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Trying Time

Ken Smith's Fight To Keep His Seat On The Amphi School Board Reaches The Courtroom.

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YOU'LL PARDON Amphitheater Public Schools Board member Ken Smith if he is less than specific about his whereabouts these days. The last time he left town, for his mother's 89th birthday, his own school board lawyer tried to get him bounced from the seat he won in an upset victory in 1998.

"I've been criticized for not letting some people know where I'm going," Smith said of his absenses from a couple of board meetings that he is barred from voting in anyway. "I can't afford to let people know, realizing the administration's penchant for using it against me. They, the administration and the Board majority, are willing to take extreme action against me while I'm gone."

Extreme enough that when Smith went to Arkansas in November to celebrate his mom's birthday, Todd Jaeger, Amphi's in-house counsel and associate superintendent, sprinted to get the reformer axed.

The ploy had some success. Anita Lohr, a Republican then exiting a 30-year career as county schools superintendent, bit and referred the matter to County Attorney Barbara LaWall's office, which promptly filed an action in Pima County Superior Court to remove Smith.

Not until Smith was forced to get a real lawyer, Bill Risner, did the backdoor maneuver get stalled. Risner managed in December to get time for discovery and on February 1 filed a motion for summary judgment.

And now Smith's whereabouts on Monday will not be a Valentine's Day mystery. Jaeger, Amphi Superintendent and the Board's majority -- Richard Scott, Gary Woodard and Virginia Houston -- will be able to find him in Superior Court as Risner argues in front of Judge Kenneth Lee why Smith should be allowed to fulfill the remaining three years of his term.

At issue, and what Jaeger happily forwarded first to Lohr's surviving chief deputy, D. Scott Little, and then to Lohr and the county attorney, is that Smith should be forced off Amphi's troubled Board because his wife, included in the mass of teachers who opted for early retirement, works 20 days a year for the district.

State law governing school districts and their boards prohibits the spouses of school board members from working in that school district.

Barbara Smith chose early retirement in January 1996 after an 18-year career as a Title 1, also known as Chapter 1, reading specialist at Nash Elementary and later teaching sixth grade at Cross Middle School.

A letter of appreciation from then-Board President Vicki Cox-Golder on January 29, 1996, to Barbara Smith, besides an ironic political memento, is among the pieces of evidence that Risner is using to show that Barbara Smith was no longer an Amphi employee.

Amphi's early retirement program, which for a teacher making $42,000 a year provides a cash benefit of $75,000, requires the 20-day-a-year work commitment.

Barbara Smith and others have the ability to choose assignments, and she has served as a teacher for remedial reading and math classes. She also has spent some days in fundraising for school programs by selling magazine subscriptions.

Still, LaWall and her deputy assigned to this matter, Paula Wilk, say that Smith must give up the seat he and Amphi voters stunningly wrested from Mike Bernal in 1998. He joined another reformer, Nancy Young Wright, who won a seat in 1996. There has been no discussion of a simple, less costly settlement involving a change in Barbara Smith's status.

Politics, Ken Smith says, is tainting the entire issue. And he says flatly that LaWall has the power to not prosecute the matter just as she and her staff choose which cases to take to trial.

LaWall, a Democrat, is seeking a second term this fall. Her chief deputy, Mary Judge Ryan, is a former teacher who worked in the civil division before her promotion in 1997 and is seeking the Democratic nomination in the District 5 race for Congress. She faces an uphill primary battle against state Sen. George Cunningham. That seat is held by Republican Jim Kolbe.

Risner, no stranger to the strange, clubby ways of Amphi, notes in court papers that Amphi informed Barbara Smith beginning in October 1993 that she was eligible for early retirement.

It also was in 1993 that Joan Leslie, then an employee benefits specialist for Amphi, described the early retirement program to the Social Security Administration.

"As a condition of this plan (the retiree) must make himself available as a 'consultant' 20 days each year provided the district desires to use his services. The monies received are in no way connected with any current services provided by the (retiree). In other words, the total sum received by (retiree) under the early retirement plan is based on his prior service with the district," Leslie explained to Social Security administrators.

When she did retire, Babara Smith also was issued a "lifetime" identification card by the Board.

Barbara Smith's pay stubs that accompany her periodic early retirement payments carry the word "Retire" and in the hours worked column is "0.00."

Moreover, state retirement officials told Jaeger in January last year -- 10 months before he made his surprising discovery that Barbara Smith and Ken Smith were married, a fact known by Superintendent Robert "Bubba" Smith (no relation) -- that 20 days service under the early retirement system was insignificant.

Donald C. Rohan, assistant director for external affairs of the Arizona State Retirement System, told Jaeger that a retiree in Amphi's early retirement plan: "Terminates the employment relationship with the district after completion of the continued employment period under the incentive plan. The remaining days of the service requirement to be worked off annually will not affect the termination of the employment relation as long as the amount of the additional work remains de minimis. The Arizona State Retirement System will accept 20 days a year as being de minimis."

Law dictionaries define de minimis as insignificant," minute, frivolous and something or some act that does not rise to a level of sufficient importance to be dealt with judicially.

Meanwhile, recall petitions filed against the Amphi majority of Scott, Houston and Woodard are close to the margin and remain under review, said County Recorder F. Ann Rodriguez.

Petitions were turned over to Rodriguez's office on December 23. And although she and her staff have, by state law, 60 days to certify if they meet the threshold of 5,042 valid signatures of Amphi district voters for each majority member, Rodriguez had predicted last month on a local radio show that verification would be completed by the end of January.

Work has been slowed for two reasons, Rodriguez, a Democrat, said. First, her staff has been tied up with preparation work, including early voting requests, for the February 22 presidential preference election. Second, workers will do a third check of the recall petitions.

"Why? Because they are so close," Rodriguez said. "And whichever side prevails, there is sure to be legal action. We want to make sure we are 100 percent accurate."

Rodriguez flatly denied the question by recall leaders that she may have been "pressured" by recall targets or their supporters within Amphi administration.

Only Houston, Rodriguez said, accepted an offer to witness a demonstration of the verification process.

That test involved Houston's own voter registration and signature.

"She was here five minutes," Rodriguez said.

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