December 3, 2015
Dear Judge Bury,
The Tucson Unified School District’s (TUSD) November 20 filing with this court, recorded as Document 1871 of the Fisher-Mendoza case, compels this response.
The statement in the filing, now part of the public record of the case, that the “TUSD Governing Board has engaged the services of an independent investigator to investigate the allegations the [Hicks] letter contains” is misleading. The TUSD board has never held a public vote, or even a public discussion, that could be so construed.
The statement in the filing is, ipso facto, evidence of a violation of A.R.S. 38-341, which is generally understood to require a public vote before any public statement of the board’s will. Perhaps the district’s administration believes that some historical public vote of the board has given it carte blanche to investigate board members in the name of the board, but I do not know when that vote occurred. In the absence of such a historical vote, the district is apparently reporting an illegal decision that a quorum of the board made outside of an agendized meeting or is committing the multiple errors of illegally disclosing a decision that a quorum of the board made during an agendized executive session and presenting that decision to the court as if it were a public action. These three alternatives appear to be logically exhaustive; I see no fourth.
Such issues of state law presumably lie outside the concerns of this (federal) court, but it is important to clarify that, despite the statement in the filing, the corporate public entity that is the TUSD Governing Board has taken no such public action, that I consequently have had no opportunity to vote for or against such an action, and that I am in no respect a party to either the district’s November 20 filing or the investigation that it describes.
I file this letter as one member of the TUSD Governing Board, not representing the corporate entity. As far as I know, I never received notice from the district of the November 20 filing, hence the delay in this response.