Mayes investigating voucher purchases as ESA program grows

The Arizona Attorney General is investigating procedures to approve ESA purchases under the Dept. of Education policy that allows paying for “supplementary materials” untethered to any curriculum. On July 1, the Government Accountability Unit of the Solicitor General’s office sent a letter to ESA program director John Ward flagging ESA program guidance, which exempts “supplementary materials” from the curriculum requirement as a potentially illegal use of public monies. Kathryn Boughton, assistant AG, noted state law allows for use of ESA funds to purchase curricula and supplementary materials. Statute defines curriculum as “a course of study for content areas or grade levels, including any supplemental materials required or recommended by the curriculum, approved by the department.” It includes a rule from the State Board of Education defining supplementary materials as “relevant materials directly related to the course of study for which they are being used that introduce content and instructional strategies or that enhance, complement, enrich, extend or support the curriculum.” Boughton wrote that read together, the laws and rules governing the program require supplementary materials to come in tandem with curriculum, but the department’s policies in the 2023-24 Parent Handbook and the Allowable Expenses List exempt supplementary materials from curriculum requirements. Boughton does note, though, that both the Allowable Expense List includes a requirement that materials “not generally known to be educational items” require curriculum, class registration or home education attestation and the Parent Handbook holds some items may require a link with a course of study. But “(n)either document, however, describes the ESA Program’s curriculum approval process nor indicates that the ESA Program confirms the curriculum prompting the purchase of the item is (1) appropriate for the qualified student as indicated by grade level or course of study and (2) is being studied by the student,” Boughton wrote. “Approving ESA funds for materials that have no nexus to the student’s actual curricular needs contradicts the intent of the program and constitutes a payment of funds made without authorization of law.” Boughton asked Ward to cease approving supplementary materials without curriculum documentation and identify, from 2019-20 to 2-23-24, the amount of ESA funds expended on supplementary materials and the amount of funds expended on materials without curriculum documentation. She asked the department to identify every item approved without curriculum tie in the 2022-23 and 2023-24 school year and explain how the ESA program confirms the curriculum is appropriate. And beyond the supplementary materials, Boughton asked for information from the department on items and funds spent on curricula material and the process the department uses to deem curricula acceptable, as well as on textbooks, which should be “required by a qualified school” and attached to curriculum per the state law and SBE rules. In response, Ward confirmed in a July 3 letter that the department would cease allowing supplementary materials and textbooks without supporting curricula documentation and would send a response to the questions posed by the solicitor general within 60 days, though he noted the practice predates the current administration and his tenure. He added the department would communicate the change to ESA account holders and work with SBE to revise the 2023-24 Parent Handbook.

A refresher on a some other ballot measures

Voters will be asked to weigh in on many contentious issues this November – including but not limited to: abortion, the border, tipped worker pay and sex trafficking – but three propositions will ask Arizonans if they want to make significant changes to the state’s elections process. The 2024 general election ballot will have 14 propositions, six more than voters saw in 2022. Make Elections Fair Act – a citizen-led bipartisan initiative that submitted over 584,000 signatures in their qualifying petition – looks to establish open primaries. If approved by voters, candidates would appear in one list on one ballot, rather than the current elections process, which sends out separate ballots to registered Democrats and Republicans. The initiative’s campaign garnered bipartisan support, but the Republican Party of Arizona opposed the proposition. Highground Public Affairs CEO Chuck Coughlin said the proposal would make general elections more competitive while throwing out partisan control in primary elections. On top of that, voters are being asked by Prop 137 (SCR1044 – judicial retention elections) whether they should scrap their own power to vote on judicial retention. If passed, the GOP-backed proposition would scrap retention votes for judges unless they are convicted of a felony or fraud crime, initiate bankruptcy, foreclose their mortgage or fail to meet judicial performance standards. Prop. 133 (HCR2033 – primary elections; eligible candidates), a ballot referral that passed out of the legislature in 2023, would ban any election law in the state that runs afoul of the Arizona Constitution and ban ranked choice voting.

