2005 AG Opinions
Date

Description

December 29, 2005

No. I05-009 (R05-040)
Re: Public Benefits under Federal Law and A.R.S. § 46-140.01

December 28, 2005

No. I05-008 (R05-013)
Re: Affiliated Practice Relationships Between Dental Hygienists and Dentists

December 20, 2005

No. I05-007 (R05-006)
Re: Reporting Responsibilities of Teachers and School Volunteers under A.R.S. § 133620

November 14, 2005

No. I05-006 (R05-020)
Re: Campaign Finance Reports Filed by Candidates Pursuant to A.R.S. §§ 16-941(B)(2)

October 24, 2005

No. I05-005 (R05-011)
Re: Augmenting AIMS Scores Based on Grades in Certain Courses

July 25, 2005

No. I05-004 (R05-010)
Re: Open Meeting Law Requirements and E-mail To/From Members of a Public Body

May 23, 2005

No. I05-003 (R04-011)
Re: County Use of Highway User Revenue Funds

February 9, 2005

No. I05-002 (R04-037)
Re: AIMS Testing and Special Education

February 4, 2005

No. I05-001 (R04-038)
Re: Identification Requirements for Voter Registration

STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL

ATTORNEY GENERAL OPINION

No. I05-001
(R04-038)

by
Re: Identification Requirements For
Voter Registration

TERRY GODDARD
ATTORNEY GENERAL
February 4, 2005

To:

The Honorable Janice K. Brewer
Arizona Secretary of State

Question Presented
Under A.R.S. § 16-166(F)(1), as amended by Proposition 200, is an Arizona
driver or nonoperating identification license issued after October 1, 1996, satisfactory
evidence of United States citizenship for the purpose of registering to vote?
Summary Answer
Pursuant to A.R.S. § 16-166(F)(1), the number of a driver or nonoperating
identification license issued in Arizona after October 1, 1996, is satisfactory evidence of
United States citizenship to register to vote.
Background
A. Voter Registration Requirements in Proposition 200.
Arizona voters approved Proposition 200 in the general election of November
2004. The Proposition calls for (1) verifying the identity and eligibility of applicants for

state and local public benefits, and (2) requiring identification to register to vote and to
receive a ballot.1
Your question concerns the identification requirements of Proposition 200 when
registering to vote. Proposition 200 amended A.R.S. § 16-166, a section of the Arizona
Revised Statutes entitled “Verification of registration.” Section 16-166 now provides, in
relevant part:
F.
The county recorder shall reject any application for registration
that is not accompanied by satisfactory evidence of United States
citizenship. Satisfactory evidence of citizenship shall include any of the
following:
1.

The number of the applicant’s driver license or nonoperating
identification license issued after October 1, 1996 by the
department of transportation or the equivalent governmental
agency of another state within the United States if the agency
indicates on the applicant’s driver license or nonoperating
identification license that the person has provided satisfactory
proof of United States citizenship.

The other “satisfactory evidence” of citizenship specified in A.R.S. § 16166(F) includes a copy of a birth certificate, passport copy, naturalization
documents, other methods of proof established under the Immigration Reform and
Control Act of 1986, and an Indian affairs card number, tribal treaty card number
or tribal enrollment number. A.R.S. § 16-166(F)(2)-(5).
In addition to presenting the documentation required by A.R.S. § 16-166(F), a
person registering to vote must sign a statement declaring that he or she is a United States
citizen and acknowledging that executing a false registration is a class 6 felony. A.R.S. §

1

Arizona could not implement the provisions relating to voting and voter registration in Proposition 200
until the U.S. Department of Justice precleared them as required under the federal Voting Rights Act. 42
U.S.C. § 1973c. The Department of Justice precleared those provisions on January 24, 2005.

2

16-152(A)(14), (18). It is a state and federal crime to falsely claim to be a United States
citizen when registering to vote. A.R.S. § 16-152 (A)(18); 18 U.S.C. § 1015 (f).
B.

