Arizona DES Director's Religious E-Mails to Staff Are Free Speech, AG's Office Says

Arizona Attorney General Mark Brnovich has given his blessing to the director of the state Department of Economic Security's use of e-mail to send religious messages to employees.

Paul Watkins, the chief counsel of Brnovich's civil division, wrote in an August 10 e-mail to Madeline Ziegler of the Freedom From Religion Foundation that DES Director Tim Jeffries' e-mails about taking employees' prayers to a famous shrine in Lourdes, France, were "private speech" and didn't run afoul of state policy or the law. Jeffries used his vacation time and paid for all expenses for himself and his wife on the eight-day trip in late April.

Ziegler had written to Jeffries in June, accusing him of showing favoritism to Catholic employees and demonstrating an "unconstitutional preference for religion" as the leader of a state agency.

"If DES were to adopt a rule banning religious speech in internal workplace would violate the First Amendment." — Paul Watkins, Arizona AG's Office

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"Mr. Jeffries' internal emails about his personal trip were private speech, did not bear the endorsement of the State, and did not violate the Constitution," Watkins wrote. "Furthermore, if DES were to adopt a rule banning religious speech in internal workplace emails, as you suggest, it would violate the First Amendment."

Jeffries tells New Times he'll cool his fervor, to some extent: He vows that he won't offer to collect employees' prayers to the Virgin Mary before his annual pilgrimages to the shrine.

Jeffries has become one of the best-known state officials since Governor Doug Ducey appointed him in early 2015. Though the politically connected businessman had no previous experience at a social-service agency, he has embraced his job as few — if any — have before him.

He has tried to meet most of his 7,000-plus underlings at DES, he responds to e-mails by the hundred, and he has helped make dozens of videos for the agency that attempt to boost morale and connect employees to one another and their work.

All of which sounds great — if you aren't one of the hundreds of people whose terminations he has overseen, whom he has deemed bullies, liars, slackers, and "bad actors."

Jeffries makes no apology for being outspoken about his Catholic faith, linking it to his passion for his job and for DES employees, whom he calls his "colleagues." On the outside of Jeffries' office at DES is a sign engraved with "Director J" and a smiley face. Hanging over the door on the inside is a cross. His e-mails to employees are sometimes flavored with religious sentiments — quotes from Mother Teresa or St. Augustine, for example.

But it was the April 10 e-mail to all DES employees about taking prayers to Lourdes that spurred the Secular Coalition of Arizona and the national Freedom from Religion Foundation to action.

"If you are comfortable, I would be immensely honored to carry your special intentions to the Grotto at Massabielle on the River Gave in Lourdes," Jeffries wrote in the e-mail. "If you are moved to do this, simply place your special intentions in a MS Word document, then PDF the private document. Upon doing so, please e-mail the PDF to me. I promise that your private intentions will not be read. Your special intentions will be printed, and placed in a confidential envelope for my humble delivery to the Grotto."

Believers claim the Virgin Mary appeared to a peasant girl in 1858 at the grotto, and that ever since, the grotto's spring water has had the power to heal illnesses.

Jeffries followed up a week later with another e-mail to all employees, stating that he'd received more than 200 letters of "special intentions" for delivery to the grotto. His special assistant, Nicole Lewis, would track the letters and ensure they’d be available for him to carry to France, he wrote.

The Secular Coalition for Arizona, a group that fights religious influence in government, put the April 10 letter on its website and accused Jeffries of using state resources to proselytize to employees.

In her June 24 letter to Jeffries, Ziegler wrote that several concerned Arizona residents had reached out to the Madison, Wisconsin-based Freedom From Religion Foundation.

Ziegler asserted that in presuming his staffers cared about his trip or would want him to tote along their prayers indicates he that favors religious employees. Additionally, she argued, directing a state-funded assistant to help with that task represents an unconstitutional breach of the separation of church and state. She quoted from several U.S. Supreme Court cases to back up her points.

"This leads any reasonable observer to conclude that the DES under your leadership endorses religion over nonreligion, and Christianity over all other faiths," Ziegler wrote. "Please inform us in writing of the steps you are taking to ensure these constitutional violations do not recur."

(In an April 25 New Times article — which Watkins would later reference in his letter — Jeffries clarified that Lewis didn’t help all that much with the project, and that he had printed out the "special intentions" letters at his home.)

Jeffries forwarded Ziegler's letter to the AG's office, where officials reviewed the e-mails and legal questions at hand before Watkins crafted his six-page response.

