional. The chief justice made sure to note that this ruling rendered the other aspects of Prop 208 unworkable and unseverable. Meaning, no part of Prop 208 is enforceable if the trial court concurs with the Arizona Supreme Court’s opinion.
“We hold that the direct funding provision does not fall within the constitutional definition of grants in article 9, section 21 of the Arizona Constitution, and Prop. 208 is therefore unconstitutional to the extent it mandates expending tax revenues in violation of the Education Expenditure Clause,” wrote Brutinel. “Likewise, the remaining non-revenue related provisions of Prop. 208 are not separately workable and thus not severable.”
Second, the case challenged tax impositions made by voter initiative. The plaintiffs cited the Arizona Constitution’s Tax Enactment Clause, which stipulates that tax changes must be approved through a two-thirds vote by the state legislature.
The court disagreed with this assessment.
“Additionally, we hold that Prop. 208 does not violate article 9, section 22 of the Arizona Constitution (‘Tax Enactment Clause’), because that clause does not apply to voter initiatives,” wrote Brutinel. “Therefore, the bicameralism, presentment, and supermajority requirements found therein are inapplicable to Prop. 208.”
The Goldwater Institute, Snell & Wilmer, and Greenberg Traurig filed the lawsuit on behalf of the 11 plaintiffs: State Senate President Karen Fann (R-Prescott); State Senators David Gowan (R-Sierra Vista) and Vince Leach (R-Tucson); Arizona House Speaker Russell Bowers (R-Mesa); State Representatives Regina Cobb (R-Kingman), John Kavanaugh (R-Fountain Hills), Steve Pierce (R-Prescott); Montie Lee of Lee Farms; Dr. Francis Surdakowski; NO on 208; and Arizona Free Enterprise Club.
In a statement, Goldwater Institute Vice President for Litigation Timothy Sandefur classified the ruling as a win.
“Today represents a major victory for the hardworking taxpayers of Arizona,” said Sandefur. “The justices made clear that the state constitution’s limits on spending—which were added to the Constitution by the voters themselves—cannot be simply ignored, as Prop. 208’s funders attempted.”
Governor Doug Ducey concurred that this ruling signaled that the end was near for Prop 208.
“There is a clear legal path to Prop 208 being knocked down entirely, it’s only a matter of time,” tweeted Ducey. “The out-of-state proponents of this measure drafted bad language, and now they are paying the price.”
Proposition 208 (Prop 208) tacked on 3.5 percent to the existing 4.5 percent income tax for individuals making over $250,000 or couples making over $500,000. Previously, Arizona’s income tax rate was capped at 4.5 percent for individual incomes above $159,000 or joint incomes above $318,000. The revenue from the income tax increase would fund a wide variety of educator salaries and programs.
About 52 percent of Arizonans voted in favor of Prop 208 last November, and about 48 percent voted against it.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
by Corinne Murdock | Aug 7, 2021 | Education, News
By Corinne Murdock |
The Goldwater Institute announced Thursday that it will represent a mother sued by the National Education Association (NEA) for daring to look into her school’s curriculum. The NEA is the largest teachers unions in the nation, with over $300 million to spend.
The Rhode Island mother, Nicole Solas, was slapped with the lawsuit on Monday. The NEA requested that the court prohibit the release of the records Solas sought. They alleged in their lawsuit that those records would cause teachers to be targeted and harassed by conservatives. Solas sought records pertaining to the teaching of critical race theory and gender theory, among other controversial topics.
“It is anticipated that teacher records will be produced that will be of a personal nature and will contain the identities of the teachers engaged in the personal communication as well as other communications that relate to the personal issues, disciplinary issues, performance issues, medical issues and issues not related to the official business of the School Department,” wrote the NEA. “[T]eacher emails will be produced that may or will continue discussion about critical race theory curriculum or other issues of ‘interest’ to the requestors that will contain individual teachers’ names and personally identifying information. Given the circumstances of the requests, it is likely that any teachers who are identifiable and have engaged in discussion about things like critical race theory will then be the subject of teacher harassment by national conservative groups opposed to critical race theory.”
Further, the NEA argued that not all records kept by public bodies were public record. It added that redaction of those records wasn’t always sufficient to ensure privacy.
