SHE'S NOT THEIR CUP OF TEA

ONLY IN THE MADISON SCHOOL DISTRICT COULD A PERSONAL SQUABBLE END UP IN COURT

After hearing so many monstrous things about Carolyne Berry, seeing her is a letdown. Watching the Madison School District board member fidget through a meeting, it's difficult to imagine how she came to be the object of so much ire.

She doesn't look much different from the rest of the board or most of the parents who generally attend Madison School Board meetings: light-brown, bobbed hair, tasteful jewelry, reading glasses perched on her nose as she makes her way through piles of documents.

But make no mistake--Berry has single-handedly unified a significant portion of her constituents. They are unified in their disdain for her.

Her detractors--many of them members of the Junior League of Phoenix--have worked zealously to portray her in an unflattering light. She has been accused of browbeating Madison teachers and staff, of disrupting board meetings with confrontational questions and negative comments, of driving fellow board members out of public service, of using the letterhead of her husband's law firm to threaten and intimidate her foes.

When her board colleagues sought to have her investigated and possibly censured, she sued them--and won.

That might sound like spirited gamesmanship, but such hardball tactics don't sit well in the exclusive Madison School District, where civility is next to godliness.

When the Madison School Board met in early January to elect officers, Berry was long overdue to serve as president. She has seven years' experience--far more than the other four members. But Berry isn't president. Never has been president. Never will be.

Her enemies wouldn't allow it. They are long on complaints and short on substance. Her indiscretions are never actionable. So she stands accused of--well, of being bitchy.

Madison Elementary School District No. 38 is a place in which public officials, high-powered lawyers, a trained theologian and the president-elect of the Junior League throw the book at one another and send the bill--$33,000 and counting--to the schoolchildren of Arizona.

The district is one of the oldest in the Valley, and normally one of the quietest. By design. With territory reaching into some of the wealthier pockets of north-central Phoenix, the district's schools educate the children of prominent doctors, barristers and community leaders with an air of efficiency and gentility.

"Madison," says the school district's attorney, Charlie Herf, "has been a very sophisticated district."
Sophisticated and nice. If there's a disagreement about school governance, it's usually settled quietly and properly. Since 1990, 14 recall elections have been held in Maricopa County school districts. District officials say there's never been a recall election in Madison. Emotional confrontations are rare.

So when parents began to grouse about the conduct of board member Carolyne Berry, Herf says, the district and board devised a way to "avoid the kind of publicity that other districts have gotten because they'd had exchanges between board members at public meetings and some conduct that wouldn't be considered civilized in Madison."

The school board hatched what has become known as the Procedure, voting unanimously to grant itself the right to investigate and censure its own members. But when the board tried to investigate Berry, she sued. A Superior Court judge ruled in her favor.

This costly imbroglio has simmered in a district that was forced to cut its 1993 budget by more than $325,000--eliminating such frills as K-4 art, early and late bus runs and districtwide sports. This year, in anticipation of further cuts, the board is considering increasing class sizes, eliminating assistant principals and cutting back on librarians and nurses.

Nonetheless, three of the board's five members--Paul Harter, Laurel Ann Karpman and Bob Foster--have voted to pursue an appeal of the ruling in Berry's lawsuit. They justify their decision by noting that most of the legal tab has been picked up by a trust that gets its money from school districts around the state.

Legal heavyweights have taken sides. Berry's got her husband, insurance attorney Rick Berry, and Roxana Bacon, an attorney with Bryan Cave. Both are providing their services pro bono.

Representing the board is the district's attorney, Charlie Herf of Quarles & Brady. Don Gaffney of Snell & Wilmer and Tom Pickrell, legal counsel to the Arizona School Boards Association, are backing the board as well.

With the exception of Herf, all of these attorneys happen to be parents of Madison students.

Tim Hogan, director of the Arizona Center for Law in the Public Interest--also a parent of a Madison student--has watched from the sidelines.

"I think we all like to have this feeling that, gee, if only we were running things--either in Washington, D.C., or at the state level or at the city level--things would somehow be a lot better," Hogan says. "If we can't handle running our school districts and our schools through the friends and neighbors that we elect, I'm a little less optimistic about the future."
A Phoenix native, Carolyne Berry graduated from Central High School and Arizona State University. Then, she says, she left for Los Angeles to teach. Seven years later, she returned, married Rick Berry and settled in central Phoenix. She works as an assistant in her husband's law firm. The Berrys have two daughters in Madison schools. Berry wants people to know she's connected. In the first five minutes of conversation, she drops the names of former governor Jack Williams and the Babbitt family. She knows every Democrat in town, she says.

