2015 AG Opinions Date Description December 21, 2015 No. I15-013 (R15-017) Re: The Authority of a County Board of Supervisors Regarding the County Assessor’s Office No. I15-012 (R15-015) Re: Are chiropractors, their profession or any other profession or individual exempt from the title and term protection granted to physical therapists under A.R.S. § 32-2042(C)(D) No. I15-011 (R15-013) Re: Whether A.R.S. § 16-1019 requires an amendment No. I15-010 (R15-012) Re: Statutory Record Retention Obligations No. I15-009 (R15-021) Re: Hand Count Election Audit No. I15-008 (R15-016) Re: Whether parents can opt their children out of statewide school assessment tests No. I15-007 (R15-008) Re: Calculation of Bond Indebtedness No. I15-002 AMENDED (R15-002) Re: Use of public funds to influence the outcomes of elections No. I15-006 (R15-007) Re: May more than one non-profit organization be the "sponsoring organization" for a common raffle pursuant to section 13 3302(B)…. No. I15-004 (R15-009) Re: Immunity for Recreational Use of Aircraft on State Trust Lands No. I15-005 (R15-011) Re: Small School Weight for Charter Schools No. I15-003 (R15-006) Re: Rio Nuevo Multipurpose Facilities District No. I15-001 (R14-017) Re: Zoning Rights of Charter School Leasing Facilities December 2, 2015 December 2, 2015 November 16, 2015 October 19, 2015 October 9, 2015 July 31, 2015 July 30, 2015 July 16, 2015 July 10, 2015 June 24, 2015 June 16, 2015 February 23, 2015 MARK BRNOVICH ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL STATE OF ARIZONA June 16, 2015 Senator Bob Worsley 1700 West Washington Phoenix, Arizona 85007-2844 Re: I15-003 (R15-006) Dear Senator Worsley: You asked whether the Rio Nuevo Multipurpose Facilities District is subject to the restrictions of Article 9, Section 7 of the Arizona Constitution (the “Gift Clause”) or is exempt from those restrictions pursuant to Article 13, Section 7 of the Arizona Constitution (the “Exemption Clause”). The Exemption Clause specifically states: “[T]ax levying public improvement districts, now or hereafter organized pursuant to law . . . shall be exempt from the provisions of [the Gift Clause].” The Rio Nuevo District is a Multipurpose Facilities District organized pursuant to Arizona Revised Statutes, Section 48-4202. That provision clarifies that a district formed pursuant to § 48-4202 “is a tax levying public improvement district.” That designation is subject to any statutory limitations found elsewhere, as well as any limitations set forth in the relevant intergovernmental agreement or authorizing documents. There is no statutory limitation, nor is there any provision in the authorizing agreements1 related to the Rio Nuevo District, that affect its otherwise clear status as a “tax levying public improvement district.” Therefore, the Rio Nuevo District is subject to exemption from the Gift Clause pursuant to the Exemption Clause. Sincerely, Mark Brnovich Arizona Attorney General 1 In evaluating this request, AGO staff reviewed the following relevant “authorizing” documents: Proposition 400; the original Intergovernmental Agreement (IGA) between the City of Tucson, the City of South Tucson, and the Town of Sahaurita; the subsequent IGA involving only the City of Tucson and the City of South Tucson; and the subsequent amendment to the second IGA. 1275 WEST WASHINGTON STREET, PHOENIX, ARIZONA 85007-2926 • PHONE 602.542.4266 • FAX 602.542.4085 • WWW.AZAG.GOV STATE OF ARIZONA OFFICE OF THE ATTORNEY GENERAL ATTORNEY GENERAL OPINION No. I15-004 (R15-009) By Re: Immunity for Recreational Use of Aircraft on State Trust Lands MARK BRNOVICH ATTORNEY GENERAL July 10, 2015 To: David M. Gowan, Sr. Arizona Speaker of the House Questions Presented 1. Does the immunity offered under Arizona Revised Statute (“A.R.S.”) § 33-1551 apply to state trust lands and/or the Arizona State Land Department (the “Department”) for access to trust lands by aircraft for recreational use? 2. Does a fee in the form of a lease or a special use permit required by the Department for access to an area by aircraft and paid by (a) an individual aviator or (b) an organization on behalf of all aviators, constitute “payment of an admission fee or other consideration”? 3. What statutory changes, if any, are necessary to provide immunity for access to trust lands by aircraft for recreational use? Summary Answers 1. Under certain conditions, A.R.S. § 33-1551 provides immunity for state trust land and the Department, and for operating recreational aircraft. However, the statute would only provide immunity to the Department for operation of an aircraft on state trust land if the Department permitted an aircraft operator to use state trust land under conditions that satisfy the definition of a “recreational user” under the statute. Accordingly, immunity would apply only if the Department permitted the aircraft operator to use state trust land without “payment of an admission fee or other consideration;” in other words, under a recreational permit or by paying only a nominal fee to offset the cost of providing access to the state trust land. 2. Yes. Payments to the Department for a lease or special use permit to use state trust land would constitute the “payment of an admission fee or other consideration” because those payments are not “nominal” and are not intended merely to offset the cost of providing access. Instead, the payments are rentals based on the appraised value of the land used and the nature of the use. Furthermore, the payments are required to generate revenue for the beneficiaries of the state land trust. 3. Attorney General Opinions answer questions relating to the current state of the law and do not make recommendations for future legislation. Background Recreational Use Statute. A.R.S. § 33-1551, commonly known as the “recreational use statute,” was enacted “to encourage landowners to open their lands to the public for recreational use” by limiting the owners’ potential liability to recreational users. Dickey ex rel. Dickey v. City of Flagstaff, 205 Ariz. 1, 2, ¶ 7, 66 P.3d 44, 45 (2003). Once a landowner receives an admission fee or other 2 consideration for allowing the recreational use on its land, the landowner loses the immunity. A.R.S. § 33-1551 provides in relevant part: A. A public or private owner, easement holder, lessee, tenant, manager or occupant of premises is not liable to a recreational or educational user except on a showing that the owner, easement holder, lessee, tenant, manager or occupant was guilty of willful, malicious or grossly negligent conduct that was a direct cause of the injury to the recreational or educational user. … C. For the purposes of this section: … 5. “Recreational user” means a person to whom permission has been granted or implied without the payment of an admission fee or any other consideration to travel across or to enter premises to hunt, fish, trap, camp, hike, ride, engage in off-highway vehicle, off-road recreational motor vehicle or allterrain vehicle activity, operate aircraft, exercise, swim or engage in other outdoor recreational pursuits. The purchase of a state hunting, trapping or fishing license, an off-highway vehicle user indicia or a state trust land recreational permit is not the payment of an admission fee or any other consideration as provided in this section. A nominal fee that is charged by a public entity or a nonprofit corporation to offset the cost of providing the educational or recreational premises and associated services does not constitute an admission fee or any other consideration as prescribed by this section. Recreational user does not include a student who is registered at a school during designated times that the student is allowed to be on the school grounds as determined by district personnel or who is participating in a school-sanctioned activity. Arizona State Trust Land. The State of Arizona owns over nine million acres of state trust land, which the United States granted to the State to hold in trust solely to assist specified beneficiary purposes, primarily public education, enumerated in the Arizona Enabling Act. See New Mexico-Arizona Enabling Act §§ 24-25, Pub. L. 61-219, 36 Stat. 557 (June 20, 1910). The Enabling Act and Arizona Constitution contain express restrictions on the use and disposition of the trust’s assets to ensure that the beneficiaries receive “the most substantial support possible … and that only those beneficiaries profit from the trust.” Lassen v. Arizona ex rel. Ariz. Highway Dep’t, 385 3 U.S. 458, 467 (1967) (citing Enabling Act § 28); see also Ariz. Const. art. X, §§ 3-4. Consequently, state trust lands are distinct from public lands that are managed for the use of the general public. When the Department leases state trust land, it must receive at least appraised value and must auction all leases that are for a term greater than ten years. Enabling Act § 28; Ariz. Const. art. X, §§ 3-4. The Commissioner may also “Issue permits for short-term use of state land for specific purposes as prescribed by rule.” A.R.S. § 37-132(B)(6). Accordingly, the Department’s rules provide for “special use permits” which allow permittees “beneficial use” of state trust land “for special purposes” not appropriate for leases. Ariz. Admin. Code R 12-51101. Special use permittees must pay a fee no less “than appraised rental value of the land.” Ariz. Admin. Code R 12-5-1101(5). A state trust land “recreational permit,” expressly referenced in the recreational use statute, is distinct from a “special use permit” and is sold for a flat annual fee - $15 to individuals and $20 to families. Ariz. Admin. Code R. 12-5-1201. Analysis The recreational use statute grants immunity to owners of land, including state trust land, A.R.S. § 33-1551(A), who permit “recreational users” to use the land, A.R.S. § 33-1551(C)(5). Operating an aircraft is a use within the protection of the statute. Id. However, the statute defines a “recreational user” not only with reference to the nature of the use, but also with reference to the terms under which the landowner permits the user on the land. A “recreational user” is only a user permitted on the land “without payment of an admission fee or any other consideration.” Id. The statute expressly explains that purchase of “a state trust land recreational permit” or payment of a “nominal fee … to offset the cost of providing” access to the land “does not constitute an admission fee or any other consideration.” Id. 4 In this context, fees paid by an individual aviator or an organization on behalf of all aviators to the Department to obtain a lease or a special use permit would constitute “payment of an admission fee or other consideration.” Obtaining such instruments requires payment of rental reflecting the use and appraised value of the land, and not merely the cost of providing access to the land. See Enabling Act § 28; Ariz. Const. art. X, §§ 3-4; Ariz. Admin. Code R. 12-51101(5). Moreover, the cost would likely not be considered “nominal,” since the application fee alone would be at least $300 for a permit or $1,000 for a lease. See Ariz. Admin. Code R. 12-51201; see also Prince v. City of Apache Junction, 185 Ariz. 43, 912 P.2d 47 (Ct. App. 1996) (City not permitted to claim immunity under A.R.S. §§ 33-1551 for a softball injury when the plaintiff’s team paid a $250 entry fee to use the City’s fields), superseded by statute on other grounds as recognized in MacKinney v. City of Tucson, 231 Ariz. 584, 590 n5, 299 P.3d 1282, 1288 (Ct App. 2013). These instruments are plainly distinct from the Department’s recreational permits, for which the Department receives a $15 or $20 administrative fee. See Ariz. Admin. Code R. 12-5-1201. Conclusion Although the terms of the recreational use statute, A.R.S. § 33-1551, provide potential immunity for the State if the Department allowed aviators to use state trust land as “recreational users”, the rental charged for such use would eliminate the State’s immunity. Mark Brnovich Attorney General 5 STATE OF ARIZONA OFFICE OF THE ATTORNEY GENERAL ATTORNEY GENERAL OPINION No. I15-005 (R15-011) By Re: Small School Weight for Charter Schools MARK BRNOVICH ATTORNEY GENERAL June 24, 2015 To: Diane M. Douglas Arizona Superintendent of Public Instruction Questions Presented You have asked the following questions about Senate Bill 1476, 2015 Ariz. Sess. Laws, 52d Leg., 1st Reg. Sess., ch. 15 (SB 1476), as amended by Senate Bill 1193, 2015 Ariz. Sess. Laws, 52d Leg., 1st Reg. Sess., ch. 299 (SB 1193), legislation that affects the eligibility of certain charter schools for the Small School Weight: 1. Which charter holders are eligible for Small School Weight and which charter holders are eligible for a phase down of the Small School Weight, given the abovedescribed changes. 