State schools chief seeks dismissal of Education Board's lawsuit

PHOENIX — A lawsuit by the state Board of Education against state schools chief Diane Douglas should be thrown out because of legal “gamesmanship,” her lawyer is arguing to a judge.

Steve Tully said the board wants a court to rule that its investigators should be allowed remote access to teacher files. Douglas has said they can have it — but only if they come to her office.

Tully pointed out to Maricopa County Superior Court Judge Arthur Anderson that when Douglas sued the board over similar issues, the panel took the position that these are political questions beyond the reach of a court. And the board even got a different judge to agree.

So now he wants Anderson to rule that the board, in essence, cannot eat its legal cake and have it, too: He is asking the judge to throw out the board’s lawsuit.

The legal fight follows the decision earlier this year by the board to move its employees out of the Department of Education building controlled by Douglas. She sued, asking for a ruling that she controls board employees and the move was illegal.

Maricopa County Superior Court Judge Patricia Starr sidestepped the question, ruling in essence, these were political issues not appropriate for a court to intercede. But Starr said that, given the information she had, she believed the board had done nothing wrong.

That case is on appeal.

Meanwhile, Douglas has told the board’s investigators, who review teacher files while looking at allegations of wrongdoing, that they cannot have remote access.

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Douglas said it’s an issue of security. She also has claimed state law requires them to serve under her direction, including where they work.

Board members responded in September by filing a lawsuit, demanding remote access and that Douglas surrender control of a website the board had used.

Tully said they can’t legally do that because it’s 180 degrees counter to what their lawyers had claimed before.

“Here is the problem: Either all of the votes taken by the board creating ‘policy’ represent justicable questions, or none of them represent justicable questions,” he continued. “Such gamesmanship should not be permitted by this court.”

If Anderson does not buy that legal argument, Tully has a backup in his bid to have the lawsuit tossed. He said courts are allowed to order officials to do something when these are considered “ministerial” duties, where there is no discretion.

In a letter earlier this month to both Douglas and Greg Miller, president of the board, Senate President Andy Biggs and others said they don’t necessarily know — or care — who is legally right. But they want the problem resolved.

Douglas responded that she agrees the issue should be resolved — but on her terms.