Diane Douglas Doesn't Prevent "Fired" Employees From Returning to Work
Arizona Superintendent of Public Instruction Diane Douglas isn't immediately escalating the feud she caused by attempting to fire two employees of the Arizona Board of Education last week.
Douglas' move was overturned by Governor Doug Ducey last week, as Ducey said legal counsel advised him Douglas didn't have the power to fire those employees. Douglas fired back at Ducey, her fellow Republican, and reporters waited outside the Board of Education offices yesterday morning to see if the two "fired" employees had any problems going back to work.
Board of Education Executive Director Christine Thompson and Deputy Director Sabrina Vazquez strolled back to work without any problems -- kind of.
Douglas indicated last week that she wasn't exactly going to chain the doors shut, and followed through on a promise not to immediately escalate the situation.
"Superintendent of Public Instruction Diane Douglas today said she will work through legislative and judicial channels to confirm the proper oversight of individuals working for the Arizona State Board of Education," Douglas' spokeswoman says in a statement. "The superintendent said she sees no reason to escalate the current situation by excluding people from access to the Department of Education building even though the action of the Board of Education was clearly outside of its authority."
Douglas maintains that she does indeed have the power to fire Board employees, but said last week that she was going to ask the Legislature to address the issue. Douglas said she wanted to avoid the costs of litigation on this issue.
Douglas had fired the employees in her bid to follow through on her campaign promise to fight the federal Common Core standards in Arizona.
She described Thompson and Vazquez as "two liberal staff who have publicly stated they will block all efforts to repeal or change Common Core "
And here's the caveat. While Thompson and Vazquez returned to work, it appears that Douglas has set some restrictions on them. A letter from the employees' attorney Mary O'Grady to Douglas' attorney describes some issues, which you can read in full below:
1. Restrictions on the content of communications with department employees. You advise that Ms. Thompson and Ms. Vazquez "will not be permitted to discuss any policy issues with or make any direct requests of non-board department of education staff." This is not workable or justifiable. As public employees, Ms. Thompson and Ms. Vazquez retain rights under the First Amendment, including the right to be free from unequally applied, arbitrary prohibitions on discussing "policy issues" with other people, including employees of the Department.
Rather than reflecting a desire to impose an overbroad, discriminatory restriction on the content of employee speech, I hope that the real concern is the issue of channeling requests of non-board Department staff through the Superintendent's Chief of Staff, Michael Bradley, rather than through direct communications with staff. While all reasonable efforts will be made to initiate information requests through Mr. Bradley, I hope that your client will allow flexibility to assure that work gets done.
I note that Board staff may at times need to make direct contact with non-Board employees, including to discuss issues with Human Resources, to discuss procurement issues, or to complete work on ongoing projects involving both Board and non-Board staff. It is not reasonable (and probably illegal) to compel Board staff to route through Mr. Bradley personal issues they need to discuss with Human Resources. On other issues, channeling all routine communications through the Chief of Staff may impede the ability to accomplish the Board's work, simply because of volume, availability, or any other number of issues.
For example, the Board's investigative unit works with the Department's certification unit on a daily basis to assure that applicants for certification as teachers, principals and superintendents are appropriately credentialed to protect the safety of our students. This communication needs to continue for that work to be done properly. In addition, the Board oversees the Move On When Reading program and that work requires ongoing collaboration with Department of Education staff.
2. Chain of command. The February 16 letter asserts that Ms. Thompson and Ms. Vazquez "report to Superintendent Douglas." No, they don't. Even the Department's organizational chart shows that they report to the Board, not directly to the Superintendent. Although § 15-251 may state that the Superintendent may "direct the work" of employees, that provision cannot be read in isolation, in conflict with the Superintendent's obligation to execute policy at the Board's direction, or without regard to an employee's duties to the Board.
The Board--not the Superintendent--has the authority to "[p]rescribe the duties of its employees." The duties prescribed for the Board's Executive Director center on her responsibilities for the Board. Her duties include, among other things, to:
- Direct and manage State Board staff, budget, and designated programs and reports;
- Organize and coordinate Board meetings
- Develop recommended policies for the Board
- Prepare recommendations for Board action
- Serve as the public contact for a variety of organizations and the press on behalf of the Board;
- Act as the Board's designated lobbyist.
Although the Superintendent has general authority to direct the work of staff, she cannot do so in a way that undermines or contradicts the duties the Board has assigned to her. Perhaps this relationship between Board staff and the Superintendent will be further refined in the legislative resolution your letter references. Perhaps not. In the meantime, the Executive Director must be able to do the job the Board hired her to do. If the Superintendent wishes to change her duties, she should bring a motion to the Board.
3. Reporting and accountability. You mention that Ms. Thompson and Ms. Vazquez will be required to "account for their work days, including start and stop times," "provide details and specific schedules of their meetings and notify the department when they will be out of the office and when they are taking sick or vacation time." You also noted that the Superintendent must approve any trips, conferences and expenses.
Given the Superintendent's expressed desire to deescalate the conflict she initiated when she purported to terminate Board staff, I will not view this as a threat of the bureaucratic version of "death by a thousand cuts." Board employees should be subject to the same accountability measures that apply to Department of Education employees with regard to work schedules, sick time, annual leave, etc. They will work with the Superintendent and her Chief of Staff as necessary to assure that they understand the procedures the new administration would like all staff to follow regarding these issues. If there are new Department-wide procedures on these matters, it would be helpful to know what they are. The approval of conference travel may not be an issue, but I note that if the Board wants its staff to attend a conference or incur other expenses paid for out of the Board's own budget, that is the Board's decision.
4. Rationale for attempting to fire Ms. Thompson and Ms. Vazquez. Your letter says Ms. Thompson and Ms. Vazquez were terminated because they "expressed an unwillingness to report to the superintendent." That is not my understanding of the reasons given for the Superintendent's action. Nevertheless, I am not aware of any request to report to the Superintendent on any topic that these employees failed to comply with. There may be a dispute about the chain of command that applies to Board staff, but I am not aware of any examples of Board staff failing to cooperate with requests from the Superintendent.
That letter makes it fairly clear that Thompson and Vazquez don't expect everything to go back to normal, and are concerned that they might be sentenced to work in a bureaucratic hell.
Is Douglas scaling back her assault on Common Core, or just changing the tactics?
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