2. Whether the changes in the calculation of the Small School Weight as a result of SB 1476 will affect the calculation and distribution of Classroom Site Fund monies. 3. Whether the changes in the calculation of the Small School Weight as a result of SB 1476 will affect the distribution of the inflationary increase set forth in Senate Bill 1469, 2015 Ariz. Sess. Laws, 52d Leg., 1st Reg. Sess., ch. 8, § 34 (SB 1469). 4. How should the Small School Weight be calculated for charter holders that serve grades K-12, given that A.R.S. § 15-943(1) provides for separate Small School Weights for schools serving grades K-8 and schools serving grades 9-12. Summary Answers 1. A charter holder is eligible for application of the Small School Weight if that charter holder meets the definition of charter holder in A.R.S. § 15-101(3) and the student count of all charter schools held by that charter holder is less than 600. In other words, the controlling factor for eligibility as to this adjustment is the aggregate average daily membership and not the number of charters held. 2. Yes, the changes in the calculation of the Small School Weight will affect the amount of Classroom Site Fund monies that some charter schools receive. 3. Yes, the changes in the calculation of the Small School Weight will affect the distribution of the inflationary increase set forth in SB 1469. 4. For charter schools that serve students in grades K-12, the Department should separately determine the number of students in grades K-8 and 9-12, and apply the appropriate weighting factors set out in A.R.S. § 15-943(1)(a) and (b) to the K-8 students and the 9-12 students. Background Charter schools are “established by contract with a district governing board, 1 the state board of education, the state board for charter schools, a university under the jurisdiction of the Arizona board of regents, a community college district . . . or a group of community college districts . . .” A.R.S. § 15-101(4). The contract that establishes a charter school is commonly known as a charter. The entities that may establish a charter school are referred to as “sponsors.” See, e.g., A.R.S. § 15-183(C). Also defined by statute is the term “charter holder” which “means that person that enters into a charter with the state board for charter schools.” A.R.S. § 15101(3). Notably, the definition of “charter holder” does not include all of the entities permitted to sponsor charter schools. A charter holder may operate a single school. Or a charter holder might operate a number of charter schools. In such a case, the charter holder might hold one charter and operate one or more schools under that charter. Alternatively, a charter holder could hold one or more charters and operate one school for each of those charters. A charter school can serve just a few grades or it can serve grades K-8, 9-12 or K-12. The questions at issue here relate to base support level funding, which is made available to charter schools by A.R.S. § 15-185(B)(1). A.R.S. § 15-943 describes how base support level is determined: it is calculated by multiplying a school’s weighted student count by a statutorilyset base level. 2 Weighted student count is determined by applying specific weights to student count, as set out in A.R.S. § 15-943. Application of the weights increases funding. 1 In 2014, the legislature imposed a moratorium on district-sponsored charter schools through that year’s budget. 2014 Ariz. Sess. Laws, 51st Leg., 2d Reg. Sess., ch. 17, §2 (SB 1488). 2 For example, the base level for the fiscal year 2014-15 is $3,373.11. A.R.S. § 15-901(B)(2)(e). 2 Paragraph (1) of A.R.S. § 15-943 addresses the Small School Weight. A Small School Weight is a statutorily-set weight (or adjustment) to a school district’s student count for school districts with fewer than 600 students. The amount of the weight varies, depending on whether the school district serves students in grades K-8 or 9-12 and depending on the number of students. 3 A.R.S. § 15-943(1). Student count is also weighted to account for other factors, as set out in A.R.S. § 15-943(2), but those weighting factors are not relevant to this issue. While A.R.S. § 15-943 refers only to a school district’s eligibility for Small School Weight, A.R.S. § 15-185(B)(1) established that charter schools would also be funded on the basis of a base support level as prescribed in A.R.S. § 15-943. 4 For purposes of school finance, the Arizona Department of Education historically treated each separate charter school operated pursuant to an individual charter as a school district. By way of example, if a charter holder had three separate charters for three separate school sites, the Department treated each separately chartered site as a school district, even if the same charter holder held all three charters and operated the three schools as a system or set of related schools. Thus, the Department determined the student count of each individually-chartered school for purposes of determining eligibility for the Small School Weight. (E.g., if each separately chartered school had 500 students, then each would be eligible for the Small School Weight.) If, however, the charter holder had one charter and operated three school sites under that charter, the Department aggregated the student count of all three schools for purposes of determining eligibility for the Small School Weight. (E.g., if each school operated under the same charter had 250 students, none would receive the Small School Weight.) In the 2015 legislative session, the Legislature enacted SB 1476, as amended by SB 1193, with changes effective in the 2015-16 school year. It provides as follows: (b) The small school weights prescribed in section 15–943, paragraph 1 apply if a charter holder, as defined in section 15–101, holds one charter for one or more school sites and the average daily membership for the school sites are combined for the calculation of the small school weight. The small school weight shall not be applied individually to a charter holder if one or more of the following conditions exists and the combined average daily membership derived from the following conditions is greater than six hundred: (i) The organizational structure or management agreement of the charter holder requires the charter holder or charter school to contract with a specific management company. (ii) The governing body of the charter holder has identical membership to another charter holder in this state. 3 There are different Small School Weights for schools with 1-99 students, 100-499 students, or 500-599 students. A.R.S. § 15-943(1). 4 The only difference between district and charter schools, in terms of determining base support level, is the calculation of the Teacher Experience Index, as required by A.R.S. § 15-941; no Teacher Experience Index is determined for charter schools. A.R.S. § 15-185(B)(1)(a). 3 (iii) The charter holder is a subsidiary of a corporation that has other subsidiaries that are charter holders in this state. (iv) The charter holder holds more than one charter in this state. 5 (c) Notwithstanding subdivision (b) of this paragraph, for fiscal year 2015–2016 the department of education shall reduce by thirty-three percent the amount provided by the small school weight for charter schools prescribed in subdivision (b) of this paragraph. (d) Notwithstanding subdivision (b) of this paragraph, for fiscal year 2016–2017 the department of education shall reduce by sixty-seven percent the amount provided by the small school weight for affiliated charter schools prescribed in subdivision (b) of this paragraph. SB 1476 changes the way that Small School Weights are calculated for charter schools. The first sentence defines charter schools that are eligible for consideration for the Small School Weight: they must be schools where a “charter holder, as defined in section 15–101, holds one charter for one or more school sites and the average daily membership for the school sites are combined for the calculation of the small school weight.” SB 1476, 2:34-37. The next sentence describes a set of charter holders that will no longer be eligible for Small School Weight. It states “the small school weight shall not be applied individually to a charter holder if one or more of the following conditions exists and the combined average daily membership derived from those conditions is greater than 600.” SB 1476, 2:37-40. Taken together, the conditions, which are listed in subsections (i) through (iv), describe ways of organizing charter schools as a system or a set of affiliated schools. They include an organizational structure or management agreement that requires the charter holder or charter school to contract with a specific management company, identical governing bodies for charter holders, the charter holder being the subsidiary of a corporation with other charter holders as subsidiaries, or the charter holder holds more than one charter in the state. Id., 2:41-3:3. Finally, subsections (c) and (d) phase in the elimination of the Small School Weight for those schools no longer eligible, providing that it will be reduced by thirds over the next two years. Analysis The intent of the new legislation appears to be to limit the application of the Small School Weight, and in particular, to eliminate eligibility for the Small School Weight for affiliated charter schools where the total student count for all affiliated schools exceeds 600. However, the language of the first sentence introduces two potential difficulties into the process of identifying the charter schools that are eligible for the Small School Weight. In addition, questions have arisen regarding the calculation of Classroom Site Funds, pursuant to A.R.S. § 15-977, and the amount of the inflationary increase provided by Senate Bill 1469. Finally, the Department has asked how it should determine eligibility for Small School Weight for charter schools that serve 5 SB 1476 originally provided “(iv) The charter holder holds one or more charters in this state.” SB 1193 amended the provision to read, “(iv) The charter holder holds more than one charter in this state.” 4 grades K-12, because the Small School Weight varies, depending on whether a charter school serves grades K-8 or 9-12. I. Identification of Charters Eligible for Small School Weight The new legislation begins by defining a charter holder who is eligible for consideration of the Small School Weight as “a charter holder . . . [who] holds one charter for one or more school sites and the average daily membership is combined for the calculation of the small school weight.” SB 1476, at 2:34-37. The statute does not specifically address charter holders who hold more than one charter but have an aggregate student count less than 600. The statute could be read to eliminate their eligibility for Small School Weight, except that Arizona courts have made it clear that a statute’s silence cannot be conclusive as to legislative intent. Sell v. Gama, 231 Ariz. 323, 328, ¶ 21 (2013) (“we find it not plausible to interpret the statutory silence as tantamount to an implicit [legislative] intent.”) (internal quotation marks omitted, alterations in original); see also Sw. Paint & Varnish Co. v. Arizona Dep’t of Envtl. Quality, 194 Ariz. 22, 26, ¶ 21 (1999) (“We have squarely rejected the idea that silence is an expression of legislative intent.”) The silence in this case can be resolved by looking to “the context of the [legislation], the language used, the subject matter, the historical background, the effects and consequences, and the spirit and purpose of the law.” Martin v. Martin, 156 Ariz. 452, 457 (1988). By looking to the broader language and context of the legislation, it becomes clear that this legislation sought to ensure that affiliated charter schools whose aggregated student count exceeds 600 will no longer receive the Small School Weight adjustment. Thus, interpreting the silence as to charter affiliates with multiple charters and small enrollment such that these schools no longer receive this adjustment would be inconsistent with the purpose of SB 1476. This conclusion is bolstered by “phase out” language in subsections (c) and (d) of the relevant provision. It would be illogical for the legislature to slowly phase out this funding mechanism for affiliated schools with aggregate student counts elevating them out of the “small school” category, while immediately eliminating eligibility for a class of affiliated schools that remain “small” even in the aggregate. In other words, the legislature made an effort to minimize the difficulty posed by this reduction in financing by phasing it out over time for the explicitly affected schools. To interpret the statute so as to maximize the