In 1986, Berry heard that no one was running for the Madison School Board; she took out petitions, and won. (Six others eventually joined the race.)

Even her harshest critics concede that she's intelligent and crafty. Berry took to her new post quickly--tackling, she says, the challenges posed by creeping economic disparity in the district.

Meadows Middle School and Simis Elementary School retain the upper-crusty Madison image. Madison No. 1, Rose Lane, Heights and Park schools have seen an economic decline. One-third of the district's students qualify for free or reduced-price lunches, including 80 percent of the students at Park Elementary. (To qualify for the federal free-lunch program, a household of five people must have a gross monthly income of less than $1,800.)

Berry says she's the target of a hate campaign because she fought for the resignation of then-superintendent Bill Schaefer--who, she says, refused to represent the less-advantaged schools in the district.

"You can be chapped off with me because I got rid of the superintendent," she says. "But I didn't break any law, and I didn't break any policy."
Carolyne Berry's attorney, Roxana Bacon, calls the anti-Berry movement a "witchhunt." Perhaps Berry has cast a magic spell over the community--convincing people she has the power to fire secretaries, district officials and her children's teachers. She's been accused of all of that and more.

But for all their sophistication, Berry's foes forget that a school-board member has no legal authority outside the boardroom.

"She carries a power which isn't real, but which is nonetheless there," insists Scott Gardner, a Park school parent, who served on the Madison board with Berry from 1988 to 92. He says Berry was a "major factor" in his decision not to seek reelection.

"My experience on the board would have been one with very few sad times were it not for the presence of Mrs. Berry. . . . We weren't able to get through agenda items without caustic things coming up and adversarial feelings--it gets to where you can't get through agenda items quick enough and address problems that affect children," Gardner recalls.

Berry's detractors say it isn't the mere fact that she disagrees, but the manner in which she disagrees, that makes her so offensive. "You have to feel her wrath to understand how it makes you feel," says longtime foe Chaunci Aeed, who, when pressed, is at a loss to explain just what it is that Berry has done.

Catching Berry breaking a rule hasn't been easy. People have been trying for years.

Ken Rhoades, a 24-year veteran of the Madison district, teaches eighth-grade language arts at Meadows. In 1991, inspired by what he saw as meddling by Berry, he convinced 23 teachers to sign a letter to the board, urging it to limit direct contact with teachers and principals and asking trustees instead that they go through the district superintendent. The letter was about Berry, though she wasn't named.

"Because a Board Member is such a 'heavyweight' in our District, such contact is an extremely stressful experience for the individual staff member--and for staff members as a whole," Rhoades wrote.

When asked, Rhoades can't name a single situation in which Berry has been responsible for a district staff member's termination. Or, in fact, in which she's done anything more than speak to staff members.

Madison parent Sandi Long has been hearing Berry stories for years, and has had unpleasant run-ins herself with Berry, but there's nothing she can put her finger on.

"Some of it's founded and some of it's unfounded. You know how some things get rolling sometimes," says Long, who refused to sign a petition calling for an investigation of Berry's behavior.

"If I, personally, actually had the documentation or I could even testify to a particular instance when I thought she had been out of line, either ethically or legally, then I would have had more of a go-ahead attitude," she says.

Tales of Berry's antics aren't as interesting as the response she engenders.
Dan Maynard, a partner at the law firm Johnston, Maynard, Grant & Parker by day and "commissioner of basketball" for a youth league by evening, wrote Berry on his firm's stationery in January 1993 after hearing that Berry had asked a janitor to open a school gym 15 minutes earlier than the league and the district had agreed to.

"It is my understanding," he wrote, "that you have approached the janitor and the facilities representative and demanded that they open the gym at 5:30 p.m., telling them that you are a member of the school board." Maynard told Berry to "desist such activity."
That opening shot triggered a six-month volley of rancorous letters between Maynard and Carolyne and Rick Berry. In the end, Maynard demanded that the school board investigate Carolyne Berry's actions.

State Representative Susan Gerard, who worked with Berry for a time at the state Department of Education, says she receives calls all the time from people who say they've been crossed by Berry.

"It is all hearsay and feelings," says Gerard, shrugging. But she adds, "The problem with Carolyne is that when she doesn't get her way, she goes out after people to get them instead of trying to build coalitions. . . . She thinks she can just power it through."
People complained about Carolyne Berry for a long time before anybody bothered to organize. That happened in the spring of 1993. Berry blames Chaunci Aeed and Aeed's friends from the Junior League.