Proof Required to Obtain an Arizona Driver License or
Nonoperating Identification License.

Since July 1996, Arizona has required that a person establish that he or she is
lawfully present in the United States in order to obtain an Arizona driver or identification
license. 1996 Ariz. Sess. Laws, Ch. 230, §§ 5-7. (codified at A.R.S. §§ 28-3153(D), 3158(C)).

The statutes prohibit the Department of Transportation from issuing or

renewing a driver license or nonoperating identification license “for a person who does
not submit proof satisfactory to the department that the applicant’s presence in the United
States is authorized under federal law.” A.R.S. § 28-3153(D).
In addition, under a Motor Vehicle Division (“MVD”) policy, effective on or
about October 8, 2000, noncitizens of the United States that can demonstrate lawful
presence in this country are issued a Type F driver license. MVD can determine whether
a person was issued a license with a Type F designation by accessing the internal records
it maintains, but the designation is not apparent from the license face. You noted in your
opinion request that people with a Type F driver license cannot register online through
the EZ voter registration program administered by the Secretary of State and the
Department of Transportation.
Analysis
Section 16-166(F)(1), A.R.S., establishes when a driver license number or
nonoperating identification license number is satisfactory evidence of citizenship for the
purpose of registering to vote in Arizona. When interpreting a statute, the primary goal is
to effectuate the intent of its framers and, in the case of an initiative, the voters who

3

adopted it. State v. Givens, 206 Ariz. 186, 188, 76 P.3d 457, 459 (App. 2003). The
language of a statute is the best indicator of its intent. Id.
In its first clause, A.R.S. § 16-166(F)(1) establishes that the number of a driver
license or nonoperating identification license issued by the Department of Transportation
in Arizona after October 1, 1996, shall be satisfactory evidence of U.S. citizenship for the
purpose of registering to vote.2

The next clause addresses driver licenses and

identification from other jurisdictions. It permits the use of a license number issued by
the “equivalent government agency” of another state, if the license confirms that the
holder provided proof of U.S. citizenship. Under the statutory language, the requirement
that “the agency indicates on the applicant’s driver license or nonoperating identification
license that the person has provided satisfactory proof of United States citizenship”
modifies the phrase “equivalent government agency of another state.” Thus, the statute
requires that a license from another jurisdiction indicate that the person provided
satisfactory proof of United States citizenship in order for that license to be acceptable
identification to register to vote in Arizona, but an Arizona driver license is acceptable as
long as it was issued after October 1, 1996.3

2

It is unclear why the authors of Proposition 200 chose October 1, 1996 as a cutoff date. One possibility is
that they attempted to tie the voter identification rules of Proposition 200 to Arizona’s authorized presence
law which took effect August 1, 1996. The Legislature also renumbered the relevant statutes in 1996, 1996
Ariz. Sess. Laws Ch. 76, and, in 1997, approved a comprehensive rewrite of Title 28. 1997 Ariz. Sess.
Laws, Ch. 1. The rewritten version of the relevant statutes took effect October 1, 1997, exactly one year
after the date specified in A.R.S. § 16-166(F)(1). Id., §§ 188, 192, 194, 506.
3

The “last antecedent” principle of statutory construction also supports this reading of the statute. See
Tanner Companies v. Ariz. State Land Dep’t, 142 Ariz. 183, 189, 688 P.2d 1075, 1081 (App. 1984) (a
qualifying word or phrase is typically applied to the word or phrase that immediately precedes it).