burden on schools that remain “small” even in the aggregate runs contrary to that effort. A more difficult situation is created by SB 1476’s statement that the Small School Weight applies if a “charter holder, as defined in section 15-101, holds one charter for one or more school sites.” (Emphasis supplied.) The reference to the definition of charter holder in A.R.S. § 15-101 introduces a limitation on the universe of affected entities. That statute defines a charter holder as “a person that enters into a charter with the state board for charter schools.” A.R.S. § 15-101(3). Notably, this definition does not include other entities that may grant charters, including the State Board of Education, a university under the Arizona Board of Regents, or a community college (or group of community colleges). Nor is it consistent with the definition of a charter school, found immediately adjacent, in A.R.S. § 15-101(4). That definition describes a charter school as 5 a public school established by contract with a district governing board, the state board of education, the state board for charter schools, a university under the jurisdiction of the Arizona board of regents, a community college district with enrollment of more than fifteen thousand full-time equivalent students or a group of community college districts with a combined enrollment of more than fifteen thousand full-time equivalent students pursuant to article 8 of this chapter to provide learning that will improve pupil achievement. As a result of SB 1476’s reference to the statutory definition of charter holder, the new law excludes from eligibility those charter schools that are chartered by entities other than the State Board for Charter Schools. There is no ambiguity in this reference; the legislature explicitly included a limiting provision by reference to a particular definition and there is no second, plausible interpretation of the language. See CNL Hotels & Resorts, Inc. v. Maricopa County, 230 Ariz. 21, 23, ¶ 9 (2012). To include charter schools sponsored by such other entities would effectively amend either SB 1476’s reference to A.R.S. § 15-101 or the definition of charter holder in A.R.S. § 15-101(3), 6 to include sponsors that the legislature did not reference. Because there is no ambiguity, there is no need to consider legislative history. Farris v. Advantage Capital Corp., 217 Ariz. 1, 2, ¶ 5 (2007). Even if it were appropriate to consider, however, the legislative history of SB 1476 does not explain why lawmakers excluded charter schools sponsored by entities not listed in A.R.S. § 15-101; it also does not provide any basis for including in SB 1476 charter sponsors not specifically listed there. II. Calculation of Classroom Site Fund Monies You have also asked how the changes in SB 1476 will affect the calculation of Classroom Site Fund (CSF) monies. The CSF was established pursuant to Proposition 301, and the rules governing the CSF are set forth at A.R.S. § 15-977. Subsection G describes how the funds are distributed: 6 The inconsistency between the definitions of “charter school” and “charter holder” has existed since the legislature first defined “charter holder” in 2009. Nothing in the legislative history explains why the two definitions are not consistent with each other. The definition of charter school was added in 1994; it included all entities that could sponsor charter schools at that time. House Bill 2002, 1994 Ariz. Sess. Laws, 41st Leg., 9th Spec. Sess., ch. 2. The legislature added the definition of charter holder in 2009; it has always been limited to charters given by the State Board for Charter Schools and has never included all the entities that are able to sponsor charter schools. Senate Bill 1196, 2009 Ariz. Sess. Laws, 49th Leg., 1st Reg. Sess., ch. 95. Its legislative history gives no indication as to the purpose of defining charter holder. See Fact Sheet for Senate Bill 1196 as enacted, 49th Leg., 1st Reg. Sess., at p. 3. While the definition of charter school has been updated as the entities that can sponsor charter schools has changed, the definition of charter holder has remained the same. See Senate Bill 1263, 2011 Ariz. Sess. Laws, 50th Leg., 1st Reg. Sess., ch. 344 (amending definition of charter school to include entities given the ability to sponsor charter schools during the 2010 session). The change that increased the entities that could sponsor charter schools was made in House Bill 2725, 2010 Ariz. Sess. Laws, 49th Leg., 2d Reg. Sess., ch. 332. 6 G. Monies in the [Classroom Site F]und are continuously appropriated, are exempt from the provisions of section 35-190 relating to lapsing of appropriations and shall be distributed as follows: 1. By March 30 of each year, the staff of the joint legislative budget committee shall determine a per pupil amount from the fund for the budget year using the estimated statewide weighted count for the current year pursuant to section 15-943, paragraph 2, subdivision (a) and based on estimated available resources in the classroom site fund for the budget year adjusted for any prior year carryforward or shortfall. 2. The allocation to each charter school and school district for a fiscal year shall equal the per pupil amount established in paragraph 1 of this subsection for the fiscal year multiplied by the weighted student count for the school district or charter school for the fiscal year pursuant to section 15-943, paragraph 2, subdivision (a). For the purposes of this paragraph, the weighted student count for a school district that serves as the district of attendance for nonresident pupils shall be increased to include nonresident pupils who attend school in the school district. A.R.S. § 15-977(G). In short, monies in the Classroom Site Fund are distributed based on a school district or charter school’s weighted student count, calculated pursuant to A.R.S. § 15943(2)(a), and multiplied by a per pupil amount determined by the Joint Legislative Budget Committee each year. Arizona Revised Statutes § 15-943(2)(a) specifically incorporates the Small School Weight when it states “subject to paragraph 1 of this section;” paragraph (1) of A.R.S. § 15-943 addresses the Small School Weight, and paragraph (2) describes other weights, related to factors such as ELL status, disability or homelessness. In other words, CSF monies are distributed based on weighted student count. A.R.S. § 15-185(B)(1) provides, “the charter school shall calculate a base support level as prescribed in section 15-943, except [for the conditions described in (a) 7 and (b)].” SB 1476, which adds subsections (b) through (d), then explains how weighted student count is calculated, depending on whether a school’s student count is more or less than 600 and on whether certain factors demonstrating affiliation are present. Because SB 1476 affects the calculation of weighted student count, and weighted student count is one factor in the equation for determining the allocation of CSF monies, the allocation of CSF monies is necessarily affected by SB 1476. III. Distribution of SB 1469’s Inflationary Increase You have also asked how SB 1476’s reduction in the Small School Weight should affect distribution of the inflationary increase set forth in Senate Bill 1469. 2015 Ariz. Sess. Laws, 52d Lg. 1st Reg. Sess., ch. 8, § 34 (SB 1469). Senate Bill 1469 provides that the Department shall 7 Subsection (a) prevents charter schools from having access to the Teacher Experience Index funding, as provided by A.R.S. § 15-941. This provision is not new. Previously, it was found in subsection (B)(1); with the change, it is now separately enumerated as subsection (a). 7 allocate $74,394,000 as though it were “an additional increase of $54.31 in the base level defined for fiscal year 2015-2016 in section 15-901, subsection B, paragraph 2,” but specifies that the “additional inflation amount is not an increase in the base level” as defined by A.R.S. § 15-901. SB 1469 at 25:12-24. This language clearly indicates that the inflationary increase is to be treated as though it is part of the base level. A.R.S. § 15-943(3) states that a “base support level” is calculated by multiplying the weighted student count (as determined pursuant to subsections (1) and (2)) “by the base level.” A.R.S. § 15-943(3). Because the inflationary amount is to be allocated as “if the monies were for an additional increase . . . in the base level,” the inflationary increase amount should be added to the base level, and then the base support level should be calculated by multiplying that number by the weighted student count, determined pursuant to A.R.S. § 15-943, as affected by SB 1476, if appropriate. IV. Calculation of the Small School Weight for K-12 Charter Schools Finally, you have asked how the Department should apply SB 1476 to charter schools that serve grades K-12. This question arises because A.R.S. § 15-943(1) establishes different Small School Weights for K-8 schools and for 9-12 schools. Compare A.R.S. § 15-943(1)(a) with -943(1)(b). While neither SB 1476 nor A.R.S. § 15-943 address this question, the Department has developed its own interpretation, which arises independently of the change effected by SB 1476. For charter holders that serve both K-8 and 9-12 in one school, the Department determines the number of K-8 students and the number of 9-12 students separately. If the number of K-8 students is less than 600, it applies the K-8 Small School Weight, with a similar result if the number of 9-12 students is less than 600. The Department’s practice is reasonable; under this practice, students in grade K-8 are aggregated for purposes of determining their eligibility for the weight assigned to them, while 9-12 students are considered as a separate group for the weight assigned to them. With SB 1476, the Department should now aggregate all students in grades K-8 in schools held by a single charter holder to determine whether to apply the Small School Weight, and should make similar calculation as to all students in grades 9-12. Conclusion The legislative change to eligibility for the Small School Weight will not change eligibility for those affiliated charter schools with aggregated student counts below 600, regardless of the number of charters held. It will, however, affect both the Classroom Site Fund and inflationary increase monies that some charter schools receive. Finally, the Department of Education should separately determine the number of students in grades K-8 and 9-12 for purposes of applying the relevant weighting factors. ____________________________________ Mark Brnovich Attorney General 8 STATE OF ARIZONA OFFICE OF THE ATTORNEY GENERAL ATTORNEY GENERAL OPINION No. I15-006 (R15-007) By MARK BRNOVICH ATTORNEY GENERAL Re: May more than one non-profit organization be the "sponsoring organization" for a common raffle pursuant to section 13-3302(B)…. July 16, 2015 To: Senator Steve Farley Arizona State Senate Questions Presented You have asked whether more than one nonprofit organization may be the “sponsoring organization” for a common raffle pursuant to Arizona Revised Statutes Section 13-3302(B)? Summary Answer Yes. More than one nonprofit organization may be the “sponsoring organization” for a common raffle under section 13-3302(B), provided that each organization independently meets the exclusion requirements. Background Gambling is generally illegal in Arizona. See A.R.S. § 13-3303 (Promotion of gambling), § 13-3304 (Benefitting from gambling). The Arizona Legislature has identified particular conduct that is excluded from the general prohibition. A.R.S. § 13-3302 (Exclusions); see also Ariz. Atty Gen. Op. I90-035 (1990). Of relevance to this opinion, section 13-3302(B) permits certain organizations to conduct a raffle, which would otherwise constitute unlawful gambling, under specific conditions: B. An organization that has qualified for an exemption from taxation of income under § 43-1201, subsection A, paragraph 1, 2, 4, 5, 6, 7, 10 or 11 may conduct a raffle that is subject to the following restrictions: 1. The nonprofit organization shall maintain this status and no member, director, officer, employee or agent of the nonprofit organization may receive any direct or indirect pecuniary benefit other than being able to participate in the raffle on a basis equal to all other participants. 2. The nonprofit organization has been in existence continuously in this state for a five year period immediately before conducting the raffle. 