Attorneys for charter schools will have their day in court Dec. 2 in an attempt to stop the state from taking almost $6 million from them.
The Arizona Department of Education contends it is just trying to correct an overpayment made in fiscal years 2011 and 2012 from the voter-approved Proposition 301’s Classroom Site Fund.
Agency officials contend the overpayments came when the state was making up for shortfalls in the fund in four fiscal years during the economic downturn. The department used present day student counts to reconcile the money owed.
“Paying schools in this manner meant that schools that had not been open during the shortfall years and schools that saw increases in their student counts received higher payments than they would have received otherwise,” wrote Jordan Ellel, an assistant attorney general representing the department.
As an example, Ellel said Archway Classical Academy Veritas in Phoenix was paid $60,000, even though it didn’t exist in the years of the shortfalls. The school was one of 32 other schools opened in 2011 or 2012 that didn’t exist in the shortfall years and got payments.
The Charter Schools Association and 16 charter schools say the department is wrong for several reasons.
The charters say there was no overpayment, because the law requires money to be distributed based on current-year enrollment figures, so there is nothing to recoup.
Another argument is that the department didn’t follow the law for administrative procedures. The department effectively created a new administrative rule when it came up with a plan to recoup the money and was required to follow the rulemaking process, wrote attorney Kory Langhofer, who represents the charters.
In legal filings, Langhofer argued that the department lacks authority to unilaterally reduce or offset distributions, and that schools had no due process in the matter.
Lastly, Langhofer argues that the department violated the Voter Protection Act, a 1998 ballot measure that prevents the Legislature from altering a voter-approved initiative without approval from three-quarters of the House and Senate. Any changes must also further the purpose of the law being amended.
Prop. 301 did not allow for shortfalls to be carried forward to later years when voters approved it in 2000, but the Legislature changed the law in 2009, though without three-fourths majorities.
Langhofer said the amendment to the law failed on both requirements of the Voter Protection Act, so the department’s plan for recouping money also is in violation.
Ellel argued that the change didn’t require a three-fourths vote because it simply codified the department’s practice and was unnecessary, and only the Legislature can violate the Voter Protection Act.
“The Department’s interpretation of the statutes governing the Fund is not subject to VPA protection,” Ellel wrote.