4

The Legislative Council’s analysis of Proposition 200 supports this construction.
The Council’s analysis is designed to “assist voters in rationally assessing an initiative
proposal by providing a fair, neutral explanation of the proposal’s contents and the
changes it would make if adopted.” Fairness & Accountability in Ins. Reform v. Greene,
180 Ariz. 582, 590, 886 P.2d 1338, 1346 (1994). The analysis is included in the general
election publicity pamphlet that is given to each voter, A.R.S. § 19-123(A)(4) and (C),
and may be used to interpret an initiative. Calik v. Kongable, 195 Ariz. 496, 500, 990
P.2d 1055, 1059 (1999).
The Legislative Council informed voters that “Proposition 200 would require that
evidence of United States citizenship be presented by every person to register to vote.”
Arizona Secretary of State, Ballot Propositions and Judicial Performance Review 43
(Nov. 2, 2004). Regarding the evidence that would satisfy Proposition 200, the Council
advised:
Proposition 200 provides that for purposes of registering to vote,
satisfactory evidence of United States citizenship includes:
•

•

an Arizona driver or nonoperating identification license issued after
October 1, 1996.
a driver or nonoperating identification license issued by another state if
the license indicates that the person has provided proof of United
States citizenship.

Id. at 43-44. Voters were entitled to rely on this analysis in weighing the effects of
Proposition 200. Fairness & Accountability in Ins. Reform, 180 Ariz. at 590, 886 P.2d at
1346.
The difficulty presented by the question you have raised is that a person need not
be a United States citizen to obtain an Arizona driver license or identification card, even
after October 1, 1996.

The Department of Transportation verifies that a person is

5

lawfully present in the United States. A.R.S. §§ 28-3153(D), -3158(C). Thus, citizens of
other nations who are lawfully present in the United States are eligible for Arizona driver
licenses and identification cards. Moreover, an Arizona license does not indicate a
person’s citizenship on its face.
For these reasons, it might be argued that no Arizona driver license – regardless
of when it was issued – should be acceptable identification to register to vote. This
interpretation, however, is contrary to the statutory language that Arizona voters
approved in A.R.S. §16-166(F)(1). Samaritan Health Sys. v. Superior Court, 194 Ariz.
284, 289, 981 P.2d 584, 589 (App. 1998) (a legislature is presumed to express itself in
“as clear a manner as possible.”).

Such an interpretation renders meaningless the

statutory directive that an Arizona license issued after October 1, 1996 “shall be”
acceptable evidence of citizenship to register to vote and ignores the guidance voters
received in the Publicity Pamphlet. It also renders superfluous the statutory distinctions
between licenses in Arizona issued before or after October 1, 1996 and between licenses
issued by the Arizona Department of Transportation and other jurisdictions.

This

contradicts the principle that courts must “give effect to each word of the statute.” Bilke
v. State, 206 Ariz. 462, 464, 80 P.3d 269, 271 (2003). Furthermore, the authors of a
statute are presumed to know the existing law. State v. Box, 205 Ariz. 492, 496, 73 P.3d
623, 627 (App. 2003); McLaughlin v. State Bd. of Educ., 89 Cal. Rptr.2d 295, 305 (App.
1999).
Although relying on Arizona licenses issued after October 1, 1996 as
identification does not, by itself, screen all non-citizens from registering to vote, it
certainly prevents undocumented immigrants from doing so. In this way, the statutory

6

language in A.R.S. § 16-166(F)(1) furthers a purpose of Proposition 200, which focused
on issues relating to illegal immigration and undocumented immigrants from receiving
benefits for which they are not eligible.

See Proposition 200, § 2 (findings and

declarations).4 In addition, the requirement that a person registering to vote attest that he
or she is a citizen and the associated criminal penalties for violating this requirement
provide additional protections against non-citizens registering to vote in Arizona. See
A.R.S. § 16-152(A)(18); 18 U.S.C. § 1015(f). In sum, Arizona law protects against a
non-citizen registering to vote by requiring that a person attest that he or she is a citizen
of the United States and provide an Arizona driver license number issued after October 1,
1996 or some other identification specified by A.R.S. § 16-166(F)(1).
Conclusion
Under A.R.S. § 16-166(F)(1), the number of a driver or nonoperating
identification license issued in Arizona after October 1, 1996, is satisfactory evidence of
United States citizenship for the purpose of registering to vote.