Reproductive rights group challenges summary for ballot initiative

Arizona for Abortion Access filed a lawsuit Wednesday to push back on what they call “politicized language” in the publicity pamphlet summary for their citizen initiative, which would permit abortions up to fetal viability. The suit is against the Legislative Council.  “The staff draft of the summary for the Arizona Abortion Access Act, used the term ‘unborn human being’ when describing existing Arizona law regarding abortion, but also used ‘fetus’ when describing the effect that our initiative would have,” The group’s communications director Dawn Penich said. “Our attorney appeared at the session in order to urge Legislative Counsel to change the term ‘unborn human being’ to ‘fetus’ to not only be consistent, but to use a neutral, objective and medically accurate term, instead of a phrase that is a watchword of anti-abortion advocates.” The group’s attorneys said the term “unborn human being” and “unborn child” are commonly used by “anti-abortion activists and groups in their advocacy against reproductive healthcare.” “This fall when voters seek information about what is on their ballots, that information by law should be accurate and not tinged with inflammatory political rhetoric,” said Campaign Manager Cheryl Bruce. All Republican members of the Senate signed a legislative proclamation titled “Declaration in Support of the Sanctity of Human Life,” in which they urged members to reject the initiative in order to protect “(e)very life, born and pre-born,” and “unborn children” in February, attorneys for the group said in the complaint, among over other examples of similar language being used by pro-life advocates. “Our point is that statutory language does not have to be neutral and does not have to be impartial, but the language that the Legislative Council puts into the publicity pamphlet does have to be impartial,” said Andrew Gaona, one of the four attorneys representing the group in the case. “So, the mere fact that the phrase unborn human being appears in places and existing Arizona law doesn’t decide the issue.” Gaona said the council asked for expedited consideration of the case, anticipating a scheduling conference in the next week, to ensure the case can be litigated in time for the Legislative Council to reconvene to adopt new pamphlet language before they are sent out to voters, if the court deems it necessary. In a request for preliminary injunction, attorneys for the group said lawmakers’ deliberation on the pamphlet summary on June 8 further proved their point that when provided a decision between one term that is “rooted in anti-abortion advocacy” and one that is “neutral and objective and medically accurate,” statute requires that the latter be used. The case was assigned to Maricopa County Superior Court Judge Joseph Mikitish.

Corp Comm candidate explains why he’s using private money 

A ll but one of the candidates vying for a seat on the Corporation Commission are running as Clean Elections candidates, promising to forgo private funding. But Joshua Polachek, a Democrat running for the commission, says he’s using traditional financing to level the playing field. Candidates running for Corp Comm often run as Clean Elections candidates because of the commission’s reputation as the “Corruption Commission.” But Polachek says that while Republicans in the past have run as Clean Elections candidates, they’ve been funded by dark money and independent expenditure groups. He hopes that by running as a traditional candidate and disclosing his donors, he can “fight fire with a fire extinguisher.” Polachek has raised nearly $40,000 for his campaign, but the top fundraiser in the race is his running mate and Clean Elections candidate Jonathon Hill. He has raised nearly $150,000 in smaller donations from citizens. Polachek said he is still following the philosophy of the Clean Elections system, which incentivizes candidates to seek out citizen donations to receive public money for their campaigns. “I’ve had donations from all 15 counties across the state, and we are raising money from the everyday citizens to stand up to the out-of-state corporate puppet masters that are supporting the other side,” Polachek said. So far, the Democrats in the race have far outraised the Republicans, boasting nearly $200,000 to the Republicans’ nearly $45,000. Those numbers are likely to change as candidates begin to file their latest campaign finance reports ahead of the July 15 deadline.

