Try, Try Again

Ken Smith Gets His Day In Court -- But Resolution Is More Than A Month Away.

KEN SMITH'S WALK in limbo has been extended six weeks, prolonged by scheming political opponents, an obdurate Pima County attorney, and a crowded Superior Court docket.

Smith, half of the Amphitheater Unified School District Governing Board's reform package, returns to the courtroom of Judge Kenneth Lee on March 27 to complete a hearing on whether state law -- forbidding school board members to have a spouse working in the school district -- applies to him and his retired wife.

Deputy County Attorney Paula Wilk and Amphitheater administration believe Smith forfeited the seat he won in 1998 because his wife Barbara works 20 days a year as a requirement to the district's early retirement program she accepted more than three years ago.

In a three-hour hearing Monday, Smith's lawyer, Anthony Ching, chipped away at Wilk's and Amphi's case and their star witness, Todd Jaeger, Amphi's in-house legal counsel and lawyer for the Board.

"It's strange," Smith said following the first round of court action. "I am an officer of the district and he is supposed to be my lawyer, but he is the one after me. He's their key witness."

Pending the decision, Smith is abstaining from any Board votes, something he has done since he was first challenged in November.

Led by the diminutive Wilk, Jaeger, who sports fancy suits despite his great girth, opened in an almost melodramatic tone when he explained how he and Joan Leslie, an Amphi human resources administrator, "discovered" that Smith's wife was on the payroll.

When the two first checked phone numbers for the two Smiths and saw they were different, "we breathed a sigh of relief," Jaeger said. That prompted a laugh from a band of Smith's supporters, including fellow Board member Nancy Young Wright, that listened to the testimony and believe Amphi's board majority and administrators are simply out to get Smith.

A little later, Wilk and Jaeger sought pathos. What issues, Wilk quietly asked, could arise if a board member had a spouse working in the district?

Jaeger bemoaned a host of problems when a district administrator attempts to supervise the spouse of his or her supervisor. Worse yet, what happens if there is need for discipline?

As he spoke, John Richardson, a lawyer who is representing Jaeger and other district officials, leaned forward in his gallery seat directly in line with the witness stand. Richardson is a member of DeConcini McDonald Yetwin & Lacey, the Tucson firm that has built an empire off taxpayers via contracts with Amphi, the Tucson Unified School District, Sunnyside Unified School District and others.

Obviously left out of Wilk's questioning was the manner in which Amphi dealt with other conflicts: such as Board Member Virginia Houston signing her daughter's contract as the district's purchasing director. While state law specificially bars one from working in a district where the spouse is on the governing board, conflicts on other relatives are left up to a more general section of law on conflicts of interest. Houston also has a daughter who teaches for Amphi.

At one point Wilk inflated the potential for a conflict of interest, suggesting that the Board could at any time alter the early retirement program that includes Barbara Smith.

But Jaeger actually undercut the position when he explained such a vote in May 1999 modified the early retirement program to require that participants work 10 days -- half of their annual schedule -- as substitute teachers.

Moreover, the County Attorney's Office has consistently stated, for the Board of Supervisors and school boards, that such votes for an entire class of people do not present a conflict of interest.

For Smith and his supporters, who have created a legal defense fund, Wilk set a tone of doubt from the outset when she said that although her office believes Smith did not intentionally do anything wrong, the County Attorney had no choice but to seek his ouster in court. There is, Wilk said, "no discretion."

Smith and Young Wright were astonished. Other conflicts in Amphi, in personnel and in real estate deals, have not been reviewed.

The County Attorney's Office also did nothing in 1998 when parents in the Baboquivari School District in Sells sought to oust a Board member, Malcolm Escalante, in part because he didn't live in the Baboquivari district. He lived in Tucson so his kids could attend schools in the Amphi district.

Wilk and Amphi's Jaeger also seemed to stumble on letters Leslie wrote to the Social Security Administration concerning participants in the early retirement program.

These letters state that the retiree "must make himself available as a 'consultant' 20 days each year provided the district desires to use his services. The monies received are in no way connected with any current services provided by" the retiree. "In other words, the total sum received by (the retiree) under the early retirement plan is based on his prior service with the district."

Jaeger, who joined the Amphi team after five years as counsel in TUSD, testified that the letter "was authored for Leslie."

Ching later zeroed in during cross examination, challenging Jaeger if he knew who authored the letter.

"Are you changing your testimony?" Ching asked, before Jaeger said that Alfred Stachan, Jaeger's predecessor, wrote the letter for Leslie. Jaeger said he disagreed with some of the information in the letters and subsequently ordered Leslie not to use those letters.

As with any case dealing with paper, much of the hearing was devoted to the dull minutae of the components of check stubs, benefit payments and shares. So tedious was the cross examination that Wilk struggled to keep her head straight as she took a severely tilted posture resting her head on her right hand.

The contention by Ching and Smith's other lawyer, Bill Risner, that his wife's amount of work was insignificant was bolstered by testimony from Donald C. Rohan, the assistant director for external affairs for the Arizona State Retirement System.

Rohan said several times that 20 days of work a year was insignificant, and in response to Wilk's question, said that it did not amount to re-employment.

"You could call it that," Rohan said. "We do not call it that."

A key, Rohan said, was a retiree's actual separation from the district -- some space between retirement and work under the early retirement program. Participants are required to work 20 days a year for a maximum of 10 years and a maximum of 200 days but not beyond their 65th birthday. Rohan said it could be problematic, for example, for someone who opts for early retirement to immediately start serving the required days and to continue in the first year for much more than 20 days.

"Twenty days is OK. How much further? I don't know," said Rohan, a clear, direct speaker and prototype bureaucrat.

There have been early retirees who seek to get the 200-day requirement completed as soon as possible by working the full first year of 185 days. Payments are structured differently for that option and, theoretically, the retiree would then have nine years to complete the remaining 15 days.

Smith, who said he feels "persecuted" by political opponents including Amphi administrators who contributed money to his campaign rivals, will take the stand March 27. Ching said he might call three other witnesses.

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