Terry Goddard
Attorney General
438501

4

The Proposition’s Findings and Declarations stated:
This state finds that illegal immigration is causing economic hardship to this state
and that illegal immigration is encouraged by public agencies within this state that
provide public benefits without verifying immigration status. This state further finds
that illegal immigrants have been given a safe haven in this state with the aid of
identification cards that are issued without verifying immigration status, and that this
conduct contradicts federal immigration policy, undermines the security of our
borders and demeans the value of citizenship. Therefore, the people of this state
declare that the public interest of this state requires all public agencies within this
state to cooperate with federal immigration authorities to discourage illegal
immigration.

7

STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL

ATTORNEY GENERAL OPINION

No. I05-002
(R04-037)

by
Re: AIMS testing and special education
TERRY GODDARD
ATTORNEY GENERAL
February 9, 2005

To:

The Honorable Tom Horne
Superintendent of Public Instruction
Questions Presented
You have asked the following questions concerning the requirement that public school

students pass Arizona’s Instrument to Measure Standards (“AIMS”) in order to graduate from
high school:
1.
Whether Arizona Administrative Code (“A.A.C.”) R7-2-302(6), which mandates
that school districts develop both a course of study and graduation requirements for all
students placed in special education programs, conflicts with Arizona Revised Statutes
(“A.R.S.”) § 15-701.01(A)(3); and
2.
Whether A.A.C. R7-2-302(6) allows school districts to reference special
education placement on student transcripts.
Summary Answers
1.

The State Board of Education’s requirement in A.A.C. R7-2-302(6) that school

districts develop graduation requirements for students enrolled in special education programs is
consistent with A.R.S. § 15-701.01(A)(3) and the laws governing special education. This rule
permits school districts, through individual education programs, to implement the AIMS test in a

manner consistent with the Individuals with Disabilities Education Act. This gives the school
districts, through individual education programs, the authority to exempt special education
students from passing the AIMS test in order to graduate.
2.

School districts may reference a student’s special education placement on that

student’s transcript subject to the confidentiality requirements under the Family Education
Rights and Privacy Act of 1974 (as amended) and the Individuals with Disabilities Education
Act.1
Analysis
I.

A.A.C. R7-2-206 Complies with Statutory Authority.
A. The Statute and Rule Governing High School Graduation Requirements.
Section 15-701.01(A), A.R.S., requires the State Board of Education to establish

requirements regarding high school graduation. Specifically, the statute requires that the
State Board:
1.
Prescribe a minimum course of study, as defined in section 151012 and incorporating the academic standards adopted by the state board
of education, for the graduation of pupils from high school.
2.
Prescribe competency requirements for the graduation of pupils
from high school incorporating the academic standards in at least the areas
of reading, writing, mathematics, science and social studies.
3.
Develop and adopt competency tests for the graduation of pupils
from high school in at least the areas of reading, writing and mathematics
and shall establish passing scores for each such test.
The State Board has adopted a rule, A.A.C. R7-2-302, that sets forth the minimum
competency requirements for graduation from public high schools in Arizona. That rule

1

This Opinion does not address your third question, which asked whether the State Board could adopt a rule to
require an endorsement on a student’s diploma indicating the student’s proficiency level on the AIMS test. This
question is not answered here because Attorney General Opinions answer questions concerning existing statutes and
agency rules rather than possible statutory or rule changes.
2
A “course of study” is “a list of required and optional subjects to be taught in the schools.” A.R.S. § 15-101(9).

