Trials And Tribulations

After A Busy Day In Court For Amphi School Board Members, The Recall Election Is On.

TRY AS THEY did, with defiance, then panic, then more defiance, members of the Amphitheater School Board's majority failed this week to wiggle out of the inevitable: recall election on May 16.

And the fate of Ken Smith, half of the Amphi Board's reform wing, was in a judge's hands this week after a hearing concluded on the question of his ability to remain on the Board while his wife serves the district 20 days a year as part of an early retirement package.

Judge John F. Kelly of Pima County Superior Court denied a challenge to the recall petitions and validation process and cleared the way for voters in the 16,000-student district to replace Amphi's ruling majority of President Gary Woodard and longtime members Virginia Houston and Richard Scott.

Bruce Heurlin, a late-entry lawyer for the three (who had initially represented themselves), asked Kelly in a brief hearing Monday to order county Recorder F. Ann Rodriguez to re-examine the petitions against the recall targets.

Heurlin, not one of the small group of Tucson lawyers who handles election matters, alleged the petitions contained faulty notary seals; were improperly filled out for dates and addresses; and contained signatures gathered by an Amphi teacher on school grounds when state law forbids such political activity.

Attorneys for the county and for two of the three candidates challenging the majority downplayed Heurlin's broad allegations, saying that state law generally points to substantial compliance.

Kelly seemed to agree.

"The court has considered all of the reasons set forth in the complaint for invalidating signatures and finds that the statutes should be liberally interpreted in favor of validating the petitions," he wrote in his short ruling released Tuesday.

Recall leaders were pleased, though they anticipate an appeal.

"I think voters want to be able to go to the polls, cast their ballots and move forward," said Ramona Johnston, chair of the Parents As Children's Advocates. "I'm sure they'll continue to fight it, but I think it's in the best interest of the children and the community all the way around to vote May 16."

Heurlin remained convinced that the petitions fell short of the required 5,042 signatures each for Woodard, Houston and Scott. He said he and the three recall targets would discuss ways to reverse Kelly's decision. Options include seeking reconsideration and a full hearing in front of Kelly to an appeal to the Arizona Court of Appeals.

Heurlin condemned the Recorder's Office for doing a "cursory" review and said that a "10-second look" at the statutes and one petition page would result in elimination of 15 signatures. Though the petitions' accuracy was high, the recall group had a slim margin with 5,103 signatures ruled valid against Woodard; 5,104 against Scott; and 5,095 against Houston.

Heurlin presented his abbreviated argument to Judge Kelly at 11 a.m. while Smith's lawyers closed out their fight several hours later in front of Judge Kenneth Lee.

Paula Wilk, a deputy county attorney who handles school matters, had a unique, double role. Though she is the attorney seeking Smith's ouster, something set in motion by Amphi's own legal counsel, Wilk also was forced to defend the recall petitions and the work of Rodriguez, a Democrat in the final year of her second term.

There she met up with an unlikely ally, William Risner, one of the attorneys for Ken Smith, the Amphi board member who is the target of Wilk's removal attempt on the other case. Risner won permission to intervene on behalf of Mary Schuh and Kent Barrabee, two-thirds of the reform slate seeking to replace the Amphi majority. Barrabee witnessed the administration of justice in both cases. Schuh stayed away, as did the third candidate in the recall election, Mike Prout.

Wilk successfully cast further doubt on Heurlin's sketchy case. She was aided, county sources say, by a briefing from Christopher Roads, the former deputy county attorney who now serves as voter registrar under Rodriguez.

She picked apart Heurlin's broad complaints. Exceptions are made for notary seals and what form they are in for recall petitions, she said. Addresses may be completed on petition forms by passers and the prohibition against school officials engaging in political activity on school grounds does not also mean that petitions are invalid, she added.

Risner, confined to a couple of minutes as an intervenor, explained Arizona's passionate history with recall, even detailing President Taft's initial objection to subjecting judges to recall.

