On Thursday, Arizona State House and Senate Republican leadership sent a letter to Attorney General Kris Mayes demanding that she retract inaccurate and inflammatory public statements that she’s made to attack Empowerment Scholarship Accounts (ESAs).
The letter was signed by Speaker of the House Rep. Ben Toma, Senate President Sen. Warren Petersen, Speaker Pro Tempore Rep. Travis Grantham, Senate President Pro Tempore Sen. TJ Shope, House Majority Leader Rep. Leo Biasiucci, Senate Majority Leader Sen. Sonny Borelli, House Majority Whip Rep. Teresa Martinez, and Senate Majority Whip Sen. Sine Kerr.
Mayes claimed, contrary to evidence, that “there are no controls” on the ESA program, “no accountability,” and that parents are “spending hundreds of millions of dollars of taxpayer money.” Mayes also claimed that it was her “responsibility to do that” as Arizona’s “top law enforcement officer.”
Contrary to her claim, it is not her job to investigate the ESA program unless an investigation into a particular use of ESA funds is forwarded by the State Board of Education.
The ESA program, which were expanded to all K-12 students through a bill sponsored by Toma last year, has been under attack by the teachers’ union and assorted left-wing groups. Since its inception, up to and including this Legislative Session, Democrats have unsuccessfully tried a variety of legal and political tactics to kill the program.
Mayes’ threat to investigate parents was seen as just the latest in a series of salvos launched by the enemies of school choice.
“As legislators and other elected officials have long emphasized, Arizona was the first in the nation to implement universal school choice and has been a model for the rest of the country. Legal and political attacks against ESAs have failed time and time again,” wrote the legislators on Thursday.
“Parents have spoken and the Legislature has enacted ESAs into law. Your job, as an executive branch official, is to execute the law, not attack it,” explained the legislators. “We demand that you cease making baseless and politically-motivated attacks, including your threats to parents who are simply making educational decisions within their legal rights. It’s time to move on and accept that ESAs are here to stay.”
“Arizonans expect the state’s chief legal officer to refrain from engaging in politically-motivated pursuits, threats, or lawsuits, and to make public statements that align with Arizona law and the duties of your office,” concluded the letter.
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On Wednesday, Hobbs alleged that Governor Doug Ducey made a $50 million grant made to the Treasurer in the final hours of his administration that is “illegal and invalid.”
Hobbs advised the Arizona State Treasurer’s Office that the grant “agreement attempted to improperly use federal funds from the American Rescue Plan Act to fund all-day kindergarten for ESA recipients, despite the fact that the State funds only half-day kindergarten for public school students.”
On Thursday, Arizona Treasurer Kimberly responded to Hobbs in a tweet: “Governor Hobbs has just denied thousands of Arizona kids access to kindergarten through this politically driven and belligerent decision.”
“Governor Hobbs has just denied thousands of Arizona kids access to kindergarten through this politically driven and belligerent decision. As has become the norm for this Governor, my office first learned of her action through a press release prior to receiving the letter, and we have yet to receive any communication from the Governor or her team on this matter other than the letter,” Yee explained in an attached statement. “Our legal team is currently reviewing the lawfulness of the governor’s move and determining next steps.”
“It is clear Governor Hobbs does not care about what is best for Arizona kids or respect the rights of parents to determine the best environment to educate their child. Instead, she is using these children as pawns in a desperate and transparent attempt to win back support from union bosses and her ultra-progressive base,” alleged Yee. “Educational choice is the civil rights issue of our time, and unfortunately, Governor Hobbs thinks she knows better than parents. I fundamentally disagree, and so do Arizona families.”
LETTER FROM LEGISLATIVE LEADERS
Re: Demand to Retract False Statements Regarding ESAs and to Use State Resources to Serve Interests of Arizonans, Not Politics
Dear Attorney General Mayes:
It has come to our attention that you made inaccurate and inflammatory public statements attacking Empowerment Scholarship Accounts (“ESAs”) and impugning the motives of thousands of parents that use ESAs to provide the best education for their children. We demand you publicly retract your patently false statements.