Watkins, who also borrowed amply from U.S. Supreme Court opinions, asserted that the courts have established a difference between government speech that endorses religion and private speech that endorses religion that happens to come from state employees like Jeffries.

DES employees, he pointed out, are not prohibited from sending and receiving personal e-mails at work. From line employees to executive staff, they routinely transmit e-mails encouraging participation in charities or (for instance) to alert co-workers that a food truck has arrived.

"Mr. Jeffries' email is plainly personal," Watkins wrote. "At no time did Mr. Jeffries state that DES is sponsoring or endorsing his emails, his trip, or his beliefs."

Watkins further posited that had Jeffries e-mailed employees with the offer to shout their names from the stands at Lambeau Field during a Green Bay Packers game, no reasonable person would see it as a violation of the Constitution.

"Would your constitutional objections remain if Mr. Jeffries waxed rhapsodic about his reverence for the 'hallowed ground' of Lambeau Field and offered to prayerfully whisper each employee's name while watching video highlights of Aaron Rodgers' successful 'Hail Mary' passes from the 2015-2016 season?" 
Watkins wrote. "Ultimately, distinguishing between these examples would force the government to delve into the 'real' reasons for personal vacations, the religious significance of various vacation destinations, and the sincerity of the trip-taker's religious belief — a sensitive inquiry that itself would raise First Amendment concerns."

At the same time, if the state tried to ban only e-mails about religious trips, "it would be favoring nonreligion" over religion, and therefore wouldn’t be neutral, Watkins wrote.

He deemed Ziegler’s portrayal of the e-mails as proselytization "uncharitable at best" and added that Jeffries could "hardly be faulted" for signing e-mails with the phrase "Ditat Deus" [God Enriches], because it's the state motto.

"If DES were to adopt a rule banning religious speech in internal workplace emails, as you suggest, it would violate the First Amendment," Watkins concluded.

Ziegler isn't satisfied with the AG's response.

"We don't find it to be an acceptable statement and we still strongly believe that Mr. Jeffries' conduct is unconstitutional," Ziegler told New Times on Friday. "Litigation is a possibility."

The AG's office has done nothing to help the public employees who have been affected by Jeffries' imposition of his religious beliefs, said Tory Anderson, lobbyist for the Secular Coalition of Arizona. The AG's analysis disregarded the fact that Jeffries' position is vastly different from — and more influential than — that of other DES employees, she said.

"We consistently receive complaints from DES employees who feel that this behavior is inappropriate and coercive," Anderson said, adding that the employees don't want their names revealed for fear of being fired.

Anderson says Jeffries' behavior constitutes a pattern of forcing his beliefs on DES employees. In another recent example from last month, Jeffries gave a PowerPoint presentation entitled, "The Rise of Our Great DES," in which he devoted one slide to the "Seven Tenets of Catholic Teaching."

No doubt, Anderson said, the response from Arizona leaders over this sort of thing would be very different if Jeffries referenced Wicca or Islam, rather than the Catholic faith.

Watkins told New Times that the review did take into account Jeffries' role as leader. But just because Jeffries has supervising duties doesn't mean his First Amendment rights are suspended, Watkins said.

Jeffries said he believes DES employees know his e-mails are "well-intended. They know I’m a person just like them."

Morale has improved tremendously since he took over, Jeffries said, and one reason is that employees know they can trust their leader.

"All the attention around my good intentions has certainly inspired me not to send that type of e-mail again," he told New Times. "Although the kerfuffle is fascinating to me from a First Amendment perspective, I have more important things to attend to."

Not that he’ll change too much, he added, noting that recent internal surveys indicate that employee satisfaction appears to be soaring.

"I shared with the governor that I respect that this is secular work, but for me it’s also the Lord’s work," he said. "I’m going to continue to be who I am, but I will certainly be more delicate about certain things."

Jeffries said he hadn't spoken with Ducey specifically about the e-mail flap, but he believes he has the governor's full support.

That does still seem to be the case.

"His communications are reflective of the positive, caring, and inclusive tone he has brought to DES, as well as his deep passion for helping others," Ducey’s spokesman, Daniel Scarpinato, told New Times on behalf of the governor.

Read Madeline Ziegler's June 24 letter to DES Director Tim Jeffries:

Read the August 10 response to Ziegler from Paul Watkins of the Arizona Attorney General's Office:

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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.