Lawmakers push back against judging the judges ballot measure

Petersen and Toma stepped in to defend the Judicial Accountability Act from a legal attempt to boot it from the ballot. Progress Arizona filed suit against a legislative referral, which allows for judges to serve indefinitely given “good behavior,” installs a legislative complaint process in the Arizona Commission on Judicial Performance Review and walks back the 2024 retention election results, improperly proposes multiple amendments to the Arizona Constitution and bears a deceptive title. Thomas Basile, attorney for the legislative leaders, claimed all eight sections of the resolution are “topically, facially, textually, historically, and qualitatively intertwined components of a discrete proposal relating to the judicial retention process.” He claimed the “ligature” connecting the provisions is “direct and explicit” in the text of the resolution and the textual scope of changes are limited to a single article of the state Constitution. And as for the title, Basile claimed legislative referrals cannot be held to the titling requirement under state law and said the plaintiffs “unveil a novel title requirement for constitutional amendments, which they jerry-rig by conjoining a constitutional provision concerning only statutory laws with a common law anti-fraud safeguard for verbiage included on petition sheets.” Basile said the “doctrinal Frankenstein trips over its own feet” because SCR1044 is a legislative referral, making it fall outside laws governing statutory enactments and voter initiatives. But even if the title was open to challenge, Basile noted the current title, the “Judicial Accountability Act,” is the short title and the descriptive title has yet to be issued. And even so, he wrote the “(p)laintiffs’ personal prognostications that the amendment will decrease rather than increase judicial accountability are neither legally relevant nor judicially cognizable.” The parties are due for a status conference July 12.

Ballot manual challenged again for upcoming election

In the latest challenge to the 2023 EPM, American Encore and America First Policy Institute challenged two provisions, one which allows the Secretary of State to move forward with a state canvas without votes from any county that fails to certify election results on time and another providing guidance on what behaviors constitute voter intimidation. On the “Voter Nullification” provision, attorney Andrew Gould claims a violation of the First and Fourteenth amendments given its mandate of the “complete disenfranchisement of every voter” in a county that fails to canvass on time. He noted the Cochise County Board of Supervisors delay in certifying the 2022 election results and noted the provision was likely aimed at deterring similar behavior in future elections. But Gould pointed out the provision could confer undue power on Boards of Supervisors and “actively incentive Boards … to refuse to certify results in order to manipulate electoral winners.” And as state law already criminalizes a supervisors’ refusal to certify election results, Gould deemed the provision “particularly unnecessary.” As for the “Speech Restriction,” Gould claimed the provision in the EPM prohibiting “activity by a person with the intent or effect of … threatening, harassing, intimidating or coercing voters” also violates the First and Fourteenth amendments and works to create new criminal code. Though the AG claims the provision does not levy any new or extend any criminal statutes, Gould noted violations of the EPM can be punishable as a Class 2 misdemeanor and the provision itself is not narrowly tailored enough as it applies not only on election day and has no geographic limitations. He similarly claims violations of free speech rights and due process. The nonprofits asked the court to enjoin the provisions of the 2023 EPM. This marks the fourth lawsuit to seek to strike down portions of the latest elections handbook.

State ed board scraps recently implemented FAFSA requirement

The Kansas State Board of Education backtracked on a new graduation requirement it recently implemented for the upcoming school year. 

Board members voted 6-3 on Wednesday to start the process of repealing an accreditation provision mandating that high school students complete the Free Application for Federal Student Aid. Board member Dennis Hershberger was not present for the vote.

Completion of the optional FAFSA application paves the way for students to receive federal funding for higher education expenses. According to data compiled by FAFSA Tracker, Kansas ranks in the bottom tier of FAFSA completion rates at 38.8%, while Tennessee leads the pack at 63.4%. Completion of the application by high school upperclassmen in Kansas, according to the data, has dropped by roughly 3,000 from the previous year.

State education leaders and legislators contend that millions of dollars in aid is being left on the table by students unaware of FAFSA’s potential financial benefits. 

Danny Zeck, who represents an area of northeast Kansas, said the burden should be on the student and not the school because kids and parents are “supposed to try to figure out things themselves.” 

“It seems like we want to do everything for everybody,” Zeck said, further explaining he’s “old school” in his views. “If you want to be successful, then you get out there and do whatever it takes to be successful.” 

Zeck and Michelle Dombrosky were the only board members to cast “no” votes to the graduation overhaul measure in May.

The board in May voted to approve the new set of graduation requirements, marking the first time in 20 years the state overhauled those regulations. But at least two board members expressed skepticism over the FAFSA requirement, prompting the board to quickly revisit the measure. 