Specifically, you claimed that “there are no controls” on the ESA program, “no accountability,” that “they” (presumably parents) are “spending hundreds of millions of dollars of taxpayer money,” that this “needs to be looked at,” and that it’s your “responsibility to do that” as Arizona’s “top law enforcement officer.”
It is alarming that the state’s chief legal officer would make such outlandish claims that are refuted by Arizona law. Numerous statutory provisions in the ESA laws expressly require accountability, oversight, and investigations when appropriate. See, e.g., A.R.S. § 15-2403 (requiring, among other things, the Arizona Department of Education to conduct or contract for “random, quarterly and annual audits” of ESAs “as needed to ensure compliance”, authorizing the Department to remove parents or qualified students if they fail to comply with the contract or applicable laws, rules or orders, and enabling the State Board of Education to refer cases “of substantial misuse of monies” and suspected cases of fraud to the Attorney General).
You have not cited a shred of evidence to suggest that either the Arizona Department of Education or the State Board of Education-both of whom you represent-have failed to comply with their statutory obligations, and there is no basis to believe that these agencies will disregard or refuse to follow the law in the future. And while you have a statutory responsibility to investigate matters that are referred to you, the Legislature did not authorize and does not condone the selective targeting or roving investigations of ESA parents. Of course, Arizona’s Ethical Rules do not tolerate the initiation of criminal proceedings absent probable cause to believe that any parent has committed a crime. See Arizona Ethical Rule 3.8 (listing the special ethical responsibilities of a prosecutor). Further, it would raise ethical questions if a government attorney were to publicly insinuate that a current client is engaging in misconduct with no factual basis. See, e.g., Arizona Ethical Rule 1.7 (imposing a duty of loyalty to a current client).
As legislators and other elected officials have long emphasized, Arizona was the first in the nation to implement universal school choice and has been a model for the rest of the country. Legal and political attacks against ESAs have failed time and time again. Parents have spoken and the Legislature has enacted ESAs into law. Your job, as an executive branch official, is to execute the law, not attack it. We demand that you cease making baseless and politically-motivated attacks, including your threats to parents who are simply making educational decisions within their legal rights. It’s time to move on and accept that ESAs are here to stay.
One of the primary functions of your office is to represent the state of Arizona when its laws are challenged in state and federal courts. See A.R.S. § 41-193(A). But you recently disqualified yourself entirely from providing legal representation in Doe v. Horne to defend Arizona’s Save Women’s Sports Act. Your unilateral disqualification has required Superintendent Horne to engage his own counsel at taxpayers’ expense to perform a core function that belongs to your office. As you are aware, because you have refused to defend several of Arizona’s laws in the short five months that you have been in office, President Petersen and Speaker Toma have invoked their statutory right to intervene in Doe v. Horne and several other cases. To our knowledge, prior Arizona Attorneys General have historically defended Arizona laws, even if they personally disagreed with the wisdom or policy of those laws.
We are also puzzled by your press release about the 2024 Budget, where you stated that you are “opposed to any statewide proposal that does not adequately fund Arizona’s ability to fight the fentanyl crisis and the drug cartels[.]” But you lead Arizona’s largest public law firm and have many tools available at your disposal to do just that-including a $12 million appropriation from the One Arizona Opioid Settlement Agreement (more than double the amount that your predecessor received in last year’s fiscal budget). The issue is not resources, it is priorities.
Unsurprisingly, it appears that your threat to initiate a lawsuit over the bipartisan budget negotiated with Governor Hobbs has not materialized. We agree with the sentiment of Representative Livingston’s letter in response to your litigation threat and urge you to prioritize your office’s resources on serving the interests of Arizonans, not politics. Arizonans expect the state’s chief legal officer to refrain from engaging in politically-motivated pursuits, threats, or lawsuits, and to make public statements that align with Arizona law and the duties of your office.
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