State schools Superintendent Diane Douglas lashed out at Gov. Doug Ducey after he overturned her attempted firing of two state Board of Education employees, accusing him of infringing on her statutory and constitutional duties and of surrounding himself with a cabal of Common Core supporters.
Douglas asserted that she has the right to hire or fire Board of Education employees. She noted that a law says the Board of Education can hire staff “on the recommendation” of the superintendent of public instruction.
“Governor Ducey apparently views himself as both governor and superintendent of Schools,” Douglas said in a press statement.
On Wednesday, Douglas fired Board of Education Executive Director Christine Thompson and her deputy, Sabrina Vasquez. But Ducey overturned her decision, saying only the board has the authority to fire its employees.
“We don’t think anybody’s been fired,” Ducey told reporters. “The board has the legal authority, and they have not yet acted. So that’s where we are.”
Ducey added, “We’re going to follow the law in this administration.”
The governor said his legal counsel concluded that only the board has the authority to fire its employees. The Governor’s Office also cited a 1985 legal opinion from the Arizona Attorney General’s Office stating that the statute gives the board the power to dismiss its employees.
“In the case of employees of the board, the hiring recommendations of the superintendent of public instruction are subject to the final approval of the board. The power of appointment likewise extends to the power to dismiss,” the opinion read.
A state law says that the Board of Education shall “employ staff on the recommendation of the Superintendent of Public Instruction.”
The Arizona Department of Education interpreted that statute to mean that Douglas has clear authority in the hiring and firing of board employees.
“The powers and duties of the Board of Education do not include firing or supervising staff. They ONLY allow them to hire employees that have been ‘recommended by the superintendent,’” the department wrote in a fact sheet that it distributed to the media.
Douglas also relied on a separate statute that says the superintendent shall “direct the work of all employees of the board who shall be employees of the department of education.”
Tom Horne, who served as both attorney general and superintendent of public instruction, said the law indicates that the board cannot hire someone without a recommendation from the superintendent. But that doesn’t mean she has the authority to fire anyone, he said.
“That doesn’t say anything about her right to fire. It doesn’t even say that she has the right to recommend that somebody be fired,” Horne said.
Horne said he never provided recommendations during his eight years as superintendent, and instead deferred to the board. Keegan and former Superintendent Jaime Molera also said they did not believe they had authority over the hiring or firing of board employees during their time at the Department of Education.
“It never would have occurred to us,” Keegan said.
The Arizona Department of Education did not initially comment on Douglas’ reason for attempting to fire Thompson and Vasquez. But in her press statement, Douglas made clear that the issue came down to Common Core, the controversial K-12 testing standards that she campaigned against strenuously last year.
Douglas said she is not surprised that Ducey’s office supports the retention of “two liberal staff” who have publicly committed to supporting Common Core. She said they blocked attempts to repeal or change the standards, which the Board of Education adopted in 2010. She also suggested that Ducey supported the AzMerit test that will be used to test students on Common Core standards because he wanted to lower test scores as a way to funnel more students into charter schools.
“Governor Ducey has refused to take calls or meetings with me personally since his swearing in,” Douglas continued. “Clearly he has established a shadow faction of charter school operators and former state superintendents who support Common Core and moving funds from traditional public schools to charter schools.”
Former Superintendent Lisa Graham Keegan, a Common Core supporter who endorsed Douglas’ Democratic opponent in the 2014 election, is a staunch ally of the governor. Keegan and Ducey held a tele-town hall on education issues last week, and did not invite Douglas to participate.
Ducey endorsed Douglas in the general election after she ousted incumbent Superintendent John Huppenthal in the Republican primary.
Douglas vowed to continue fighting Common Core and questioned whether Ducey truly opposed the standards as he repeatedly said on the campaign trail last year. She suggested he’s dragging his feet on appointing members to the Board of Education.
“If he would spend time selecting board members it would also reveal whether he is actually for or against Common Core. Perhaps that is the cause for his reticence,” she said.
In addition, Douglas urged Ducey to appoint “lay persons” to the board and to “bring back African-American representation” to the board. And she accused him of depriving schools “of hundreds of millions of dollars to give his corporate cronies tax cuts,” a reference to his continued appeal of a judge’s ruling that the state had illegally cut K-12 funding during the 2009-2010 budget crisis.