The Phoenix chapter of the Junior League, founded in 1935, was once thought to be an organization of rich, white women who wore hats and gloves and sipped tea. Despite its long and impressive record of public service, it's still thought of that way. Membership has been "wide open" since the mid-Eighties, but a patina of exclusivity lingers.

Berry never had the desire to join, she says. "It doesn't speak to me. It doesn't speak to the real world. . . . My heart speaks to me of people who don't have voices," Berry says.

She believes some Junior Leaguers want to exclude her from school politics. Names of Leaguers pop up again and again on petitions and in conversations about the anti-Berry movement. Aeed, whom Berry bested in the 1990 school-board race, begins her term as president of the Junior League of Phoenix in May; League member Rita Dickinson is widely acknowledged to have passed on a school-board reelection bid in 1992 because of differences with Berry.

Coincidence, Aeed scoffs. Junior League members tend to get involved in their children's schools, so they've had the chance to see Berry operate. "Certainly," she says, "there are people involved in the parent groups that aren't in the Junior League, but there aren't very many of them. Because that's the way Junior League members are. We see a need and we fill it."

Aeed's youngest child is a high school senior; she says she hasn't been privy to the day-to-day activities of the Madison district for years. She has, however, followed Berry's career.

"Carolyne Berry is one of the brightest, most intelligent people I know, and has the ability to do--and has done--some tremendously positive things for the district," Aeed says. "But she's just a very hating person."
Aeed says she called Berry to congratulate her on her election victory in 1990, and "she basically told me to eat shit and die."

Berry says she was angry because she believed Aeed did not follow the rules of decorum at a candidates' forum, and packed the audience with her Junior League friends.

Aeed and Dickinson aided the defense of state Superintendent of Public Instruction C. Diane Bishop after Bishop was sued by a woman who claimed she was fired because she wouldn't perform campaign tasks for Bishop on state time. Berry, who worked for Bishop during that time, testified that she had received similar treatment from the superintendent. Dickinson also testified, calling Berry's credibility into question during testimony. Aeed pulls a news clipping about the trial from a file. The article recounts Bishop's testimony, in which she called Berry "abrasive, intrusive, manipulative, untruthful, uncooperative, rude and demeaning of others."

The attorney for the fired employee subpoenaed all of Aeed's Junior League directories from 1988 to the present. He refused to comment on the reasoning behind the subpoena. Aeed had the subpoena quashed, and never testified in the case. @rule:

@body:In her legal pleadings against the Madison board, Carolyne Berry repeatedly accuses Chaunci Aeed of organizing the 37 people who would sign petitions and letters seeking a probe of Berry's conduct. But it wasn't Aeed; it was another Junior Leaguer and Madison parent, Joyce Buekers, a seminary student who says the whole episode was so disturbing that she eventually turned the matter over to God and has tried to go on with her life.

In the fall of 1992, Buekers was shocked to learn that there were just three candidates running for the three open seats on the Madison board. So she quizzed parents, teachers and administrators to find out why. Buekers says she found the district paralyzed by fear of Berry.

Buekers says parents told her Berry wrote to them on her husband's legal stationery, threatening to sue; district personnel told her Berry had threatened their jobs; teachers told her Berry barged into their classrooms, disturbing their lessons.

One of Buekers' recruits was Chaunci Aeed, who says she agreed to help because "Joyce wanted to make the Madison School District a happy place to be."

So Buekers formed the Madison District Support Group--designed, she says, to encourage parent participation at board meetings and to create a more positive attitude. She created "communication logs," asking parents to document inappropriate board-member activities. (It should be noted that many of the people on the support group's membership list did not sign petitions calling for an investigation of Berry.)

Later that fall, Buekers presented the school board with a document broadly outlining her concerns, but not naming names. By spring 1993, Buekers says, she and Berry had clashed--loudly--at a school basketball game. Buekers chided Berry by name at a school-board meeting. Berry wrote to Buekers on her husband's legal stationery. And that was just the beginning.

Berry, meanwhile, says she was clueless. She barely knew Buekers; their children attended the same school and had, in earlier years, played together.