Concern centered on alleged pushback from unnamed school administrators who didn’t believe getting students and parents to comply with the requirement was feasible — despite a built-in opt-out provision. But Education Commissioner Randy Watson countered the assertion, saying superintendents surveyed statewide broadly supported the measure. 

At Wednesday’s meeting, the board considered but ultimately passed on an option that would have allowed districts to merely relay information related to FAFSA’s potential benefits and additional guidance from the Kansas State Department of Education. In that scenario, the measure would have no longer been considered an accreditation requirement. 

The FAFSA requirement was included in recommendations from a task force’s multiyear study that looked into the graduation requirements overhaul. Board members were previously informed that the idea was to place the burden on the school district to do more as far as presenting FAFSA info to students.

Board member Cathy Hopkins, who represents a large swath of central and western Kansas, said Wednesday she believed the district “compliance” option presented during the meeting achieved that objective.

“I believe doing it through compliance does that,” Hopkins said. “And not through actual graduation requirements, which does put the burden on the parent or student to have to opt out and deal with the whole situation.” 

Board member Jim Porter, who represents parts of southeast Kansas, said his concern primarily centered on “capable” students who were not being provided with pertinent info related to FAFSA. Some school districts hold annual FAFSA informational events, which is another avenue for schools to comply with the alternative option presented at the meeting. Porter said he believed the compliance option presented at Wednesday’s meeting would not result in a breakthrough. 

“If compliance is a ‘FAFSA night’ and sending messages, it’s going to get to the same people it’s getting to now,” he said.

Board Chair Melanie Haas agreed that “a FAFSA night is not enough” as far as outreach efforts. 

“It’s one night and a lot of parents are working, they’re busy, they can’t make it, they’ve got other kids,” she said. 

Haas also mentioned that completion of the FAFSA does not automatically equate to higher education success. 

“That’s what I want to solve,” Haas said. “If they’re going to go to college, it would be great to see them finish college.” 

Board member Jim McNiece, who served as the chair of the graduation task force, was baffled by “all the fuss” related to the board’s swift pivot on the issue. 

“I’ve talked to several people [on the graduation task force] and they were surprised,” McNiece said. “That’s what the board picked on? That’s the item that got the most attention?” 

He said the measure specifically provides added support for all students, particularly those at risk. McNiece indicated the measure should be a slam dunk, noting that the board wasn’t scaling “Mount Everest.” 

Matt Resnick is a Statehouse reporter at State Affairs Pro Kansas/Hawver’s Capitol Report. Reach him at [email protected].

KBI reports violent crime down 3.7%, property crime up 2.6%

Violent crimes were down 3.7% in 2023, but property crimes increased for the first time since 2017, the Kansas Bureau of Investigation reported Wednesday.

The bureau released its annual Crime Index, which compiles statistics from local and state law enforcement agencies.

Kansas had 13,294 violent crimes, a category that includes murder, rape, robbery, and aggravated assault and battery. Each crime had a decline in total incidents:

  • Murder: 157 from 168 (6.5% decline); 152 (10-year average)
  • Rape: 1,120 from 1,281 (12.6% decline); 1,192 (10-year average)
  • Robbery: 1,097 from 1,104 (0.6% decline); 1,415 (10-year average)
  • Aggravated assault/battery: 10,920 from 11,255 (3% decline); 9,479 (10-year average)

Last July, the bureau’s report showed a 4.3% decline in violent crimes in 2022 before an amended document in November revealed a 2.9% increase after an initial reporting error with the Wichita Police Department’s data.

Overall, the violent crime rate per 1,000 people dropped to 4.5 in 2023 from 4.7 in 2022.

Violent crime remained 8.6% above the 10-year average of 12,239 offenses.

Law enforcement agencies reported 66,782 property crimes, an increase of 2.6% from 2022. Property crimes include burglary, theft and motor vehicle theft.

Burglary dropped by 1.1% to 8,748 incidents in 2023 from 8,849 in 2022, but theft increased by 2.9% to 49,754 from 48,373, and motor vehicle theft went up 4.8% to 8,280 from 7,897.

Overall, the property crime rate per 1,000 people rose to 22.5 in 2023 from 22 in 2022.

