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BISBEE — Superior Court Judge James Conlogue’s ruling during a court hearing Tuesday means the Sierra Vista school district’s 9 percent override can remain on the ballot for the Nov. 4 election.
The ruling was on a lawsuit filed on behalf of Tony Wenc and Ron Murray by their attorney, Sidney Kain, which listed Cochise County schools Superintendent Trudy Berry and the Sierra Vista school board as the defendants.
In the lawsuit, the two alleged the Sierra Vista school district failed to adopt and make public a budget for the 2009-2010 school year, and that it hasn’t provided a copy of such a budget to the state superintendent of schools, thus failing to meet the requirements necessary to pursue an override. They were requesting a preliminary injunction be granted until a final ruling was made.
In Tuesday’s ruling, Conlogue found the school district had done what was statutorily required of it to pursue an override, and that an adopted budget for the 2009-2010 school year was not necessary. In addition, Conlogue said there was an unreasonable delay in the plaintiff’s filing.
  
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During Tuesday’s two-hour hearing in the Division 5 chambers, Wenc took to the stand as the plaintiff’s sole witness. He testified that, in the first 21 days after the school board voted to pursue the override, which it did Aug. 5, he spent time researching the Arizona statues to look into the legality of the override, waiting for the school board minutes from the Aug. 5 meeting to be published online, in addition to discussing the override and the statutes with several other people.
“It didn’t seem like it was done right,” Wenc testified.
Wenc wrote a letter to Berry following those initial 21 days, which he sent certified mail, requesting she cancel the override election in Sierra Vista.
Berry later testified she cannot cancel an election based on a letter from a constituent.
While being questioned by Civil Deputy County Attorney Candice Pardee, Wenc said he did not believe a proposed budget if the override passed, and an alternative if it did not, was presented by Sierra Vista school district Business Manager Michelle Quiroz during an override presentation Aug. 5.
“No, not in my opinion,” he said. “Depends on your definition of a budget … she threw generalities together on what would be and what wouldn’t be.”
He also testified he never approached the district to request to see an 2009-2010 proposed budget if the override passed and an alternative budget if the override failed.
As far as generating a 2009-2010 budget, Quiroz testified there was no way to adopt such a budget and said district officials developed a proposed budget based on estimations done by looking at the district’s five-year history in areas such as attendance, expenditures, etc., as no numbers nor forms are available for developing next year’s budget.
Another defense witness, Lyle Friesen with the Arizona Department of Education, explained how school districts are funded. She said that in order for a school district to draw up a budget for the 2009-2010 school year, they would have to use estimates.
“The numbers are not available and the forms are not available for developing a budget,” Friesen said.
Michael Cafiso, an attorney who represents political subdivisions on various financial issues, testified as a witness for the defense. He had provided legal advice to the Sierra Vista school district as it began the process of pursuing an override.
Cafiso, who said he works with school districts on about three or four overrides each year, said he provided district officials with the same advice he gives to every school district that pursues an override.
School board president Connie Johnson also was a defense witness during Tuesday’s hearing. When questioned by Pardee, she testified as to why she felt the override was necessary, talking about in 2003 when the district had to make cuts similar to what it faces now if the new override fails.
“It was very, very painful to see that happen,” Johnson said, describing cuts that included art, music, counselors and librarians. She said as she reviewed the information presented to her prior to the Aug. 5 meeting regarding the possibility of pursuing a new override “in my mind there was nothing to do but go for the override.”
When questioned by Kain, Johnson testified she did not ask any questions of the proposed budget and alternative budget presented to her in the Aug. 5 meeting before voting to have the override put on the ballot.
During final arguments by the attorneys, Kain said the school board did not have a proposed budget in place that exceeded the aggregate budget, as needed to pursue an override.
He argued that to adopt a budget after an override vote and provide a public hearing at that point is “simply lip service.”
Pardee’s argument stated that A.R.S. 15-905, the one that requires the board to provide a proposed budget for each school year, “is placed into effect after voters have decided they are going to pass the override or deny the override.”
“The school district is not required to do that prior to the adoption,” she said.
Kain countered that “it calls for public input into the initial preparation.”
“What the school district did is wrong,” he said.
Following the arguments, Conlogue said that what the school board is asking voters to determine is whether the district can exceed its aggregate budget.
“Voters are not called upon to adopt a specific budget,” he said. “The district is in no way required to have a specific budget.”
Conlogue then ruled the district followed statute and denied the request for an injunction.
In addition, he ruled the plaintiffs had unreasonably delayed their filing.
“The delay was unreasonable and requires a decision in this condensed format,” he said.
Following the hearing, Johnson said she was “just happy that the override is going on as scheduled.”
“The citizens certainly have the right to decide,” she said.
In a phone interview later in the day, Superintendent Brett Agenbroad said he was “pleased with the outcome at this point.”
“Of course I’m in agreement with the judge’s decision,” he said. “I think he reads A.R.S (15-481) the same way that the area experts that we’ve consulted read it.”
Wenc felt it was a bad decision.
“If you’re voting to allow an increase on a budget, you obviously must have a budget to increase,” Wenc said. “In this case they never had a budget to present to the public.”
Wenc said he felt Conlogue ruled the way he did to “prevent embarrassment” to the school district.
Wenc and Murray have 30 days to appeal the ruling, Murray said, but they had not yet decided whether they would. Wenc said he was not sure it would be necessary.
“I don’t think this override is going to pass,” he said of the override.
Herald/Review reporter Katie Evans can be reached at 515-4611 or by e-mail at katie.evans@svherald.com.
to taxed out wrote on Oct 24, 2008 5:51 AM:
I am sorry that the misinformation you read caused you to vote no (though I suspect that wasn't the cause given the tenor of your comment).
Those are the facts, you can choose to ignore them if you wish. "