3. No person except a bona fide local member of the sponsoring organization may participate directly or indirectly in the management, sales or operation of the raffle. A.R.S. § 13-3302. The remainder of subsection B sets forth further specified exclusions relating generally to hospitals and certain non-profits engaged in child abuse prevention and related advocacy; entities meeting these criteria are permitted to contract with an outside agent for purposes of a raffle. A.R.S. § 13-3302(B)(4). Analysis Because no court has addressed this issue, it is a basic question of statutory interpretation to determine the scope of the gambling exclusion under section 13-3302(B). “Our task in interpreting the meaning of a statute is to fulfill the intent of the legislature that wrote it.” State v. Williams, 175 Ariz. 98, 100 (1993). “In determining the legislature's intent, we initially look to the language of the statute itself.” Bilke v. State, 206 Ariz. 462, 464 ¶ 11 (2003). If the statute's language is clear, we apply it “unless application of the plain meaning would lead to impossible 2 or absurd results.” Id. “The general rule that a penal statute is to be strictly construed does not apply to [Title 13], but the provisions herein must be construed according to the fair meaning of their terms to promote justice and effect the objects of the law, including the purposes stated in section 13-101.” A.R.S. § 13-104. Section 13-3302(B)(3) requires that only a “bona fide local member” of a sponsoring organization participate directly in a permitted raffle. This language does not explicitly prohibit two organizations from coming together to offer a raffle, but it could be read restrictively to imply such a prohibition given that a joint raffle would likely involve the participation of individuals who are not “bona fide local member[s]” of both organizations. Such a restrictive reading means two organizations that could legally conduct raffles independently would be guilty of illegal gambling when they do so collaboratively. Nothing in the statutory language indicates that our Legislature intended such an arbitrary result. 1 Moreover, A.R.S. § 13-104 specifically forbids such a strict construction because such an interpretation would not “promote justice and effectuate the objects of the law,” A.R.S. § 13-104, or otherwise serve the purposes of Title 13 set forth in section 13-101. As noted previously, the statute is silent as to the question presented. Statutory silence cannot be invoked as an indication of legislative intent. See, e.g., Sell v. Gama, 231 Ariz. 323, 328 ¶ 21 (2013) (“we find it not plausible to interpret the statutory silence as tantamount to an implicit [legislative] intent.”) (internal quotation marks omitted, alterations in original). This silence may be resolved by looking to “the context of the [legislation], the language used, the subject matter, the historical background, the effects and consequences, and the spirit and 1 While legislative history is not relevant here (and in general is not a reliable source of authority), it is also instructive to note that the legislative history of section 13-3302(B) is devoid of any concern regarding such collaborative raffles. 3 purpose of the law. Martin v. Martin, 156 Ariz. 452, 457 (1988). Here, by creating the nonprofit exception to the general prohibition on raffles, the Legislature expressed its concern with preserving a critical fundraising source for organizations that serve the public. By restricting “management, sales or operation” of the raffle to members of the sponsoring organization, and by strictly defining those organizations which can sponsor raffles, the Legislature codified its intent that raffles be conducted with integrity and inure to the benefit of the organization. There is no statutory language that indicates a concern with otherwise qualified organizations conducting a joint raffle. Accordingly, the intent, purpose, and fair meaning of the statute is clearly served and best effectuated if organizations that are independently qualified under § 133302(B) may cooperate in their objective to serve the public interest. 2 Conclusion More than one organization may serve as the “sponsoring organization” for a raffle under section 13-3302(B), so long as each sponsoring organization is independently qualified to conduct such a raffle under the statute. Mark Brnovich Attorney General 2 Nothing in this opinion should be read to suggest that an organization may gain a right or privilege it would not otherwise be entitled to by collaborating with another organization. This extends to the requirements in sections 13-3302(B)(1) and (3), that raffles be conducted by members of qualified organizations and that proceeds from the events redound to the benefit of the sponsoring organizations (e.g., an organization that is excepted from sections 13-3302(B)(1) and (3) cannot gain the advantage of the exception in section 13-3302(B)(4)). 4 STATE OF ARIZONA OFFICE OF THE ATTORNEY GENERAL ATTORNEY GENERAL OPINION No. I15-010 (R15-012) By Re: Statutory Record Retention Obligations MARK BRNOVICH ATTORNEY GENERAL November 16, 2015 To: Joan Clark State Librarian and Director Arizona State Library, Archives and Public Records Questions Presented You have asked the following questions about the statute establishing the Arizona State Library, Archives and Public Records (“State Library”), Arizona Revised Statutes Sections 41151 through -151.24 (“State Library Statute”): 1. Is it accurate to interpret “agencies” when used alone to include both state and local agencies? 2. Are the records of an unincorporated city or town the property of the State? Are the records of Title 48 special taxing districts property of the State? 3. Is it accurate to state that Section 41-151.19, which concerns records disposition, applies beyond counties, cities and towns, and special taxing districts to also include “public bodies” as that term is defined at Section 39-121.01(A)(2)? Summary Answers 1. No. While the term “agencies” occasionally appears unmodified in some sections of the State Library Statute, the plain language of subsequent provisions of those same sections make clear whether they apply to state agencies, local agencies, or both. 2. By the plain terms of Section 41-151.15, neither the records of unincorporated communities nor those of Title 48 special taxing districts are the property of the State. Because unincorporated communities are not “public bodies” under Arizona public records law, they are not subject to Section 41-151.15’s record preservation requirements. In contrast, Title 48 special taxing districts are public bodies and, accordingly, their records must be preserved as Section 41151.15 requires. 3. Yes, all “public bodies” as defined by Section 39-121.01(A)(1) are subject to Section 41-151.19’s record disposition requirements. A.R.S. § 39-121.01(C). Background Although the State Library can trace its roots to the first Arizona Territorial Library in 1863, the Legislature established the State Library in its current form in 1976. 1976 Ariz. Sess. Laws 326-38. The State Library is required to contain “[c]opies of current official reports, public documents and publications of state, county and municipal officers, departments, boards, commissions, agencies and institutions, and public archives.” A.R.S. § 41-151.08(A)(1). The State Library also “is the central depository of all official books, records and documents not in current use of the various state officers and departments of this state, the counties and incorporated cities and towns.” A.R.S. § 41-151.09(A). The latter materials constitute the State Archives. Id. Whereas State officers must deposit State or territorial archival material with the State Library, “[a]ny county, municipal or other public official” has the option of either retaining 2 archival materials or depositing them with the State Library for preservation. Cf. A.R.S. § 41151.09(B) and A.R.S. § 41-151.09(C). The State Library’s Director is responsible for preserving and managing “records.” A.R.S. § 41-151.12(A). As defined by the Library Statute, “‘records’ means all books, papers, maps, photographs or other documentary materials . . . made or received by any governmental agency in pursuance of law or in connection with the transaction of public business.” A.R.S. § 41.151.18. Among other duties, the State Library’s Director must establish standards and procedures for managing, retaining, and disposing of “records” so defined. A.R.S. § 41151.12(A)(1), (3). The State Library Statute should be construed with Arizona public records statutes. Section 41-151.15 provides that every “custodian of public records shall carefully protect and preserve the records.” Section 41-151.19 provides that “[e]very public officer who has public records in the public officer’s custody shall consult periodically with the state library and the state library shall determine whether the records in question are of legal, administrative, historical or other value.” These State Library Statute requirements correspond with the following public records law requirement: Each public body shall be responsible for the preservation, maintenance and care of that body’s public records, and each officer shall be responsible for the preservation, maintenance and care of that officer’s public records. It shall be the duty of each such body to carefully secure, protect and preserve public records from deterioration, mutilation, loss or destruction, unless disposed of pursuant to §§ 41-151.15 and 41-151.19. A.R.S. § 39-121.01(C). 3 Analysis 1. By Its Terms, The State Library Statute Makes Clear When the Term “Agencies” Applies to State Agencies, Local Agencies, or Both. “Our task in interpreting the meaning of a statute is to fulfill the intent of the legislature that wrote it.” State v. Williams, 175 Ariz. 98, 100 (1993). “In determining the legislature's intent, we initially look to the language of the statute itself.” Bilke v. State, 206 Ariz. 462, 464 ¶ 11 (2003). If the statute's language is clear, we apply it “unless application of the plain meaning would lead to impossible or absurd results.” Id. The State Library Statute does not define the term “local agency.” Accordingly, the term “shall be construed to the common and approved use of the language.” A.R.S. § 1-213; Circle K Stores, Inc. v. Apache Cnty., 199 Ariz. 402, 408, ¶ 18 (App. 2001) (“By declining to define a statutory term, the legislature generally intends to give the ordinary meaning to the word.”). Black’s Law Dictionary defines the term “local agency” as follows: “A political subdivision of a state. Local agencies include counties, cities, school districts, etc.” Black’s Law Dictionary 68 (8th ed. 2004). A number of State Library Statute sections apply expressly to both state and local agencies. Specifically, Section 41-151.07 applies to “state and local institutions and governmental units.” A.R.S. § 41-151.07(2). Section 41-151.08 applies to “state, county and municipal . . . agencies.” A.R.S. § 41-151.08(A)(2). Section 41-151.09 applies to “the various state officers and departments of this state, the counties and incorporated cities and towns.” A.R.S. § 41-151.09(A). Section 41-151.14 applies to “[t]he head of each state and local agency” and “[t]he governing body of each county, city, town or other political subdivision.” A.R.S. § 41-151.14(A), (B), (C). Section 41-151.15 applies to “this state or the counties and incorporated cities and towns of this state.” A.R.S. § 41-151.15(A). And Section 41-151.16 4 applies to “[e]ach agency of this state or any of its political subdivisions.” A.R.S. § 41151.16(A). The term “agencies” appears unmodified in only three State Library Statute sections. But in each case, provisions directly following the term’s initial use clarify the extent to which the subsection applies to local agencies. The first provision, Section 41-151.05 provides that “[a]fter consultation with other agencies,” the State Library Director will “adopt rules as provided by statute.” A.R.S. § 41151.05(A)(7). Whether this consultation requirement applies to State agencies, local agencies, or both depends on the context that Section 41-151.05’s subsections provide. On the one hand, the Director must adopt rules as provided by Section 11-910, which concerns supervision of county free libraries, and Section 34-502, which charges the Director with adopting rules to enforce the technology protection measures for public access computers in all public—that is, not exclusively State—libraries. A.R.S. § 41-151.05(A)(7)(b), (d); see also A.R.S. § 35-502(B), (D). On the other hand, Section 41-151.05 also requires that the Director adopt rules “for the . . . [d]escription of state publications in all formats,” which unlike the two subsections previously mentioned, would not require consultation with local agencies. A.R.S. § 41-151.05(A)(7)(a). The second provision, Section 41-151.12, which concerns records management, charges the Director with “[o]btain[ing] such reports and