Feathered Bastard

Tom Horne's Office Farmed Ethnic Studies Legal Work to Contributors

Horne's office threw a pricey bone to law firm Burch & Cracchiolo in the MAS affair

As reported in a previous blog, Administrative Law Judge Lewis Kowal recently upheld Arizona Schools' Superintendent John Huppenthal's finding that Tucson Unified School District's Mexican American Studies program violates the state's anti-ethnic studies statute, one drafted and passed with the express intent of eliminating it.

The progenitor of that law is former schools' Superintendent Tom Horne, now Arizona Attorney General. Both Horne and Huppenthal are Republicans who have exploited their war on MAS to win votes. 

However, the fate of the MAS program is ultimately in the hands of federal Judge A. Wallace Tashima, who on December 21 heard oral arguments in a civil rights lawsuit filed by TUSD teachers and students against the Arizona Department of Education. 

The plaintiffs want Tashima to enjoin Huppenthal from killing MAS. ADE wants the suit dismissed. At stake, too, is the constitutionality of the underlying law.

But there's more to the war on MAS than an ideological attack from the right. 

There's also the issue of the relationship between Horne's office and Phoenix law firm Burch & Cracchiolo.

Burch & Cracchiolo's lawyers have so far billed the state a total of $187,526 for work on two ethnic studies cases, the federal suit and the administrative law case Kowal just ruled on.

Coincidentally, campaign finance records show that around 20 B&C attorneys donated a little more than $10,000 to Horne's campaign for Attorney General from 2009 to 2010.

Asked about the donations, AG spokeswoman Amy Rezzonico scoffed at the notion that B&C's work for the AG's office as outside counsel represented anything untoward.

"All prior AG's and County Attorneys have gotten contributions from lawyers who have done work for the state," Rezzonico contended.

Thing is, the AG's office has lawyers aplenty who could have done the work for gratis. 

So why go to outside counsel, and why pick Burch & Cracchiolo?

B&C's billings show that it worked on the federal suit from April till November. AG lawyers took the case back over on November 8. 

On the administrative case that resulted from TUSD's appeal of the Huppenthal decision, B&C attorneys represented the Department of Education from June till October 31.

Total for the administrative case: $116,155.33; for the federal suit, billings amounted to $71,370.79.

Rezzonico described the "referral" to B&C as an "option of the client," the client being the Department of Education. 

"The federal lawsuit logically went with the administrative case," Rezzonico explained. "We obtained outside counsel on the administrative case for reasons we cannot disclose due to lawyer-client confidentiality. The federal case went with it."

Once the administrative case concluded, pending Kowal's decision, Rezzonico said, "There was no reason for us not to handle the federal case ourselves, and that is more economical."

The money to pay outside counsel comes from ADE's budget. ADE spokesman Andrew LeFevre denied that B&C's involvement in the federal lawsuit ended because the ADE had run out of money to pay the firm. 

"There is no issue of ADE being able to pay for its necessary legal services," he told me. 

He described the switch back to the AG's lawyers in November as a "cost-saving measure" engendered by a review, which determined there was "no conflict of interest" in having the AG's office argue the case in federal court.

LeFevre said that the conflict of interest on the administrative case arose from Horne, "ruling the program out of compliance on his last day as Superintendent then moving over to the AG's office."

So, because Horne acted precipitously in his desire to obliterate MAS, the taxpayers get a legal bill for $187,526?

Thanks, Tom.

But just how did Horne's office end up choosing a firm whose lawyers donated $10K to his bid to become AG?

Rezzonico said Burch & Cracchiolo was chosen by a "selection committee" at the AG's office that decides such matters. 

This committee's members include the AG's chief of staff Margaret Dugan, chief counsel for public advocacy Thomas Chenal (ex-husband of Horne's pal Carmen Chenal), and chief deputy Eric Bistrow, Horne's former law partner.

Bistrow, in addition, was once a partner at Burch & Cracchiolo, according to Bistrow's LinkedIn profile. He also contributed to Horne in 2009, while listing B&C as his employer.

When asked why Bistrow didn't recuse himself from the decision, Rezzonico responded that Bistrow is "no longer is part of that firm." 

Well, obviously.

Interestingly, in 2007, the East Valley Tribune reported that then-Superintendent Horne hired Bistrow, an attorney with B&C at the time, to work on a federal case involving students learning English in Arizona schools. By the date of the article's publication, B&C had been paid "more than $415,000 in legal fees."

I should note that lawyers for B&C have also contributed to Democratic causes and candidates. And LeFevre stated that ADE has been "very pleased" with the representation it received from B&C. 

Indeed, at least in the administrative case, you could say the B&C attorneys have been successful, despite the fact that Huppenthal would not have been bound by Kowal's decision if it had gone the other way.

Whether or not the AG's in-house staff could have achieved the same result is another question. 

Certainly, that $187,526 could have paid for a lot of school books, even ones Horne and Huppenthal happen to agree with.