But total property crimes sat 10% below the 10-year average of 74,228 offenses. The 2023 property crime totals were below the 10-year average for burglary (11,942), theft (54,391) and motor vehicle theft (7,896).

“It is often not possible to draw further interpretations or conclusions from the data,” the bureau said in a news release.

Bryan Richardson is the managing editor at State Affairs Pro Kansas/Hawver’s Capitol Report. Reach him at [email protected] or on X @RichInNews.

State Board of Education discusses cell phones, screen time in schools

As some states begin to ban cell phones in schools, the Kansas State Board of Education is weighing how best to address students’ screen time.

The board on Tuesday heard a presentation from Payton Lynn, an intern with the Kansas State Department of Education. The project was overseen by Jake Steel, the department’s director of strategy and operational alignment; and Gabrielle Hull, legislative coordinator for the department’s Division of Fiscal and Administrative Services.

Lynn pointed to legislative action around the country, including phone bans in Florida, South Carolina and Indiana and new policies and guidance in other states. Just this week, Virginia Gov. Glenn Youngkin signed an executive order to create cell phone-free classrooms by Jan. 1.

In Kansas, House Bill 2641 died in committee earlier this year. The bill would’ve required each Kansas school board to create a policy banning personal cell phones during normal school hours, with certain exceptions.

Shannon Kimball of the Kansas Association of School Boards said during a February hearing that she believed phone restrictions are issues best addressed locally. The Kansas National Education Association also opposed the bill for the same reason.

Steel called the issue a hot-button topic and said the research was specifically focused on the non-educational time students spend on screens, from watches to tablets to phones to computers.

Education Commissioner Randy Watson said the word “cell phone” is a misnomer because most smartphone usage isn’t simply making a call.

“These devices aren’t being used to call your friend or call home,” he said.

Since 2020, children’s non-educational screen time has risen by 52% to an average of seven to 10 hours per day, Lynn said. About five of those hours are spent on social media.

But she said there’s not much expert guidance on how much time school-aged children should spend in front of screens.

Studies show high amounts of screen time are correlated with higher levels of depression and anxiety, though Lynn said it’s unclear whether that relationship is causal. Some research also shows that certain types of screen time, such as educational TV programming, can be beneficial.

Lynn cited a report from the U.S. surgeon general, Dr. Vivek Murthy, that found “adolescents who spend more than three hours per day on social media face double the risk of experiencing poor mental health outcomes.”

Studies show that 77% of schools nationwide have policies against non-academic cell phone use — though Lynn explained that many of those policies were written in the early 2000s and are now outdated.

Difficulties today include inconsistent enforcement of those policies, leaving individual teachers to police their own classrooms. 

“A lot of educators say that it’s really difficult to enforce this at the classroom level. …” Lynn said. “Others would say that it’s really important for the administration to be the ones to enforce it so that teachers don’t have to take the time to be the cell phone police in class.”

However, surveys show parents generally don’t want their children’s phones to be unavailable during class.

Board member Betty Arnold said she understands that parents are divided and that some want their children to have the ability to communicate during emergencies.

“I don’t think that we can bring everybody together on that same page for that,” Arnold said.

Ann Mah, another board member, suggested a state-level ban on phones in schools would be unenforceable and said it’s an issue that should be handled at the local level.

Brett Stover is a Statehouse reporter at State Affairs Pro Kansas/Hawver’s Capitol Report. Reach him at [email protected] or on X @BrettStoverKS.

Ex-Rep. Eberhart gets prison time in casino conspiracy

Former state Rep. Sean Eberhart was sentenced Wednesday to 12 months and one day in prison after pleading guilty to federal felony charges of influencing casino legislation in return for the promise of a $350,000-a-year job.

A judge ordered the sentence after Eberhart apologized in court for his actions during the 2019 legislative session and said he was ready to accept whatever punishment the judge imposed.

“I am truly, deeply sorry for what I did,” Eberhart said as he spoke for about two minutes near the end of an hourlong sentencing hearing.