documentation from agencies as are required for the administration of this program.” A.R.S. § 41-151.12(A)(6). Subsequent provisions in this subsection make clear that the agencies participating in the Director’s records management program include local as well as State agencies. See A.R.S. §§ 41-151.12(7) (applying to “agencies of the state or its political subdivisions”); 151.12(9) (applying to “state agencies, political subdivisions of the state and other governmental units of this state”); and 151.12(10) 5 (also applying to “state agencies, political subdivisions of the state and other governmental units of this state”). The third provision, Section 41-151.21 applies to “[a]n agency” that has or acquires furniture, equipment or other personal property that is over 50 years old or of known historical interest. A.R.S. § 41-151.21(A). However, this section subsequently defines “agency” as “any branch, department, commission, board or other unit of the state organization that receives, disburses or extends state monies or incurs obligations against this state.” A.R.S. § 41151.21(F). By providing this definition, the Legislature intended Section 41-151.21 to apply to State agencies only. In conclusion, the plain terms of the State Library Statute show which of its provisions the Legislature intended to apply to State agencies, local agencies, or both. 2. Section 41-151.15’s Application to Unincorporated Communities and Title 48 Special Taxing Districts. a. The Records of Unincorporated Communities and Title 48 Special Taxing Districts Are Not Property of the State Under Section 41-151.15. Section 41-151.15 of the State Library Statute provides that “[a]ll records made or received by public officials or employees of this state or the counties and incorporated cities and towns of this state in the course of their public duties are the property of this state.” A.R.S. § 41151.15(A). Neither unincorporated communities nor Title 48 special taxation districts are listed among the public entities whose records are State property under Section 151.15(A). The Legislature’s omission of unincorporated communities and Title 48 special taxation districts suggests the intent to exclude them. See Stein v. Sonus USA, Inc., 214 Ariz. 200, 202, ¶ 7, 150 P.3d 773, 775 (App. 2007) (citing Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 249, 866 P.2d 1330, 1335 (1994)); see also State v. Ault, 157 Ariz. 516, 519, 759 P.2d 1320, 1323 (2008) (“Generally, when the legislature expresses a list, we assume the exclusion of items 6 not listed.”). Therefore, the records of unincorporated communities and Title 48 special taxing districts are not property of the State under Section 41-151.15. b. Title 48 Special Taxing Districts Are Public Bodies That Must Comply with Section 41-151.15 While Unincorporated Communities Are Not. Although their records are not property of the State, unincorporated communities and Title 48 special taxing districts may nevertheless be subject to Section 41-151.15’s record preservation requirements if they are “custodian[s] of public records.” A.R.S. 41-151.15(A). (“[T]he director and every other custodian of public records shall carefully protect and preserve the records.”) Whether an entity is a custodian of public records turns on whether it is a “public body” under Arizona public records law. See A.R.S. § 39-121.01(C) (“Each public body shall be responsible for the preservation, maintenance and care of that body’s public records.”) Unincorporated communities do not come within the statutory definition of “public body.” However, as both “political subdivision[s]” and “tax-supported district[s] in the state,” Title 48 taxing districts are public bodies subject to Arizona public records law and Section 41-151.15 record preservation requirements. A.R.S. § 39-121.01(A)(2). i. Unincorporated communities are not public bodies. Under Section 39-121.01(A)(2), any city or town is a “public body.” But in Arizona, a community must be incorporated to become a city or town. See A.R.S. § 9-101. An unincorporated community is “a locality in which a body of people resides in more or less proximity having common interests in such services as public health, public protection, fire protection and water which bind together the people of the area, and where people are acquainted and mingle in business, social, educational, and recreational activities.” A.R.S. § 9-101(A). Neither communities nor localities are listed among the entities that Section 39-121.01(A)(2) includes in the definition of “public body.” We therefore assume the Legislature intended to 7 exclude unincorporated communities from the reach of public records law and Section 41151.15. Accord Ault, 157 Ariz. at 519, 759 P.2d at 1323. ii. Title 48 special taxing districts are public bodies. Under Section 39-121.01(A)(2), any political subdivision or tax-supported district in the State is a “public body.” Title 48 special taxing districts are public bodies by either classification. The Arizona Constitution states that “[i]rrigation, power, electrical, agricultural improvement, drainage, and flood control districts, and tax levying public improvement districts . . . shall be political subdivisions of the state.” Ariz. Const. art. XIII, §7. The Legislature has established Title 48 special taxing districts as tax-supported districts. See A.R.S. § 48-101, et seq. Accordingly, this Office has reasoned that as an agricultural improvement and power district established as a special taxing district under Title 48, SRP is both a political subdivision and a tax-supported district and, therefore, a public body under Section 39-121.01(A)(2). See Ariz. Att’y Gen. Op. I90-0444 at 2 (1990). Consequently, this Office concluded that SRP was subject to Section 41-151.15’s predecessor statute, 1 among other statutes governing the preservation and public access to public records. Id. The same reasoning applies to all special taxing districts: as public bodies, Section 41-151.15’s public records preservation requirements apply to them. 3. Section 41-151.19 Applies to All “Public Bodies” as Defined by Section 39121.01(A)(1). Section 41-151.19 provides as follows: Every public officer who has public records in the public officer’s custody shall consult periodically with the state library and the state library shall determine whether the records in question are of legal, administrative, historical or other value. . . . Those records determined to be of no legal, administrative, historical or other value shall be disposed of by such method as the state library may specify. 1 Section 41-1347 was the predecessor of Section 41-151.15. 1976 Ariz. Sess. Law 335-37. 8 A “public officer” obligated to adhere to these requirements is “any person elected or appointed to hold any elective or appointive office of any public body and any chief administrative officer, head, director, superintendent or chairman of any public body.” A.R.S. § 39-121.01(A)(1). As previously discussed, “public bodies” include “this state, any county, city, town, school district, political subdivision or tax-supported district in this state, any branch, department, board, bureau, commission, council or committee of the foregoing, and any public organization or agency, supported in whole or in part by monies from this state or any political subdivision of this state, or expending monies provided by this state or any political subdivision of this state.” A.R.S. § 39-121.01(A)(2). Thus, public officers of any of these listed public entities are obligated to consult with the State Library for determinations of records value and disposition as set forth in Section 41-151.19. Conclusion 1. The plain language of the State Library Statute shows which of its provisions the Legislature intended to apply to State agencies, local agencies, or both. 2. The records of unincorporated communities and Title 48 special taxing districts are not State property under Section 41-151.15. However, Title 48 special taxing districts are public bodies subject to Arizona public records law and Section 41-151.15’s record preservation requirements. 3. All public bodies as defined by Section 39-121.01(A)(1) are subject to Section 41-151.19’s consultation and record disposition requirements. Mark Brnovich Attorney General 9 STATE OF ARIZONA OFFICE OF THE ATTORNEY GENERAL ATTORNEY GENERAL OPINION No. I15-011 (R15-013) By MARK BRNOVICH ATTORNEY GENERAL Re: Whether A.R.S. § 16-1019 requires an amendment December 2, 2015 To: Senator John Kavanagh Arizona State Senate Question Presented What legal impact does the recent United States Supreme Court ruling in Good News Presbyterian Church v. Town of Gilbert have on Arizona Statutes regulating political campaign signs? In particular, does the Supreme Court ruling require an amendment to Section 16-1019, Arizona Revised Statutes, in order to comply with the Court’s mandate? Summary Answer The Supreme Court’s decision does not directly impact any Arizona statutes regulating political campaign signs. It does not require an amendment to Section 16-1019 because nothing in that statute restricts speech. Background In 1962, the Arizona Legislature adopted House Bill 198, which provided misdemeanor penalties for anyone to “remove, alter, deface, or cover any political sign.” Laws 1962, Chapter 124 (HB 198) [codified as A.R.S. § 16-1312(A) (1962)]. At the time, the provision did not apply to “signs placed on private property with or without permission of the owner thereof, or signs placed in violation of state law, or county, city or town ordinance or regulation.” Id. [§ 16-1312(B)]. Since 1962, the statute has been amended a number of times. Its original function— imposing misdemeanor criminal penalties for tampering with political signs—has remained unchanged. In 2011, the Legislature significantly amended the law by: 1. Clarifying that local governments generally lack the authority to tamper with political signs that support or oppose a candidate or ballot measure and exist in a public right-of-way as long as the sign: a. does not present a public hazard, obstruct vision, or interfere with the Americans with Disabilities Act; b. meets maximum size limitations; and c. contains contact information for the candidate or campaign committee. 2. Allowing a local government to relocate signs deemed to be placed in a manner constituting an emergency, subject to certain requirements. 3. Limiting the liability of a public employee who does not remove or relocate a sign pursuant to the “emergency” provision. 4. As to the provisions in number 1, exempting “commercial tourism, commercial resort and hotel sign free zones as those zones are designated by municipalities” and setting restrictions for such zones. 5. Allowing local governments to prohibit the installation of signs on government structures. 6. Limiting the prohibitions described in number 1 above from 60 days before a primary to 15 days after a general election, in most cases. 