"No one ever called me," Berry says. "If I'm such a hindrance, my name's in the book."
As Buekers sits in her home and sifts through the box of Berry-related documents she has amassed, her preteen daughter turns up the soundtrack to The Sound of Music. Mom hums along as she sips cinnamon-apple tea and flips through piles of pages filling a cardboard box perched on a coffee table. She offers to give away original copies of letters and lists of names. Keep the originals, she says; she'd rather not be reminded of the ordeal ever again. In fact, she now says, she's convinced Berry will sue her. "I'm not normally a paranoid person," she says, choking up. But "this woman terrifies me." And the hills are alive with the sound of music.

After Joyce Buekers rallied the troops, the next logical step in most school districts would have been to organize a recall. In fact, Buekers invited David Lerner--the mastermind behind last year's successful recall of Washington School District board member Bob Hill--to speak last April at an "ad hoc" meeting of the District Support Group.

The "ad" part of "ad hoc" turned out to be "ad"ministrators. Among the ten people in attendance, according to Buekers' typed minutes, were acting superintendent Frank Canady, Simis principal Joanne Johnson and Rose Lane principal Margie Kesler.

Canady confirmed that he attended the meeting. Johnson did not respond to calls from New Times. Kesler, who now works for another district, refused to comment.

After listening to Lerner's tales of grueling hours and bitter debates, Buekers decided she lacked the energy for a recall. Aeed warned the group of Berry's possible recriminations. But the real clincher, parent Sandi Long admits, was the idea that they might lose.

"If you don't defeat somebody," she says, "you've crowned a queen."
Buekers and her Madison District Support Group were not at a standstill for long. R. Robert Jones took the helm in May as the district's superintendent. He recalls that parents came to him on his first day on the job, bursting with complaints about Berry.

"I'm the only one the board hires and fires. . . . I was a little uncomfortable" approaching Berry about her alleged behavior, Jones admits.

He had been expecting some peace and quiet after a stint as an administrator with the Deer Valley schools--which made headlines in 1992 when the superintendent used hidden cameras to try to capture a principal's alleged sexual antics on tape. But Jones didn't have to approach Berry, because he, Herf and the board itself collaborated on the Procedure, a policy to control public outbursts by allowing the board to investigate and censure its members.

The board gave its unanimous approval on June 8.
Complaints about Berry started trickling in, just days after the Procedure was enacted. Petitions and letters with a total of 37 names (many signers were Junior Leaguers and their spouses) converged on Jones' office. An investigation was demanded.

In letters addressed to Jones, Madison parents David and Martha Lee complained that Berry had visited their daughter's classroom and disrupted her work; another parent wrote that Berry had tried to convince him to complain about his child's teacher.

Berry responded that her board position doesn't strip her of her rights, as a parent, to visit classrooms during observation times or to speak to other parents about teachers.

The rest of the complaints consisted mainly of allegations that Berry intimidated and threatened district staff and parents with her husband's legal stationery and her sharp tongue. Buekers complained of verbal abuse, intimidation of teachers, sharing of confidential board information and interference with Canady's work.

Aeed's allegations dated to 1988, and included charges of verbal abuse, the use of Rick Berry's legal stationery and failure to get signatures on nominating petitions Berry circulated in a 1990 election. She says Berry lied in 1991 about Aeed's involvement in a political campaign. Berry denied the specific allegations, and said others were too vague to answer. To Aeed she wrote, "During my seven years on the Madison Governing Board Ms. Aeeds [sic] has made a vocation of tracking my whereabouts as a private citizen of the community. . . . Ms. Aeeds needs to move on with her life and get over losing the election." As for Buekers: "She has provided no specific information nor are her statements truthful. Fortunately, the citizens of the Madison community are now keenly aware that Ms. Beukers [sic] has a history of making untruthful statements while attempting to hide behind the cloak of Christianity." @rule:That was not Berry's only response to the news that she was being investigated.

In an about-face, she announced that she had researched the law herself and had discovered that Herf had given the board bad advice regarding the Procedure. State law does not specifically grant the board the right to investigate and censure its own members, and therefore the right did not exist, she told Herf and the board. Herf maintains that the Procedure is legal.

Berry now says, "The bottom line is . . . the legislature doesn't give the school boards any authority to do this stuff, basically because they realize that most of you [school-board members] have never gone to college, most of you are extremely uneducated and unsophisticated and you could get yourselves chasing the tail forever and not concentrating on what your legislative authority is, which is running the schools."

Board member Mindy Mackey concurred with Berry, and requested a written opinion from the Maricopa County Attorney. (The request was made, and deputy county attorney Dean Wolcott responded in July. He declined to provide the opinion, because the district had already retained Herf as private counsel and was, by that time, in litigation.)