The Governor’s Office did not respond directly to most of Douglas’ accusations, saying only that Ducey was disappointed with her actions. Ducey spokesman Daniel Scarpinato said Douglas’ claim that Ducey has refused to meet with her or take her calls is untrue.
“Governor Ducey is disappointed Superintendent Douglas has chosen this path. His office will continue working every day to improve educational outcomes for every Arizona child, and he hopes she joins that conversation,” the statement read.
Douglas’ office has not said whether it will pursue legal action against the Board of Education or the Governor’s Office. Scarpinato said he’s unaware of any possible legal activity over the attempted firings.
The Attorney General’s Office has declared a conflict of interest for any possible legal action between the Board of Education and Department of Education because the office represents both entities, according to spokeswoman Kristen Keogh. Keogh said the attorney general will advise the offices to hire outside counsel in the event of a legal battle.
“The superintendent of public instruction is an independently elected constitutional officer. The Attorney General’s Office is limited in the information it can provide on this or any other agency legal matter due to attorney-client privilege,” Keogh said in an emailed statement.
A handful of education and business leaders gathered at the Ninth Floor to meet with Ducey and chief of staff Kirk Adams on Thursday morning, prior to Douglas’ statement. Attendees said the governor and his top staffer simply explained their position and emphasized that no one had been fired at the Board of Education.
“The governor discussed the situation from yesterday and just wanted to be really clear with the education community and the business community that this is a constitutional separation-of-powers issue, and he’s acted as such in order to ensure that there’s continuity of policy on the state board,” said Janice Palmer, a lobbyist with the Arizona School Boards Association.
Here is the complete response of Superintendent of Public Instruction Diane Douglas to Ducey’s comments:
Arizona Superintendent of Public Schools Diane Douglas Did Not See Doug Ducey’s Name on the Ballot for State Superintendent
(Phoenix, Arizona – February 12) – Superintendent Diane Douglas today stated, “Governor Ducey apparently views himself as both Governor and Superintendent of Schools. For someone who has spent so much time discussing the plain meaning of ‘or vs. and’ as a justification to deprive schools of hundreds of millions of dollars to give to his corporate cronies as tax cuts, I wish he would use the same precision in looking at the plain language of the law with regard to the powers and duties of the Superintendent of Public Instruction.”
Attached to this press release is a fact sheet which clearly shows the plain language of the Constitution and statutes which give the Superintendent the authority to direct and fire employees of the Board of Education. It is also clear that employees cannot be hired unless recommended by the Superintendent.
“Governor Ducey has refused to take calls or meetings with me personally since his swearing in,” Douglas continued. “Clearly he has established a shadow faction of charter school operators and former state Superintendents who support Common Core and moving funds from traditional public schools to charter schools.
“It is no surprise that his office supports retaining two liberal staff who have publicly stated they will block all efforts to repeal or change Common Core and backs the newly elected President of the Board of Education who is a charter school operator and stands to profit from the Governor’s policy of pushing through AzMerit to lower school scores so that more students can be removed to charter schools,” Douglas went on to say. “I swore to uphold the Constitution and the laws of the State of Arizona with my hand upon the Bible. I take that oath very seriously and will continue to do so. I also promised the voters of the state to replace Common Core and will not falter in my best efforts to keep my promise, regardless of whether the Governor honors his campaign rhetoric to do the same.”
“If the Governor thinks I have to justify hiring or firing at will employees who can be terminated without cause and without rights of appeal, then it brings into question the dozens of agency heads and gubernatorial employees who have been removed and replaced for clearly political reasons. Does the Governor also believe he controls all other elected officials created by the state Constitution? If so, the next ballot should only have one office to vote upon,” the Superintendent stated.
“I wish the Governor would focus on his own duty to fill vacant positions on the Board of Education. We have encouraged him to appoint real ‘lay persons’ and to bring back African-American representation to the Board. Unfortunately, he is remiss to address his own education responsibilities. Despite publicly stating that education is the number one issue in the state. If he would spend time selecting Board members it would also reveal whether he is actually for or against Common Core. Perhaps that is the cause for his reticence,” the Superintended stated.