To: The Office of the Arizona Attorney General

From: Julie Smith

Date: July 7, 2015

RE: School Superintendent Noncompliant with Governing Board Action

I am a member of the Gilbert Public Schools Governing Board and am filing a complaint of legal inaction

taken by the superintendent of Gilbert Public Schools.

On October 28, 2014, the Gilbert Public Schools (GPS) Governing Board motioned and majority approved

board direction to the superintendent, Christina Kishimoto, concerning materials that mention abortion.

The motion was: This governing board directs administration to redact all references of abortion in any

furnished materials given to students as part of any instruction in Gilbert Public Schools that does not

give preference, encouragement and support to childbirth and adoption in the same furnished material.

Administration is to provide an update to the board at the November 18, 2014 board meeting with

details of plan of implementation. (Attachment Number 1)

On December 16, 2014 superintendent Kishimoto provided a plan at the regular board business meeting

as directed on October 28, 2014. The plan of implementation lacked in substance and detail. Some

board members provided feedback to the superintendent’s plan however no motion was made or vote

taken on this discussion. Furthermore, the discussion took place in the non-action portion of the

agenda.

On February 25, 2015 I e-mailed superintendent Kishimoto and board president Lily Tram questioning

why there had been no further formal action taken by the board in relation to the approved motion

October 28, 2014 if there was a desire to rescind and change the direction. Superintendent Kishimoto

responded that she did not believe she was legally bound to the approved motion and had chosen a

different path to attempt compliance with ARS 15-115. On the same day I responded back to

superintendent Kishimoto that it was my opinion that she is legally bound to the motion voted on by the

board and that if a change was desired, the item must be brought back as an agenda item to the board.

Superintendent Kishimoto never brought this topic back to the board. (Attachment Numbers 2 and 3.

Note, GPS E-mail system had been altered so that only my e-mails were able to be forwarded, not the

response of superintendent Kishimoto. The superintendent will need to provide her responses to this e-

mail chain. Furthermore, the old GPS e-mail system was retired in March of 2015 so I am unable to

retrieve these e-mails that I forwarded to my private e-mail account.)

On June 29, 2015 and internal memo was issued to superintendent Kishimoto concerning science

curriculum and biology textbooks. Within this memo is an outline of the staff’s decision to meet

compliance with ARS 15-115 which does not meet the criteria of the approved board motion on October

28th, 2014. No material will be redacted. A copy of this memo was given to the board by

superintendent Kishimoto on July 1, 2015. (Attachment Number 4).

Superintendent Kishimoto has repeatedly shown disobedience to Arizona state statute in her handling

of open meeting law, school district and governing board matters since her arrival in July of 2014. I have

made several fruitless attempts to quietly resolve issues like the one outlined in this memo with

superintendent Kishimoto which is why I am contacting your office. It is my desire to have school

district and governing board matters handled in a manner that are compliant with Arizona state statutes

in order to properly serve my constituency and the people of the state of Arizona. I look forward to your

response.

Respectfully,

Julie Smith

Gilbert Public Schools Governing Board Member

Home Phone (480) 545-0545

Personal E-Mail Address: jlenahansmith@gmail.com

Board E-Mail Address: Julie.Smith@Gilbertschools.net

Home Address: 14029 E. Buffalo St.; Gilbert 85295

MARK BRNOVICH A H ORNEY GENERAL

OFFICE OF THE ARIZONA ATTORNEY GENERAL

STATE GOVERNMENT DIVISION/EDUCATION & HEALTH SECTION

September II , 20 I S

Sent via U.S. Mail and email:

Julie Smith

KEVIN D. RAY SECTION CHIEF COUNSEL

DIRECT No. 602·542·8328 KevIN.RAY@AZAG.GOV

Re: Your Complaint Letters of July 7, 20lS and July 28, 20lS regarding the Gilbert Public School District.

Dear Ms. Smith:

This letter is in response to your two letters of July 7'h and July 28th regarding the Gilbert Public Schools District. I will deal with them separately below.

July 7. 20lS Letter

Your letter inquiry of July 7, 2015, voiced your concern that Gilbert Public Schools District (GPSD) Superintendent Christina Kishimoto is not implementing a Governing Board directive regarding A.R.S. sec. IS-lIS that was adopted at an October 2014 school board meeting. The issue you complain about is not whether GPS is currently in compliance with A.R.S. sec. IS-II S; rather, it is whether the Superintendent has faithfully implemented the directives of the Goveming Board.