Berry threatened to sue the other three members--Harter, Karpman and Foster--if they refused to repeal the Procedure and call off the investigation.

They refused. So for the first time in the memories of even her staunchest detractors, Carolyne Berry followed through on one of her threats. She sued the Madison School Board.

Instead of playing itself out as a recall with clipboards, petitions and doorbell-ringing, the anti-Berry drama--replete with piles of legal briefs and legal bills--moved south to Central Avenue law firms and Maricopa County Superior Court. So far, Berry has triumphed. Maricopa County Superior Court Judge Robert Gottsfield issued a temporary restraining order in July, prohibiting the board from investigating or censuring Berry. Herf then filed a special action asking the Arizona Court of Appeals to intervene; the court refused to consider the case.

In September, Gottsfield granted Berry's motion for summary judgment, permanently prohibiting the board from implementing the Procedure or another method like it. Harter, Karpman and Foster voted in October to appeal the decision. Mackey, who was not originally named as a defendant but was ordered added by the court, voted against an appeal.

Herf filed the appellants' opening brief last week. The appeal process typically takes up to three years, but Herf has requested an expedited consideration; a decision could come as early as this summer, he claims.

Herf doubts the case will have far-reaching implications. "I think everybody thought they could do this if they wanted to before the Madison issue came up," he says.

Jim Ullman, a member of the Arizona Board of Education and a Phoenix attorney who specializes in school law, has studied Berry v. Foster from an academic angle. He hasn't found any case law that directly supports the board's case, but "frankly," he says, "I think it would be helpful for a school district to have this authority" as long as free speech could be protected.

There's a chance the court will throw the case out, because Berry originally voted for the Procedure and therefore waived her claims, Ullman believes.

But Ullman hopes the case is judged on its merits.
"I believe there is very little law in the United States to determine if a governing board by policy can discipline one of its members, and therefore the Court of Appeals decision could make this a very interesting precedent," he says.

Tom Pickrell filed a brief in support of the board's position--on behalf of the Arizona School Boards Association--as part of the special action. He says the association will do the same for the appeal. Pickrell and Herf say the board's rights to investigate and censure are implicit in law, and to deny those rights is a violation of the First Amendment.

Sue Gerard counters: "You don't have to be a lawyer to look at the law on school districts. . . . They don't have the authority to be censuring a fellow board member. The recourse is recall or the next election to get rid of somebody."

Gerard and the Center for Law's Tim Hogan marvel at the chutzpah it takes to rack up private attorney fees when Arizona lawmakers are balancing the state budget on the backs of the students.

"Clearly, some kind of public money is being spent on this that I imagine could be put to better use," Hogan says.

Before the appeal, Herf's bill was close to $28,000. He nudged the board toward the appeal, promising to keep costs below $5,000. (Berry estimates that the legal bill comes closer to $36,000, including the cost of preparing the Procedure and other expenses not included in the actual cost of litigation.) Those board members who favor the appeal, along with Herf, defend the expenditure by reasoning that most of the tab will be picked up by the district's insurance company, Arizona Risk Retention Trust.

But, admits trust manager Jim Mullen, Arizona Risk Retention Trust money is school money. The trust is a nonprofit organization supported solely by its members--Madison and 135 other school districts in Arizona. The company provides coverage on everything from automobiles to burglary to--in this case--public official liability." It is not unusual for school boards to be sued, Mullen says, but school-board members rarely sue one another. The trust agreed to pay for the defense at the trial court level and up to $5,000 for the appeal. The trust's board of directors will vote early this year to determine whether to cover the $7,000 special action. @rule:

@body:Carolyne Berry's term on the Madison School Board is up at the end of 1994, and, according to Berry's 1993 Christmas letter, she won't be seeking reelection.

Somehow, Chaunci Aeed has gotten her hands on the Berry Christmas letter. She and others keep copies as trophies. Berry's letter reads, in part, "I have one more year remaining as a school-board member. For those of you who are asking--no, I will never run for public office again. I've done my public service. I plan to enjoy the few years before the children go to college and travel, travel, travel." Most likely, the appeal of Berry v. Foster won't be considered until Berry's long gone. Wishful thinking, according to Aeed.

"I don't believe that she's not going to run again for any public office. She just doesn't have it in her" to quietly fade away, Aeed says. Next time--if there is a next time--Berry's foes say they're through being nice.

"If she runs again," Scott Gardner says, "I'm going to get a billboard that says, 'Anybody but Carolyne.' That's how I feel. Anybody will do a better job for those schools than Carolyne. Anyone.

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