TUSD's Cover-Up Caper

Here's The Poop On The 'Star's' Would-Be Sex-Harassment Scoop.

By Chris Limberis

THE TUCSON UNIFIED School District is spending thousands of tax dollars to try to cover up sexual harassment complaints against longtime administrator Ed Arriaga.

With approval from TUSD Board President Joel T. Ireland, district lawyers took the unprecedented step last week to get Pima County Superior Court Judge Kenneth Lee to block The Arizona Daily Star from publishing the details of the claim and nearly $18,000 settlement arising from Arriaga's alleged harassment of compensation and benefits manager Sue Carda in 1996.

The Star received the material anonymously in the mail midsummer. The Weekly also received a packet of material from the Carda case anonymously.

Currents Arriaga, 53, has denied any wrongdoing. Lawyers for TUSD have worked hard to keep his name and the allegations secret, including having outside counsel Grace McIlvain win a concession to keep his name from the final settlement agreement.

Documents show that Carda began complaining about Arriaga's behavior nearly two years ago.

She reported that she was afraid of his physical contact.

According to Carda's complaint, Arriaga, then TUSD's executive director of human resources, called her in for a meeting in his office at 5:30 p.m. on September 18, 1996. As she was leaving after receiving some papers, Arriaga allegedly came up behind her and put his arms around her, restrained her and kissed her with his lips on the back of her head. Arriaga, the complaint alleges, also said, "I really would like for you to be able to come to these out-of-town conferences with me, but I don't know what your situation is like at home."

Carda confronted Arriaga five days later and told him the only acceptable physical contact was a professional handshake. Papers show that she believed Arriaga made improvements for the next three weeks.

But On October 18, Arriaga invited Carda and another human resources employee, Karen Mejia, to lunch at Micha's on South Fourth Avenue. As the three finished, Arriaga allegedly placed his hand on Carda's knee and patted it as he told Mejia about Carda's job, according to the papers. He later allegedly put his arm around Carda.

Carda, 41, filed a complaint with the state Attorney General's Office Civil Rights Division on November 25 and was told to first file with TUSD's Equal Employment Opportunity Office, also called the Equity Development Office.

Mike Tully, a TUSD lawyer who was then the equal opportunity officer, conducted an investigation and said in a December 12, 1996, report that there was not cause to believe Arriaga sexually harassed Carda.

In March 1997, Carda filed a claim against TUSD alleging sexual harassment by Arriaga. Despite repeated denials, TUSD settled and rushed to keep the matter secret.

Judge Lee, in his second year on the bench, did what TUSD's lawyers wanted. He issued a temporary restraining order last week that equates to prior restraint, which the U.S. Supreme Court has consistently ruled is a violation of the First Amendment guarantees of freedom of speech and freedom of the press. The Arizona Supreme Court also has ruled that the state constitution forbids prior restraint.

It's not as if prior-restraint cases are obscure. Included is The New York Times vs. U.S. case in 1971, in which The Times obtained and published the "Pentagon Papers," detailing how the government was prosecuting the Vietnam War. Courts have been loathe to restrain before publication even the most objectionable material, as in the virulently anti-Semitic trash that formed the basis of the 1931 Near vs. Minnesota case.

The Star appealed but did not defy Lee's order. The Arizona Court of Appeals on Monday announced it would not hear arguments until Lee made a final ruling, which was expected this Thursday, September 24.

Lee agreed with TUSD's lawyers that the documents should be secret, reasoning they're protected by attorney-client privilege.

"What's more fundamental than the attorney-client privilege?" Lee asked, completely ignoring the First Amendment.

TUSD Superintendent George Garcia and Ireland, an Episcopalian priest and insurance case lawyer, got what they wanted: To keep the Star's TUSD reporter, Sarah Tully Tapia, from writing about the packet of information that detailed settlement discussions and Carda's complaints against Arriaga when he was her boss as TUSD's executive director of human resources.

It's a job that Ireland and his colleagues elevated Arriaga to after he and two other Rincon High School administrators were accused of harassing Rincon teacher Paula Morris. That case cost TUSD taxpayers $50,000 to settle in 1996.

Arriaga, a TUSD employee for 30 years, abruptly retired last year. Beset with financial problems and a recent bankruptcy, Arriaga now is serving as interim principal at Sahuaro High School. He and his wife, Mary Agnes, a 50-year-old real-estate agent, are entangled in another legal web spun with allegations that she mishandled assets and misspent and improperly allocated money from her aunt's estate, for which she is the executrix.