The statutory authority to direct the superintendent of a local school district rests with that district' s goveming board. Arizona Revised Statutes sec. IS-503(A) gives the board authority to hire a superintendent. A school board also has the authority to "prescribe and enforce policies and procedures for the govemance of schools, not inconsistent with the law or rules prescribed by the state board of education." A.R.S. sec. 15-341(A) . . And, A.R.S. sec. 15-341 (A)(21) gives a governing board the authority to discipline an administrator whose conduct violates board policies. Thus, your concerns regarding the Superintendent's compliance with GPSD policy and directives should be raised with the entirety of the Governing Board-the Attorney General does not have authority to force the Superintendent to comply with the Governing Board's directives.

1275WeST WASHINGTON STREET, PHOENIX, AZ 85007-2926 • PHONE: (602) 542-1610 • FAX: (602) 364-0700 • WWW.AZAG.GOV

KDR

Name: Julie Smith Re: July Letters Page 2

July 28th Letter

Your July 28th letter advises that the Governing Board adopted a resolution on May 26, 2015, calling for a special budget override election in November, 2015. You allege that the Governing Board 's resolution, however, was invalid because it did 'not comply with the requirements of A.R.S. sec. 15-481. At this point, we are in the process of requesting an expedited response from the Governing Board. Once we have received a response fro m the ' Governing Board, this Office will be able to make a determination as to what action, if any, the Office will take. We will keep you apprised.

Additionally, I am enclosing the findings of an investigation by this office concerning a recent open meeting law complaint against the Gilbert Public Schools Governing Board.

The Attorney General has been made aware of your concerns and appreciates you reaching out to our office. If there is any other way we can be of further assistance, please do not hesitate to contact me.

~,~ Section Chief Counsel

# 4655474

1275 WeST WASHINGTON STREET, PHOENIX, AZ 85007·2926 • PHONE; (602) 542-1610 • FAX: (602) 364-0700 • WNW.AZAG .GOV

MARK BRNovrCK ATTORIIEY GENERAL

Jellllifer MacLelUlan Ollst Roseilfeld

OFFICE OF THE ARIZONA AnORNEY

GENERAL

STATE OF ARIZONA SOLICITOR GENERAL'S OFFICE

Augnst 26, 2015

One East Washington Sh'eet, Suite 1600 Phoenix, AZ 8:S004-~553

CHRISTOPHER MUNNS ASSISTANT ATTORNEY GeNERAL

DIRECT PHONE No, 602·542·6"303

CHRISTOPHER.MuNtlS@AlAO,GOV

Re: Open Meeling Lall' Complalnls agalnsf Gilber'l Public Schools Govel'l1/ng Board

Deal' Ms. MacLeLman:

As you are aware, the Attorney General's Open Meeting Law Enforcement Team

received several complaints, with supporting materials, alleging that the Gilbert"Pnblic Schools

"Ooveming Board (the "Board") violated the Open Meeting Law ("OML"). ".J. T have concluded

my review of the infoJ'UlationjlroYided by the comjllain"r!s and the Board, and set fortIi my

fmdings in this leiter.

Postlllg Notice and Agenda £01' Meetiugs

Several complainants aUeged tilat, in the past, a qUOl'nm of tbe Board has particijlated in

Board reh'eats without posting proper notice or maintaining miuutes or a recording of such

meetings. I Specifically, the Board met for Govel'nanec Board Retreats on August 23,2014,

September 13, 2014, "and March 6, 2015. Atthcse retreats, the Board discussed matters such as

strategic instructional ]lriorities to guide financial modeling for 2015-2016, tiLe structure of

montlily meetiugs, and linking goals to the Snperintclldent Evaluation. The Board posted

courtesy notices for thos"c retreats and asserted thilt they did not constitute meetings under the

"OML. It did not record the meetings or maintain min\Ites of the meeting.

I Some Of the complaints alleged UUlt tbe I30Rl:d pl\rticlpfitcd h\ District Policy meeth~gs inlhe past without posling notice and maintaining a recording oJ'mlnutes. The BOf\rd took action of its own Record to treAl tho meetings as Board meetings Slid now posts notice of the meetings alld keeps A recording of ench meeting It} accordance with the OML.

1275 West Washlnglon, Phoenrx. Arizona 85007-2926 • Phon. (602) 542-3333 • Fax (602) 542·8306

JClUlifel' MacLellnall August 26, 2015 Page 2

Under tho OML, "all discussions, delibel'ations, considerations, or consultatiolls among a

majority of a Pllblic body regarding matters that may foreseeably require a final action or a final

declSioll by the governillg body, constitute 'legal actioll' and, therefore, must be conducted in a

Pllblic meeting 01' execlltivc session," Adz, Alt'y Gen, Op, 75-8, A "[mJeeting" occurs whelt

there is "the gathel'ing, in person or through teclll1ological devices, of a quorum of members of a

public body at which they discllss, pl'opose or take legal action, includiug any deliberations by a

quorum with respecl to such aclion." A,R,S, § 38A3 1(4), The OML l'eqllires that all meetings

ofa public body be held openly where members cfthe public can attend alld listen 10 the

deliberations. All deliberations aud legal actions I'egarding Board business must take place in a

public meeting, A.R,S, § 38.431.0l(A), Meetings of public bodies must also comply Witll the

notice and agenda requirements set fOlih in A,R,S, § 38-431,02 alld the minute taking

requirements lil A.R.S. § 38-431.01(B), In this case, tbe Board violated the OML because it

failed to properly post notice of the meetings at the Board retreats and did not take minutes 01'