No one else has been charged in connection with Eberhart’s conspiracy case, and the court hearing gave no indications of any forthcoming charges against executives of Indianapolis-based Spectacle Entertainment or others.

Eberhart’s plea agreement and sentencing orders included no mention of him cooperating with investigators or requirement of testifying against others. 

Bradley Shepard, senior litigation counsel for the U.S. Attorney’s Office in Indianapolis, declined to comment after the hearing on Eberhart’s level of cooperation or whether the investigation was ongoing.

Prosecutor: ‘An assault on the public trust’

U.S. District Court Judge Matthew Brookman allowed Eberhart to remain free until the Federal Bureau of Prisons sets a surrender date. 

Eberhart, 58, was also ordered to pay a $25,000 fine and spend one year on supervised release for illegally working on behalf of Spectacle Entertainment while a broad gambling expansion bill advanced through the Legislature.

He also must pay $60,000 in restitution to the State Budget Agency — an amount similar to his annual salary as a legislator.

Brookman told Eberhart that the extra day beyond one year for the prison sentence made him eligible for good time credit toward early release.

Eberhart, a Republican from Shelbyville, was an Indiana House member for the 57th District from 2006 until he didn’t seek reelection in 2022. 

He pleaded guilty in November to a felony charge of conspiracy to commit honest services fraud, with a maximum sentence of five years in prison.

Shepard asked the judge to sentence Eberhart to a year in prison or at least the 10-month sentence that former state Sen. Brent Waltz received in 2022 for scheming with a former Spectacle executive to illegally funnel casino company money to Waltz’s unsuccessful 2016 congressional campaign.

Shepard called Eberhart’s actions “an assault on the public trust.”

Shepard pointed to Eberhart working on behalf of Spectacle in seeking legislative provisions potentially saving the company tens of millions of dollars in its plans to move Gary’s twin lakefront casinos to more lucrative inland locations in Gary and Terre Haute.

Defense: Eberhart imposed ‘horrible sentence’ upon himself

Eberhart’s defense attorney, Patrick Cotter of Chicago, argued Eberhart never received any money from Spectacle and had no other instances of wrongdoing during 24 years in elected county and state offices.

Cotter said he believed federal prosecutors were wrongly using Eberhart as a “symbol” to send an anti-corruption message in a case that drew news media attention.

Cotter said sending Eberhart to prison wouldn’t lead to greater deterrence of future public corruption and that Eberhart’s actions had destroyed his reputation.

“It is a horrible sentence he has imposed upon himself,” Cotter said.

Eberhart didn’t respond to a question from State Affairs as he left the courtroom, and Cotter said they would have no further comment.

Judge said Eberhart committed crime ‘out of greed’

Brookman said federal guidelines called for tougher sentencing of public officials, while Eberhart’s sentence was mitigated by him not having any previous criminal charges and “clearly accepting” responsibility in this case.

Brookman told Eberhart that he had gained a position of public trust but that he “threw that away” by committing a crime “out of greed.”

“You stood to make a lot of money from the deal you cut,” Brookman said. “What makes the fraud, the theft, so serious is that it involves an elected official.”

Other fallout from Spectacle investigations

Eberhart’s district included what is now the Horseshoe Indianapolis horse track and casino near Shelbyville. He frequently sponsored casino-related legislation, including a multiyear push to allow live table games such as blackjack at Indiana’s two horse track casinos.

The wide-ranging 2019 measure also allowed a new casino in Terre Haute, along with reducing the Gary casino transfer fee from an earlier proposed $100 million to $20 million and enacting tax incentives that would have benefitted Spectacle. Other provisions allowed live table games at the horse track casinos and the start of sports betting in the state.

The charges against Eberhart followed the federal sentencings of Waltz and Spectacle Entertainment executive John Keeler in the campaign finance case.

Those charges led the Indiana Gaming Commission to force Spectacle and longtime Indiana casino heavyweight Rod Ratcliff to give up ownership of the Gary and Terre Haute casino projects.

Update: This story has been updated to include comment from Eberhart and other details on the case.

Tom Davies is a Statehouse reporter for State Affairs Pro Indiana. Reach him at [email protected] or on X at @TomDaviesIND.

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