The Arriagas listed $380,025 in assets and $166,044 in debts in their September 1, Chapter 13 filing in U.S. Bankruptcy Court. Included are debts to several law firms in the pending litigation and anticipated, but unspecified payments to two of the aunt's heirs. Among the couple's consumer debt is $362 to Victoria's Secret.

A former principal at Tucson High, Arriaga is a particular favorite of TUSD Board Member Gloria Copeland, who has a child at Sahuaro High. Copeland told the Tucson Citizen last week that Arriaga "brought a breath of fresh air to that campus." Leaders of an organization of Sahuaro parents do not agree and are glad that Arriaga took himself out of the running for permanent appointment.

BUSY WITH a panoply of protests at last week's meeting of the TUSD Board, Tully Tapia found time to ask Ireland about the Carda settlement. Ireland promptly demanded an investigation into how Tully obtained the documents.

"Somebody broke the law to send them," Ireland told Tully Tapia. "My guess is that some board member who has a beef against someone sent them."

TUSD's hired gun John C. Richardson, of DeConcini, McDonald, Yetwin & Lacy, went so far as to accuse Tully Tapia of obtaining the documents "through improper or illegal means."

When it comes to reporting on TUSD, it may now be against the law to open your mail.

Star lawyer Phil Higdon replied in court papers that Tully "received the material in an unmarked envelope through the U.S. mail. Ms. Tully asked no one at TUSD to send her this material, was told by no one at TUSD the material would be sent, and has no idea who sent it."

In a brief conversation, Carda told The Weekly that she was mortified that details of her supposedly confidential settlement and complaint were being leaked.

"Based on what I've been reading in the papers, it's obvious that TUSD is violating the settlement agreement by leaking the details," Carda said.

Carda refused to discuss anything to do with her complaint or the settlement.

The great irony in TUSD's vigilance is that the Carda-TUSD agreement warns that the details may have to be released to the public:

"The parties acknowledge that TUSD may be required to disclose this agreement and or some of its terms because of TUSD's status as a public entity and pursuant to the Arizona Public Records Act, the Arizona Open Meeting Law, state auditing proceedings, or in response to judicial or other legal processes."

Tully Tapia, a journalist since a teen and a 1994 graduate of the University of Arizona, has covered TUSD for three years. She is a member of a pioneer Tucson family, and a distant cousin of Mike Tully, the TUSD lawyer who initially investigated Carda's complaint.

The papers show that Carda and her husband signed an agreement on May 8, 1997 that awarded her a settlement worth nearly $18,000. Of that, $12,500 was for emotional distress. She also received $400 as reimbursement for related medical expenditures and won back about 170 hours of sick time worth more than $3,000. TUSD also agreed to pay Carda's lawyer, Cynthia Kuhn, $2,000.

Ireland signed the document six days later. And Tully Tapia has been on the hunt for details of Carda's complaints against Arriaga ever since the TUSD Board approved the settlement in secrecy.

The Star asked for TUSD's records of all sexual harassment investigations and any records of disciplinary actions against employees since 1995. TUSD then gave two years worth of records to Superior Court Judge Gilbert Veliz.

He concocted bad law that Star editors and the Star's St. Louis-based Pulitzer parent company let stand. Veliz's ruling allowed TUSD to keep the documents secret.

Release, Veliz wrote on March 23, "would have a chilling effect on the investigative and remedial process and discourage participants from cooperating so as to arrive at an expeditious and constructive solution.

"Public disclosure of sexual harassment investigations carries, for all participants, a substantial risk of unreasonable injury to their personal and professional reputations," Veliz wrote. "Those in the system know this and the benefits the public receives from the present system of early identification, investigation, and remedial action, if warranted, would break down with public disclosure."

Finally, Veliz said that to release records with names stricken "would lead to a flurry of speculation and innuendo as various parties and entities tried to fill in the blanks. All of this would be to the detriment of the school district, its personnel, and the public which the district serves."

Judge Lee, described by some lawyers as the "brains behind" the Burt Kinerk law firm, was appointed by J. Fife Symington III in April 1997, before the Republican governor was convicted in federal court on multiple counts of fraud.

Lee was eager to rely on Veliz and TUSD's lawyers. It's an eagerness to support the establishment that Lee has shown in his brief tenure on the bench. In May the Court of Appeals unanimously overturned Lee's decision prohibiting the City of Tucson from regulating billboard lights. The city code was designed to prevent light pollution and protect conditions for southern Arizona astronomy. Lee also issued rulings in a "lemon-laundering" case that benefited Ford Motor Co., and he threw out a suit filed by a Tucson cop who was served a bloody burrito at a nationally franchised taco stand. TW

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