Two-and-a-half hours later and two floors lower, before Judge Lee, Wilk was back to her main job over the last four months: presenting the case to bounce Smith from the seat he won as Amphi's second reformer behind Nancy Young Wright.

Wilk struggled to overcome the effective defense staged by Risner and Anthony Ching, who eroded Wilk's case with clipped and to-the-point handling of witnesses.

After a tough session, Wilk pleaded that the County Attorney's Office had no choice but to file the case against Smith. She repeated that there was no exception for the prohibition against a school board member having a spouse on the payroll, but then she offered to open such a door.

"That's not to say that the court or judge could not carve out an exception," Wilk said. "It's within the court's discretion."

First up for Risner was Al Strachan, the former associate superintendent for Amphi who developed the early retirement program that Smith's wife participated in.

Chatty and proud, Strachan told the story of Amphi's woeful condition for teachers and staff when he arrived in 1975 as the man who would create the district's human resource department. The district was plagued by high turnover and "myriad problems," he said.

Strachan, much like Jaeger did last month, explained the early retirement program allowed the district to cut costs. It enticed experienced and better-paid teachers to take retirement and allowed Amphi to bring in new teachers, less experienced, at cheaper salaries.

Under Risner's low-key questioning, Strachan explained in court what had been discussed in Amphi political circles. He availed himself to the early retirement program he created. He performed his necessary work duties. His wife, he said in response to Risner's question, also took advantage of the early retirement offer. And both were in it and performing the necessary service while Strauchan ran for the Amphi Board in 1996.

"You were fortunate," Risner deadpanned, "that you did not have to further volunteer your services."

Even Strachan chuckled. He came in fifth in the five-way election for three seats in 1996.

Had he won a seat, he would have continued in the early retirement program, Strachan testified.

It was Strachan who wrote letters used by Amphi to help employees explain their work situations to the Social Security Administration.

A key part of Smith's case, the letters flatly say that the early retirees are not employees of Amphi and that the money they receive is "in no way connected with any current services provided."

The letters also stated that participants in the early retirement program served as "consultants" for 20 days each year.

Much hinged on the letters when Risner had one of his witnesses explain how the letter was the solution to his trouble in dealing with and getting benefits from Social Security.

Wilk tried hard to downplay the significance of the letters, saying in her stretched-out closing argument that they were simply intended to "accommodate" the Amphi early retirees and to help them.

Judge Lee pounced: "Are you suggesting Amphi sent incorrect information or lied?"

Backpeddling, Wilk responded that Amphi administrators "didn't analyze" the issue or the letters.

Ching used the letters and Jaeger's conflicting testimony last month to undermine Wilk's and the Amphi establishment's case against Smith.

Questioned by Wilk last month, Jaeger said he didn't know who wrote the letters, which were signed by Joan Leslie, then Amphi's employee benefits specialist. But on cross examination, Jaeger blurted out that Strachan authored them.

Ching flatly reminded Lee that such conflicts raise questions about the credibility of Wilk's chief witness.

Ching and Risner also used four early retirees and Andy Morales, an Amphi elementary school teacher and past president of the Amphi Education Association, to underscore the point that participants in the program are not Amphi employees.

It was not without humor, including when one retired teacher, during Wilk's questions about declining certain assignments, cracked: "Well, I have caller ID."

All of them set the foundation for Barbara Smith, who explained her participation in the program and the subsequent work she does for Amphi in tutoring students struggling in math and reading; developing tests; administering tests; and working in volunteer fundraising for school programs.

In Wilk's most aggressive questioning, Smith said she considered herself much like any other parent or volunteer.

Wilk snapped back by asking if parents or volunteers are compensated.

Elected in 1998, Smith has paid $7,000 in legal expenses. His bill is expected to rise as high as $20,000.

Still, he said after the hearing that if Lee hands him a setback, he will appeal.

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