7. Clarifying that the section “does not apply to state highways or routes, or overpasses over those state highways or routes.” A.R.S. § 16-1019. Acting under the authority of point four, municipalities have adopted ordinances creating tourism zones. See, e.g., Fountain Hills Resolution No. 2012-31 (adopted 2 November 15, 2012); Paradise Valley Resolution No. 1241 (adopted October 13, 2011). These ordinances allow municipalities to remove political signs from the designated zones. In June 2015, the United States Supreme Court decided Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218 (2015), clarifying the constitutional standard applicable to laws that restrict or limit speech based on its content. Specifically, the Court more clearly defined which laws are considered content-based and thus subject to strict scrutiny. A law subject to strict scrutiny is unconstitutional unless the government defending it can demonstrate that the law serves a compelling government interest and does so in the least restrictive manner possible. Analysis The Reed decision explicitly confirmed that any content-based government restriction of speech will be subject to the most rigorous level of review. Id. at 2227. Such restrictions will therefore most likely be found unconstitutional. See Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, (2015) (noting that only in “rare cases” will “a speech restriction withstand[] strict scrutiny”). While the Court has long required content-based restrictions to meet this very high bar, determining when a regulation is or is not content-neutral remained open until Reed resolved the question by classifying any differential treatment based on “topic” as content-based: Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This commonsense meaning of the phrase “content based” requires a court to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny. 3 135 S. Ct. at 2227 (internal citations omitted). Under this standard, courts must apply strict scrutiny to special restrictions for political signs. Reed did not, however, restrict the permissibility of traditional time, place, and manner restrictions. There are only three state laws regulating political signs in Arizona. Two of them, A.R.S. §§ 33-1261 and 33-1808, limit the ability of homeowners associations to restrict placement of political signs. A.R.S. §§ 33-1261(E), 1808(H), (I). The third statute, A.R.S. § 16-1019, imposes criminal penalties for interfering with political materials, including signs, and incorporates the exceptions described above, which allow a local government to adopt regulations relating to political signs. Because this statute explicitly references political signs, one might suppose that it runs afoul of the First Amendment based on Reed because it references a particular category of speech identified by its content. To the contrary, Reed does not invalidate Section 16-1019. Reed clarified the analytical framework applicable to sign regulations that restrict speech and thus present “the danger of censorship” at the heart of First Amendment concerns. Reed, 135 S. Ct. at 2229. But nothing in Section 16-1019 restricts speech or compels the regulation of signs. Instead, it establishes the limits—under Arizona law—of what local governments may do as they limit or regulate signs. For example, subsection (F) recognizes that municipalities may designate certain sign-free zones within which the municipality may remove political signs. While such local laws might fall within the scope of Reed’s definition of content-based regulation, Section 16-1019 itself does not constitute content-based regulation. 1 A municipality desiring to enact rules specifically targeting political signs in violation of Reed cannot rely on Section 16-1019(F) to inoculate such rules against a First Amendment 1 Justice Alito’s concurring opinion in Reed provides a number of examples of rules that are not content-based. 135 S. Ct. at 2334 (listing, inter alia, restrictions on size, illumination, off-premises placement, and number of signs). 4 challenge. The state law must now be read in light of Reed, and should thus be read as permitting municipalities to engage in sign regulation through the designation of tourism zones only to the extent that they do so in a content-neutral manner. In other words, such zones may not solely target political signs, but must employ generally-applicable time, place, and manner restrictions. That reconciliation with Reed does not affect the validity of Section 16-1019. Conclusion Arizona state statutes referencing political signs do not restrict speech, so Reed does not have implications for our state statutes. Because Section 16-1019 does not itself restrict speech, it does not implicate the First Amendment and Reed does not, therefore, invalidate this state law. There is no need to amend Section 16-1019 because of the Reed decision. ____________________________________ Mark Brnovich Attorney General 5 STATE OF ARIZONA OFFICE OF THE ATTORNEY GENERAL ATTORNEY GENERAL OPINION No. I15-012 (R15-015) By MARK BRNOVICH ATTORNEY GENERAL Re: Are chiropractors, their profession or any other profession or individual exempt from the title and term protection granted to physical therapists under A.R.S. § 32-2042(C)(D) December 2, 2015 To: Dennis Wells, Ombudsman Arizona Ombudsman-Citizens’ Aide Office (on behalf of Linda Duke, President of Arizona Physical Therapy Association) Questions Presented You have asked whether chiropractors and others are prohibited from using the word “physiotherapy” and other terms that are restricted to services provided by or under the direction of a licensed physical therapist pursuant to Arizona Revised Statutes (“A.R.S.”) § 32-2042 (C) and (D). Summary Answer Everyone in Arizona, including chiropractors, is subject to the prohibition in Section 322042 on the use of the word “physiotherapy” and other words, abbreviations or insignia indicating or implying directly or indirectly that physical therapy is provided or supplied, including the billing of services labeled as physical therapy, unless those services are provided by or under the direction of a licensed physical therapist. Background In 1997, the Federation of State Boards of Physical Therapy published The Model Practice Act for Physical Therapy: A Tool for Public Protection and Legislative Change (“Model Practice Act”) as a tool for revising, modernizing, and creating greater uniformity in physical therapy practice acts across the nation. See The Model Practice Act for Physical Therapy: A Tool for Public Protection and Legislative Change, Fifth Edition (2011). In 1998, the Legislature rewrote Arizona’s Physical Therapy Practice Act (Title 32, Ch. 19), 1 adopting a majority of the Model Practice Act. 1998 Ariz. Sess. Laws, 43d Leg., 2nd Reg. Sess, ch. 253 (H.B. 2399). To protect and avoid misleading the public, and consistent with Section 4.02 of the Model Practice Act, A.R.S. § 32-2042 restricts the use of terms associated with licensed physical therapists: C. A person or business entity or its employees, agents or representatives shall not use in connection with that person’s name or the name or activity of the business the words “physical therapy”, “physical therapist”, “physiotherapy”, “physiotherapist” or “registered physical therapist”, the letters “PT”, “LPT”, “RPT”, “MPT”, “DScPT” or “DPT” or any other words, abbreviations or insignia indicating or implying directly or indirectly that physical therapy is provided or supplied, including the billing of services labeled as physical therapy, unless these services are provided by or under the direction of a physical therapist who is licensed pursuant to this chapter. A person or entity that violates this subsection is guilty of a class 1 misdemeanor. 2 D. A person or business entity shall not advertise, bill or otherwise promote a person who is not licensed pursuant to this chapter as being a physical therapist or offering physical therapy services. 1 The regulations implementing the Arizona act are set forth at Arizona Administrative Code (“A.A.C.”) R4-24-101 to -506. 2 A.R.S. § 32-2048 authorizes the Board of Physical Therapy to investigate the unlawful practice of physical therapy, including violations of A.R.S. § 32-2042, and to seek criminal and civil penalties, as well as injunctive relief. 2 Arizona’s Physical Therapy Practice Act does not restrict a person who is licensed under any other law of this state from engaging in the profession or practice for which that person is licensed if that person does not claim to be a physical therapist or a provider of physical therapy. See A.R.S. § 32-2021(A). Amendments made to the statutes governing the profession of chiropractic are consistent with the term use restrictions set forth in A.R.S. § 32-2042. A.R.S. § 32-922.02 governs the certification of chiropractic specialties and, prior to 2010, subsection C provided for a certification to perform “physiotherapy.” In 2010, the Legislature amended A.R.S. § 32-922.02 and related statutes 3 by replacing the term “physiotherapy” with the terms “physical medicine modalities” and “therapeutic procedures.” 2010 Ariz. Sess. Laws, 49th Leg., 2nd Reg. Sess, ch. 26 (H.B. 2025). The legislative history for H.B. 2025 indicates that the Legislature made this change to update and clarify technical terms and to conform statutes relating to the profession of chiropractic with what chiropractors are licensed to do. See S. Fact Sheet for H.B. 2025, 49th Leg., 2d Reg. Sess. (Mar. 19, 2010); see also Minutes of H. Comm. on Health and Human Servs., 49th Legis., 2nd Reg. Sess. (Jan. 20, 2010); S. Comm. on Health & Med. Liability Reform Hr’g, 49th Legis., 2d Reg. Sess. (Mar. 24, 2010) (Testimony of Barry Aarons, Arizona Association of Chiropractors) 4; H. Health and Human Servs. Comm. Hr’g, 49th Legis., 2d Reg. Sess. (Jan. 20, 2010) (Testimony of Barry Aarons, Arizona Association of Chiropractors). 5 Chiropractors who received a certification in physiotherapy prior to the effective date of the amendment are now deemed to be certified in physical medicine modalities and therapeutic procedures pursuant to A.R.S. § 32-922.02(F). 3 A.R.S. § 32-924(A)(19) and A.R.S. § 32-925. 4 See http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=720 at 46:26-47:27. 5 See http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=64161 at 29:22-30:00. 3 Analysis No Arizona court has determined the scope of the prohibition of the use of the terms set forth in A.R.S. § 32-2042 (C) and (D). “Our task in interpreting the meaning of a statute is to fulfill the intent of the legislature that wrote it.” State v. Williams, 175 Ariz. 98, 100 (1993). “In determining the legislature’s intent, we initially look to the language of the statute itself.” Bilke v. State, 206 Ariz. 462, 464 ¶ 11 (2003). If the statute’s language is clear, we apply it “unless application of the plain meaning would lead to impossible or absurd results.” Id. The language of A.R.S. § 32-2042(C) and (D) is clear. The Legislature unambiguously prohibited any person or business entity from directly or indirectly using the specified terms unless the services are provided by or under the direction of an Arizona licensed physical therapist. This legislative intent is bolstered by its 2010 amendments to A.R.S. § 32-922.02 and related chiropractic care statutes which deleted all references to the restricted term “physiotherapy,” consistent with A.R.S. § 32-2042 (C) and (D). While no Arizona court has addressed this issue, other states that have addressed it have come to the same conclusion. Specifically, in Bureau of Prof’l and Occupational Affairs v. State Board of Physical Therapy, 728 A.2d 340 (Pa. 1999), chiropractors challenged a term use restriction statute substantially similar to A.R.S. § 32-2042 on the basis that it violated their constitutional freedom of expression by restricting them from advertising physical therapy services that they were allowed to perform. The Pennsylvania Supreme Court disagreed: The factor that makes restriction of the chiropractors’ advertisements of physical therapy not a violation of their constitutional freedom of expression is that their services do not amount to what is commonly understood to be the practice of physical therapy. Since the enactment of the [Pennsylvania] PT Act in 1975, the practice of physical therapy has been a regulated and licensed profession. No longer is physical therapy understood to be merely a generic term for physical treatment. Rather, it 4 consists of a statutorily defined set of activities. Because chiropractors are not licensed to perform the full range of those activities, it would mislead the public if chiropractors were permitted to advertise that they offer physical therapy, where, as occurred here, the advertisements did not indicate the very limited scope of therapy that they offer. When the public encounters an advertisement for physical therapy, its rightful expectation is that the therapy consists of services that physical therapists are licensed to perform, and that the services will in fact be performed in a lawful manner by one who is licensed to provide such services. . . . Allowing chiropractors to advertise that they perform “physical therapy” would mislead the public into believing that chiropractors are actually licensed and able to perform the full range of such therapy. The legislative ban on such advertising protects the public from deceptive commercial speech and is, therefore, constitutionally sound. Id. at 343-44. Likewise, the Delaware Attorney General has opined that Delaware’s term use restriction statute, which is substantially similar to A.R.S. § 32-2042, prohibited chiropractors who are not licensed as physical therapists from using the restricted terms. Del. Op. Atty. Gen. 87-I013. Conclusion A.R.S. § 32-2042(C) and (D) clearly prohibit any person or business entity from using terms that are restricted thereunder unless physical therapy services are provided by or under the direction of a licensed physical therapist. Mark Brnovich Attorney General 5 STATE OF ARIZONA OFFICE OF THE ATTORNEY GENERAL ATTORNEY GENERAL OPINION No. I15-013 (R15-017) By MARK BRNOVICH ATTORNEY GENERAL Re: The authority of a County Board of Supervisors regarding the County Assessor’s Office. December 21, 2015 To: Sheila Polk Yavapai County Attorney Questions Presented A. Does the Yavapai County Board of Supervisors (“BOS”) have the authority to withdraw consent for previously approved cartography and property title personnel positions within the County Assessor’s office and assign those positions to a newly formed department that reports to the BOS? B. Does the BOS usurp the County Assessor’s authority in the following situations? 