Bill shifts oversight of voucher program
Voters rejected similar idea in Nov., foes say
Two months after voters rejected a massive expansion of Arizona’s school voucher program, a state lawmaker has introduced a new bill to alter the so-called empowerment scholarship account program.
State Rep. Mark Finchem, R-Oro Valley, has proposed legislation that would move some of the program’s administrative oversight from the Department of Education to the Treasurer’s Office.
The change is similar to the plan voters rejected as Prop. 305, which was defeated 65 percent to 35 percent in the November election. That measure would have made all students in Arizona eligible to apply for an ESA,
which takes public money from public schools and gives it parents to use for private school.
It also would have moved some of the financial oversight to the Treasurer’s Office, which some saw as a way to provide more oversight of a program that has been plagued by financial mismanagement and fraud.
The group that put Prop. 305 on the ballot and successfully campaigned to overturn the voucher expansion is vowing to fight Finchem’s House Bill 2022.
“We see this as a direct violation of what voters wanted,” Save Our Schools spokeswoman Dawn Penich-Thacker said. “If this moves forward, we will fight hard to oppose it.”
Should the legislation pass and be signed by the governor, it would likely result in a court fight over whether the defeat of Prop. 305 is voter-protected under Arizona law, meaning it could be changed only with a supermajority of the Legislature in a way that furthers the intent of what voters approved.
Finchem said the bill has nothing to do with Prop. 305 and is instead narrowly focused “cleanup” legislation that will put accounting functions of the ESA program where they belong: in the Treasurer’s Office.
“It never made sense to me” for the finance functions of the ESA program to be run by the Department of Education, Finchem said. “I wouldn’t ask the Treasurer to teach anything. Why would I ask the superintendent to do financing?”
Finchem’s bill calls for the treasurer to have exclusive authority to oversee and manage issuing requests for proposals, selecting payment processing vendors and executing contracts with vendors.
“Do we really want the superintendent of public instruction handling money? It’s not their job. It’s the treasurer’s job,” Finchem said.
Prop. 305 mandated that private financial management firm be responsible for managing the program. Finchem’s bill doesn’t mandate that a private firm oversee the ESA program, but it gives the Treasurer’s Office the exclusive oversight of managing vendors and potentially private oversight firms.
To Save Our Schools, that sounds too much like portions of the referendum voters rejected.
Penich-Thacker said Prop. 305 tried to move the administration of the program out of the Department of Education and Finchem’s bill essentially does the same thing.
“Voters rejected it 2-1,” she said. “I don’t see any indication they feel differently two months later.”
Penich-Thacker said Save Our Schools views the bill as equivalent to letting the camel’s nose into the tent to resume expanding the program.
“They always start small, and creep and creep and creep,” she said. “We’re not going to let that happen.”
Richie Taylor, communications director for Superintendent of Schools Kathy Hoffman, said the Department of Education opposes Finchem’s bill because it hinders the department’s efforts to work with the Legislature and the Treasurer’s Office.
“We don’t support this; we don’t think it’s necessary,” Taylor said.
The Department of Education already has meetings set up with Treasurer’s Office to discuss working together, Taylor said. The department wants to fix any problems with ESAs in a fiscally responsible manner, he said.
Multiple legal experts have said they consider the law unsettled on whether voter protections apply to referendums because the courts have never decided the issue.
The 1998 Voter Protection Act, which was passed by voters, said voter protections apply when voters “decide” a referendum.
“It’s never been tested in the referendum context,” said Roopali Desai, the lawyer for Save Our Schools. “What decided means is really key . ... A no vote is a decision. That indicates to me there’s a strong argument it’s voter protected.”
Staff attorneys for the Legislature wrote a memo in 2018 that concluded only a “yes” vote would be voter protected. The memo said that “when the people exercise their referendum power to ‘decide’ a measure that was previously enacted by the legislature, they are not voting on whatever general principle or subject the enacted measure might be dealing with but only on the specific language of the particular measure itself.”
However, the memo said the staff attorneys cannot be certain this would stand up to a legal challenge because the issue has never been decided by the courts.
If the bill passes, Save Our Schools would have to decide whether HB 2022 directly contradicted Prop. 305 or came close enough to challenge the law, Desai said.