, record the meeting as required by the OML,

Disclosure Statement al1(1 Posting ,on the Website

In the course of investigating the complaints against the Board, it became apparent that

there was some confusion regarding the online posting of the Board's notices and agendas for

upcoming meetings, Notices for Board meetings appeared all at least tlu'ee places on the

website, bnt the postings rarely appeared on Olle IDore than one ofthe locations, If a member of

the public checked only 011e loeation, he 01' she would miss tile notice that had been posted at a

different page, Altbougb the BoaI'd adopted policy BEDA specifying a physical posthlg place

and malldating posting ~fnotice on the website, there was 110 disclosure statemeni on the website

identifying the page on the website tbat the public could access to find the notices and agendas

for moctings, Under A.R.S, § 38-431 ,02(A)(2), lhe Board mllst "[cJonspicuousl)' post a

slatement on their website stating where all public notices ofthei r meetings will be posted,

lncludlng the physical and eleclronic locations, and shan give addit ional public notice as is

reasonable aud practicable as to all meetillgs,"

Jennifer MacLennan August 26, 2015 Page 3

Sufficiency ofMillntes

The complainants allege thai the Board did not propedy record in the minutes a

presentation to the Board by the Alliance Defending Freedom at the October 28,2014 meeting.

Although the Board recorded the meetiug and archived it en the website, the prcselltation

occ\ll1'ed dUrillg the "Pre-Meeting Activities,'" which were not recorded. The minllte, for the

meeting record the followillg infonilation: "Presentatioll to Governing Board from ADP .

regarding Campbell Biology Books."

The OMI, reqnires that minntes contain "the names of the persons, as given, making

statcments or presenting material to the public body. and a reference to the legal action about

whicli they made statements or presented material." A.RS. § 38-431:01(B)(4). The minutes

must also contain "[a] general description .of the matters considered." A.RS. § 38-431.0 1(B)(3).

Regarding this requirement, the Arizona Agency Handbook states that U[a]lthough the minutes

do not need to lie a verbatim transcript of the Illeeting to satisfy this requirement, they 111ust

sUlllmarize the discussion, including the topics addressed, and identify all speakers who

participated in the discussion, including members of the public body." Section 7.8.2, at p. 7-17.

III this case, the minutes do not idenilIY the speaker, just the organization to which the speaker

belongs, and do not provide information about the topics addressed beyond repeating the

language of the agenda item. The lnIDutes do not meet the requi.rements oflhe OML.

Proposcd Resolution

I received yom letter dated Angust 5, 20]5 that proposed grounds for resolution of these

complaints and find the proposed measures to be acceptable. Tlms, the Board agrees to do the

following:

1. The Board will cOllspicuotlSly post on its website a disclosure regarding where

posting will oeenr both physically and electrouically. .

2. The Bqard will streamline its website so 'that all board meetings are in one

location .online,

, Althougl! the Agenda uses 1he term "Pre-meeting Activilies/' lIie Board should note that these ncllvitles constItute f\ meeting of the Board under tho OML ifa quorum oflhe Board parliclpflles and thus mllst comply with tho notice, flgenda ilnd miuutes requirements imposed for 1\ meeting.

Jennifel' Ma"LelUlflll August 26, 20 I 5 Page 4

. 3. The Board will post agendas for all board retreats and comply with all aspects of

the OML with respcct to allY Board retreats 01' Board trainings.

4. The Board wil l conduct training for all Clll'rent Board meinDers, tlle Govel'll ing

BoaI'd secretary, the Superintendent and an additional administrator designated by the

Superintendent of at least two hams regarding the requirements ofille OML. The training Illay

be conducted by the Arizona School Boards Association.

S. The Board will submit 10 compleance monitoring for six moilths frolll the date of

execution of this letter agreemellt by the Board, which shall include that tile Board shall sllbmit

all agen.das alrd draft minutes for review by an attorney approved by·Ill(; Altomey Gcneral's

Office prior to posting 0" finalizing.

Please have the authorized representative of the Board execute th is letter agreement in the

space provided below. We appreciate yo\1l' prompt assistance with this matter. Please contact

me if yo~\ have any questions.

Acknowledged and Agreed

Sincerely,

Christoplrer A. Muuns Assistant Attorney General

On behalf of the Gi lbert Public Schools Governing Board ~)':

Name: _ __________ _

Title: __________ _

IN61.f766