1. By transferring cartography functions previously performed by the County Assessor to a county department that reports to the BOS? a. May the County Assessor rely upon cartography services provided by a county department to fulfill her statutory duties or is the Assessor required to perform her own cartography functions or otherwise supervise those functions? b. Does the assignment of assessor parcel numbers to parcels of property pursuant to the Arizona Department of Revenue (“ADOR”) guidelines by a county department, usurp the authority of the County Assessor? c. Does the assignment of tax area codes to parcels of property by a county department, usurp the authority of the Assessor? 2. 3. I. By transferring property title functions previously performed by the County Assessor to a county department that reports to the BOS? a. May the County Assessor rely upon property title functions provided by a county department to fulfill her statutory duties or is the Assessor required to perform her own property title functions or otherwise supervise those functions? b. May a county department enter affidavit of value information into the County Assessor’s database without usurping the County Assessor’s statutory duties, when such entry is a verbatim account of the affidavit information? c. Is there a usurpation of authority when affidavit of value information has been interpreted, adjusted or classified by the county department prior to entry into the County Assessor’s database? Is there a usurpation if such data entry is done with the input of the County Assessor? d. May a county department that reports to the BOS determine title and ownership of real property parcels or process splits and combination of parcels without usurping the Assessor’s statutory duties? If a[n] usurpation of authority has been found in numbers 1 or 2 above, does the County Assessor’s ultimate ability to review and override any data entered into the Assessor’s database by a county department change the analysis? Summary Answers The various questions articulated provide for a detailed review of what is, essentially, a singular primary question: Did the BOS act beyond its authority and usurp the County Assessor’s authority when the BOS removed certain personnel from the County Assessor’s control? The summary answer to that overriding question is yes, the BOS exceeded its authority. The BOS does not have the authority to withdraw cartography and title personnel from the control of the Yavapai County Assessor (“Assessor”) given that the functions of those personnel are necessary for an assessor to perform its statutory duties. Among other duties, an assessor is required to identify, by diligent inquiry, all real property in the county that is subject to taxation, to maintain uniform maps and records with assistance from ADOR, to report detailed property information on the tax roll, to account for all property in a county, and to supply 2 geographical information to various county taxing districts. Cartography and title functions are necessary to an assessor’s performance of these and many other statutory duties. II. Background A. County Assessor Enabling Authority Article 12, Sections 3 and 4 of the Arizona Constitution provide that county assessors are elected officials whose duties and powers are those “as prescribed by law.” Arizona Revised Statutes (“A.R.S.”) 11-541 similarly provides that county assessors “shall have the powers and perform the duties prescribed by law.” Every assessor must hold an assessor’s certificate issued or recognized by ADOR, which demonstrates that ADOR recognizes the assessor’s competency. A.R.S. § 42-13006. Moreover, a county assessor is “liable for all taxes on taxable property within the county which, through the neglect of the assessor, remains unassessed.” A.R.S. § 11-543. Thus, county assessors must perform, must be competent to perform, and must have the power and resources to perform their constitutional and statutory duties. B. County Assessor’s Duties County assessors are tasked with “truly and fairly determin[ing] the valuation, without favor or partiality, of all the taxable property in [their] county at its full cash value.” A.R.S. § 11-542 (assessor oath of office). Section 42-13051 provides: A. Not later than December 15 of each year the county assessor shall identify by diligent inquiry and examination all real property in the county that is subject to taxation and that is not otherwise valued by the department as provided by law. B. The assessor shall: 1. Determine the names of all persons who own, claim, possess or control the property, including properties subject to the government property lease excise tax pursuant to chapter 6, article 5 of this title. 3 2. Determine the full cash value of all such property as of January 1 of the next year by using the manuals furnished and procedures prescribed by the department. 3. List the property with the determined valuation for use on the tax roll and report to the department of education the determined valuations of properties that are subject to the government property lease excise tax pursuant to chapter 6, article 5 of this title. C. In identifying property pursuant to this section, the assessor shall use aerial photography, applicable department of revenue records, building permits and other documentary sources and technology. (Emphases added.) With respect to their duty to identify property, county assessors must maintain uniform maps and records for their county with assistance from ADOR. A.R.S. § 42-13002(A)(3). ADOR is tasked with “exercis[ing] general supervision over county assessors in administering the property tax laws to ensure that all property is uniformly valued for property tax purposes.” A.R.S. § 42-13002(A)(1). An assessor must comply with the guidelines and manuals promulgated by ADOR when assessing property. A.R.S. § 42-11054(A)(1). In ADOR’s Assessment Procedures Manual (the “Procedures Manual”), ADOR describes an assessor’s duties as follows: The County Assessor’s principle [sic] responsibilities include the location, inventorying and appraisal of all locally assessable property within their jurisdictions. The performance of these important functions requires a complete set of maps. Maps aid in determining the location of property, indicate the size and shape of each parcel, and can spatially reveal geographic relationships that contribute either negatively or positively to appraised values. In addition to the Assessors, many other governmental agencies, the general real estate community and the public rely on accurate maps. Computerized or digital mapping provides an accurate and cost effective method to map tax areas, appraisal maintenance areas and appraisal market areas. 4 Procedures Manual at 6.1.2. In furtherance of these duties the Procedures Manual tasks assessors as follows: Assessors are responsible for discovering, listing and valuing all locally assessable properties within their jurisdictions. The discovery of real property (i.e., parcels of land and any improvements on them) is accomplished through: 1. Field Surveys. 2. The processing of Conveying Documents (Affidavits of Value, deeds, etc.). 3. The creation and processing of Plat Maps (a.k.a. cadastral maps). 4. Studying aerial and ground-based Photographs. 5. The processing of Building Permits. 6. The analysis of Ownership Status Maps (obtained from the State Land Department, the Bureau of Land Management, etc.). Procedures Manual at 6.1.2-6.1.3. As the Manual further explains: “[A] well maintained cadastral mapping system (showing the extent and ownership of land) is essential to provide a standard, accurate legal description, which is needed for the accurate location, identification and inventory of property . . . . Property identification systems were designed and developed to produce a legal description, which prevents a specified parcel from being confused with any other parcel.” Procedures Manual at 6.1.3 (emphasis in original). Such duties and the resulting information enable county assessors to fulfill their statutory obligations to ensure that all property subject to the jurisdiction of the State is listed on the assessment roll and is cross-indexed. See A.R.S. §§ 42-15151 through 15153. 5 Many other corollary duties of an assessor as set forth throughout Title 42, Arizona Revised Statutes, depend upon or otherwise relate to an assessor’s mapping and title duties. i Outside of Title 42, a county assessor has many duties that require the correct identification and mapping of property. ii Moreover, the assessor is a repository of documents and reports filed by other governmental entities relating to property locations for mapping, split, and ownership purposes, documents and reports that an assessor uses to perform its property valuation and assessment obligations. iii Finally, numerous government bodies and individuals rely on the mapping and title records of county assessors to perform their obligations. iv Moreover, ADOR exercises general supervision over the assessors to ensure that all property throughout the State is fairly and uniformly valued. A.R.S. § 42-13002. ADOR has no authority over a county board of supervisors or its departments. C. County Board of Supervisors While Arizona statutes require a county board of supervisors to levy and equalize tax assessments (A.R.S. § 11-251(12)-(13)), they do not vest a county board with authority to identify property or to perform the mapping and titling functions necessary to assess property taxes. Arizona statutes presume that county boards rely upon the assessor’s records when performing their duties. See, e.g., A.R.S. §§ 40-344 (requiring the corporation commission, cities or towns, and board of supervisors to mail out notices to persons regarding the establishment of an underground conversion service area based on the records of the county assessor); 42-18303 (requiring county board of supervisors to rely on their county assessor’s records related to common areas when selling property to a contiguous property owner). 6 III. Analysis County assessors are elected officials responsible for identifying, mapping, and assessing all property in their counties for property tax and other purposes. They are also responsible for determining the ownership of property for tax and other purposes. These duties, as detailed above, derive from the Constitution and statutes. Consequently, it is beyond a county board of supervisors’ authority to divest a county assessor of those duties. Consistent with that premise, the Arizona Court of Appeals has recognized under analogous circumstances the inherent limitations on a county board of supervisors’ authority. In Romley v. Daughton, 225 Ariz. 521 (App. 2010), the Maricopa County Board of Supervisors determined that the Maricopa County Attorney had a conflict of interest that prevented him from adequately representing the Board in most civil matters. The Board established a General Litigation Department to represent the County in most new civil litigation matters in place of the County Attorney, based on cases holding that a county board could hire outside counsel where a county attorney refuses to act, is incapable of acting, or is unavailable for some other reason. The Court of Appeals determined that although the County Board could employ outside counsel in situations in which an ethical conflict existed, the County Attorney still had the power and authority to represent the County in civil litigation matters: [A] county board of supervisors would exceed its authority in effectively divesting the county attorney of his power to represent the county and its agencies without the requisite determination on a case-by-case basis of unavailability of the county attorney or a lack of harmony between the board and the county attorney. Id.at 526, ¶ 25. Similarly here, the Yavapai County Assessor must have the ability to identify and map properties and to determine the ownership of properties in order to fulfill her statutory duties relating to the valuation and assessment of property and her statutory obligations to other 7 governmental agencies. The BOS cannot remove cartography and property title personnel from the assessor’s office without unlawfully divesting the assessor of mapping and title functions that she is required to perform under state law. Further, given that ADOR has no authority over a county board of supervisors, in contrast with its general supervisory authority over assessors, transferring these functions to a board of supervisors would obstruct ADOR’s supervision of the assessment of property in Yavapai County. A. Does the Yavapai County Board of Supervisors (“BOS”) have the authority to withdraw consent for previously approved cartography and property title personnel positions within the County Assessor’s office and assign those positions to a newly formed department that reports to the BOS? No. For the reasons stated above, the BOS cannot preclude the County Assessor from controlling cartography and title departments necessary to the performance of the Assessor’s duties. Given that cartography and title functions are necessary to the Assessor’s performance of these duties, the Assessor must retain and control those departments. B. Does the BOS usurp the County Assessor’s authority in the following circumstances? 