In a press release, Goldwater Institute National Litigation Director Jon Riches assessed that this lawsuit is contrary to Solas’s rights as a parent and citizen.
“This brazen and unprecedented act of intimidation by the NEA will not stand,” said Riches. “Nicole Solas is entitled to know what her daughter’s school is teaching in the classroom. She’s entitled to ask questions. And she does not deserve to face legal action just for asking questions any concerned parent would ask.”
The debacle began when Solas submitted open records requests to her district this spring about the curriculum exposed to her daughter, as well as teacher correspondence
Ultimately, the district said it would cost Solas $74,000 to obtain the records. District policy states that they may charge 15 cents per page, and/or $15 per hour after the first hour of records retrieval. If the district was charging by the hour alone, it would take them a little over 4,900 hours, or 548 days (estimated based on 9 hour work days).
The lawsuit noted that the district released 6,500 pages of documents. That would cost about $975.
Solas hasn’t been discouraged by the lawsuit. Rather, she said that this would only help to further her cause for transparency.
“The NEA is so determined to push its political agenda that they are willing to expose themselves in a court of law for who they really are: an association of bullies eager to challenge a stay-at-home mom who simply wanted to know what her daughter would be taught,” said Solas. “This lawsuit won’t deter me from asking questions, and I encourage all parents to do the same, so that they are empowered to make informed decisions regarding their children’s education.”
The local NEA chapters, the National Education Association of Rhode Island (NEARI) and the National Education Association South Kingstown (NEASK), filed the lawsuit.
NEARI Deputy Executive Director Jennifer Azevedo said that NEA supports open records but believes that the interests of privacy outweigh the public interest in this case.
“We are asking the Court to conduct a balancing test to determine whether our members’ privacy rights outweigh the public interest,” said Azevedo. “We believe they do, and those records should either not be disclosed or should be redacted accordingly.
The NEA also named the school committee of Solas’s district, South Kingstown School District, as a defendant in the lawsuit.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinnejournalist@gmail.com.
by Corinne Murdock | Aug 5, 2021 | News
By Corinne Murdock |
Over 50 property owners are seeking over $23 million in claims due to Flagstaff’s latest regulations on property rights. The Goldwater Institute is representing the property owners; the think tank noted in their announcement last month that “thousands more” could have viable claims against the city, too. Since then, Goldwater Institute Executive Vice President Christina Sandefur informed AZ Free News that more property owners have stepped forward to file a claim. Flagstaff has 90 days to respond to the pending claims.
Flagstaff passed an ordinance in March, the High Occupancy Housing Plan, that restricted residential and mixed-use property improvements. The city’s plan offered a wide scope of regulations, including a limit on the density and number of bedrooms and units in a property, as well as certain automobile and bicycle parking standards.
In a press release, the Goldwater Institute pointed out that state law – Prop 207, or the Private Property Rights Protection Act – requires Flagstaff to pay individuals whenever they take away their right to use their property. The institute argued further that the restrictions on renovations, improvements, or further property developments constituted a taking away of rights.
“Flagstaff’s ordinance is exactly the kind of government overreach that Arizona voters sought to guard against,” asserted the think tank. “That’s a costly burden on property owners, it’s unconstitutional, and it’s why the Goldwater Institute is seeking relief on their behalf under the Private Property Rights Protection Act.”
Under Prop 207, current recourse for Flagstaff property owners entails writing a letter to the city requesting payment for any property value diminishment the restriction caused, or for the city to waive certain restrictions entirely. Sandefur says that if proper recourse isn’t offered, they will take legal action.
“Under Proposition 207, the city has 90 days to decide whether to pay the property owners for taking their rights away, or whether to give them their rights back,” explained Sandefur. “We are hoping that the city does the right thing so that these claims don’t have to turn into litigation, which will be time-consuming and costly for the city.”
Flagstaff’s High Occupancy Housing Plan claimed that there would be no financial or policy impacts. The plan was considered an advancement to the city’s 2018 High Occupancy Housing Specific Plan (HOH Plan).
The Goldwater Institute clarified that it hasn’t filed any lawsuits for these claims to date.
AZ Free News reached out to the city of Flagstaff for comment. They didn’t respond by press time.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinnejournalist@gmail.com.