1. By transferring cartography functions previously performed by the County Assessor to a county department that reports to the BOS? Yes. The BOS could not transfer cartography functions to a county department that is not controlled by the Assessor without impairing the Assessor’s ability to perform her statutory duties, which specifically include maintaining uniform maps and records for the County with the assistance of ADOR. Moreover, ADOR’s Procedures Manual, promulgated pursuant to A.R.S. § 42-11054, requires county assessors to create and maintain maps and related documents as part of their duties. Part 6, Procedures Manual, Eff. 3/1/11; see also A.R.S. § 42-13002(A)(3)(a) (“The department shall . . . [a]ssist county assessors [i]n maintaining uniform maps and 8 records.”). Moreover, as noted above, divesting the County Assessor of these tasks also prevents ADOR from overseeing the Assessors’ mapping and related assessment duties. a. May the County Assessor rely upon cartography services provided by a county department to fulfill its statutory duties or is the Assessor required to perform its own cartography functions or otherwise supervise those functions? No. As set forth above, mapping properties and performing related cartography functions are duties the Assessor is statutorily obligated to perform in accordance with ADOR’s Procedures Manual. The BOS may not divest an assessor of those functions and of the personnel needed to perform those functions. b. Does the assignment of Assessor parcel numbers to parcels of property pursuant to the Arizona Department of Revenue (the “Department”) guidelines by a county department usurp the authority of the County Assessor? Yes. Property identification is central to the Assessor’s duties, and numerous statutes require various entities to rely on the Assessor’s parcel number or otherwise address the assessor’s issuance of a parcel number. The Assessor plainly has the power to oversee and control the issuance of parcel numbers, including the execution of parcel splits and consolidations, as required by statute and ADOR’s Procedures Manual. See, e.g., Premiere RV & Mini Storage LLC v. Maricopa Cnty., 222 Ariz. 440, 447 ¶ 29 (App. 2009) (holding that a split occurs, for tax purposes, when the assessor completes the process of identifying and valuing resulting parcels following sale of a portion of a parcel). c. Does the assignment of tax area codes to parcels of property by a county department usurp the authority of the Assessor? Yes. Creating a department not controlled by the Assessor to assign tax area codes to parcels of property would directly impair the Assessor’s ability to perform her statutory duties and comply with ADOR’s Procedures Manual. 9 2. By transferring property title functions previously performed by the County Assessor to a county department that reports to the BOS? Yes. Transferring property title functions to a county department that is not controlled by the Assessor would impair the Assessor’s ability to perform her statutorily required duty to identify property and ownership for property tax purposes. a. May the County Assessor rely upon property title functions provided by a county department to fulfill its statutory duties or is the Assessor required to perform its own property title functions or otherwise supervise those functions? As set forth above, the BOS cannot divest the Assessor of the property title functions that an assessor is obligated to perform by statute and/or in accordance with ADOR’s Procedures Manual. This question is thus moot. b. May a county department enter affidavit of value information into the County Assessor’s database without usurping the County Assessor’s statutory duties when such entry is a verbatim account of the affidavit information? No. As set forth above, statutes and ADOR’s guidelines require the Assessor to maintain and update its database. Consequently, the BOS cannot usurp that function through one of its departments. c. Is there a usurpation of authority when affidavit of value information has been interpreted, adjusted or classified by the county department prior to entry into the County Assessor’s database? Is there a[n] usurpation if such data entry is done with the input of the County Assessor? Yes. The BOS would significantly impair the ability of the Assessor to perform its duties by allowing a county department not controlled by the Assessor to interpret, adjust, or classify affidavit of value data. Divesting the Assessor of those functions would unlawfully usurp the Assessor’s authority. 10 d. May a county department that reports to the BOS determine title and ownership of real property parcels or process splits and combination of parcels without usurping the Assessor’s statutory duties? No. The BOS would impair the Assessor’s ability to perform its duties by allowing a county department not controlled by the Assessor to determine title and ownership of real property parcels or process splits or combinations of parcels. The Assessor is responsible for determining the names of all persons who own, claim, possess or control property in the County, and for processing parcel splits and combinations. Divesting the Assessor of those functions would unlawfully usurp the Assessor’s authority. 3. If a[n] usurpation of authority has been found in numbers 1 or 2 above, does the County Assessor’s ultimate ability to review and override any data entered into the Assessor’s database by a county department change the analysis? No. As explained above, the Assessor can only fulfill her statutory duties by controlling the personnel who perform the functions necessary to those duties as well as the processes by which they perform those functions. The BOS would usurp those functions by relegating the Assessor to a “review and override” role. Moreover, by removing mapping and title personnel from the Assessor’s authority, the BOS will have removed the Assessor’s ability to review and analyze the data entered into the Assessor’s database by BOS personnel. IV. Conclusion The BOS would unlawfully usurp the Assessor’s statutory authority by eliminating cartography and title personnel positions within the Assessor’s Office or by performing the Assessor’s cartography and title functions through personnel who report to the BOS. ____________________________________ Mark Brnovich Attorney General 11 i See, e.g., A.R.S. §§ 42-11009 (maintain public records related to property valuation and assessment); -11054 (follow standard appraisal methods and techniques as outlined by ADOR); -12052 (review assessment information on continuing basis to ensure proper classification of residential buildings and giving authority to assessors to enter into intergovernmental agreements with ADOR to exchange information related to same); -13004 (maintain data processing systems compatible with those of ADOR); -13151 through -13154 (identify and value golf courses); -13201 through 13206 (identify and value shopping centers); -13302 (process splits and consolidations of existing tax parcels); -13351 through -13355 (identify and value manufacturers, assemblers, and fabricators); -13401 through -13404 (identify and value common areas); -15054 (make investigations to ensure all property is included on assessor’s property lists); -15151 (prepare the assessment roll in the form and containing the information prescribed by ADOR); -16251 through -16259 (perform administrative review of error claims); -17251 (compile the assessment roll); and -17257 (keep records related to boundaries of local taxing districts and assessment districts). ii See, e.g., A.R.S. §§ 11-802 (requiring county assessor to advise county planning and zoning commissions); 15-442(C) (requiring county assessor and county superintendent to determine whether school district boundaries are in conflict with each other or other intersecting legal boundaries); 48-262(A)(1) (requiring county assessor to provide detailed list of all taxable properties within an area where one seeks a change in the boundaries of a district); 48-1594(B) (“The county assessor of each of the counties shall enter upon the rolls the property in the district assessed and taxed as required by this chapter, a description of such lands subject to assessment by the district, the name of each owner of property and the number of acres of land in each assessment, or if the owners of such lands are unknown, the lands shall be assessed to the unknown owner.”); 48-3115 (requiring county assessor to enter on assessment roll a description of the lands of the subject irrigation or water conservation district and the acreage of such land). iii See, e.g., A.R.S. §§ 11-1135 (requiring county recorder to transmit records of deeds to county assessor); 11-321 (requiring board of supervisors to transmit copy of building permits and certificates of occupancy to assessor); 33-1902 (requiring owners of residential rental property to maintain records with the assessor); 37-253 (requiring state land department to report sales of land and a description thereof to county assessor); 37-254 (requiring state land department to notify assessor and tax collector of land that reverts to state so that assessor can cancel assessment of the land); 42-6206 (government lessors to provide assessor with list of development agreements, including locations of properties subject to agreements); 48-815.02(H) (requiring county board of supervisors to submit copy of signature sheets seeking dissolution of fire district to county assessor for verification of persons and property in district); 48-3604 (requiring board of flood control district to file map showing zone and boundary of district with county assessor); see also Premiere RV & Mini Storage LLC v. Maricopa Cnty., 222 Ariz. 440 (App. 2009) (for tax purposes, tax parcel splits occur when Assessor completes the process of identifying and valuing the resulting parcels). iv See, e.g., A.R.S. § 37-1222 (requiring copy of county tax assessor’s map for proposed land exchanges with federal government); 40-344 (requiring corporation commission, cities or towns, and board of supervisors to mail out notices to persons regarding establishment of underground 12 conversion service area based on the records of the county assessor); 42-18111 (county assessor’s parcel number and description of property used for describing real property on delinquent tax list and notice of sale); 42-18202 (notice of intent to file foreclosure must be mailed to property owner of record based on records of county recorder or county assessor); 48-272 (“A special taxing district organized pursuant to this title that is submitting proposed district boundaries after November 1, 2007 shall include only entire parcels of real property within its proposed boundaries as determined by the county assessor and shall not split parcels.”); 48-620 (as to improvement districts for underground utilities and cable television, ownership of property shall be determined by records of the county assessor or other public records); 48-1084.01 (assessments for road improvement districts based on each “separate assessor’s parcel”); 48-2837 (requiring objections to extent of assessment district to show county assessor’s parcel number); 48-3701 (defining “Parcel of member land” to be “any portion of member land for which the tax assessor for the county in which the member land is located has issued a separate county parcel number.”); 48-4801 (defining “Parcel of water district member land” to be “any portion of water district member land for which the county assessor for the county in which the water district member land is located has issued a separate tax parcel number.”); 49-762.07 (requiring owners or operators of solid waste facilities to submit notice that includes the county assessor’s book, map and parcel number); 49-941 (requiring agencies and political subdivisions to send notices regarding hazardous waste to owners of real property as shown on the lists of the county assessor and ADOR). 13