2

“prescribes the minimum course of study and competency requirements” for high school
graduation and also requires:
receipt of a passing score on the reading, mathematics, and writing
portions of the AIMS (Arizona's Instrument to Measure Standards)
assessment for the graduation of pupils from high school or issuance of a
high school diploma, effective for the graduation class of 2006.
A.A.C. R7-2-302.3
A.A.C. R7-2-302 has a specific provision addressing students placed in special education
programs. In A.A.C. R7-2-302(6), the State Board assigned local school district governing
boards the responsibility of developing and approving graduation requirements for students in
special education programs:
The local governing board of each school district shall be responsible for
developing a course of study and graduation requirements for all students
placed in special education programs in accordance with A.R.S. Title 15,
Chapter 7, Article 4 and A.A.C. R7-2-401 et seq. Students placed in
special education classes, 9-12, are eligible to receive a high school
diploma upon completion of graduation requirements, but reference to
special education placement may be placed on the student's transcript or
permanent file.
This rule refers to the State laws and regulations (A.R.S. §§ 15-761 to –774; A.A.C. R.72-401 to –408) which require that the State comply with federal laws governing special
education.
B. Federal Requirements Concerning Special Education.
The federal Individuals with Disabilities Education Act (“IDEA”) “ensure[s] that all
children with disabilities have available to them a free appropriate public education that
emphasizes special education and related services designed to meet their unique needs and
3

In addition to the AIMS test, the State Board has adopted alternate assessments that are to be used to assess
students with significant cognitive disabilities. See Arizona’s Instrument to Measure Standards—Alternate (AIMSA), http://www.ade.state.az.us/ess/aims-a/.

3

prepare them for employment and independent living.” 34 C.F.R. § 300.1(a). To meet the
“unique needs” of students, the IDEA requires individual education programs (IEPs) for students
with disabilities. See 34 C.F.R. § 300.346. 4
The federal regulations for the IDEA specifically address students with special education
needs and state and district assessments.5 34 C.F.R. § 300.138(a). Under these regulations,
students are required to take “general state and district-wide assessment programs, with
appropriate accommodations and modifications in administration, if necessary,” unless the
student’s IEP specifically calls for the student to take an alternate assessment. Id. Therefore, a
student in special education must take the AIMS test unless that student’s IEP specifically
indicates that the student will not participate in the exam and explains why the exam’s method of
assessment is not appropriate for that particular student.6 See 34 C.F.R. § 300.347(a)(5)(A).
Although federal law generally requires that students with IEPs take State assessments, such as
the AIMS exam, it does not require that those students pass the exam before graduating. Part of
providing an individualized education includes adopting an appropriate exit strategy for each
student. 34 C.F.R. § 300.347 (b)(1)&(2). Whether a student’s exit strategy involves passing the
State’s exit exam is a decision for that student’s IEP Team. Id. However, nothing in the IDEA
mandates different graduation requirements for special education students. See Special Sch.
Dist. of St. Louis County (MO), 16 Educ. for the Handicapped L. Rep. 307, 308 (1989).7

4

An “individualized education program” or “IEP” is a ‘comprehensive statement of the educational needs of the
disabled student and the “specially designed instruction and related services to be employed to meet those needs.”
Burlington Sch. Comm. v. Mass. Dep’t of Educ., 471 U.S. 359, 368 (1985); see also A.R.S. § 15-761(11) (defining
IEP).
5
Students with disabilities are entitled to receive necessary accommodation during testing to make allowances for
the effects of their disability. 34 C.F.R. § 300.138(a).
6
Federal law has changed in the past decade to ensure that all students are assessed. See generally High School Exit
Exams Meet IDEA – An examination of the History, Legal Ramifications, and Implications for Local School
Administrators and Teachers, 2004 BYU Educ. & L.J. 75.
7
This OCR letter to the Special School District of St. Louis County advised that a school district is not required to
award a diploma to a disabled student who does not meet the requirements for such a diploma, “regardless of

4

C.

A.A.C. R7-2-302(6) Does Not Conflict with A.R.S. § 15-701.01(A)(3) and the
State and Federal Laws Concerning Special Education.

A.A.C. R7-2-302(6) is consistent with the relevant statutory directives. “[A] rule adopted
by an administrative agency must be in accordance with the statutory authority vested in it, must
be reasonable, and must be adequately related to the purpose of the act and neither arbitrary nor
in contravention of any expressed statutory provision.” Grove v. Ariz. Criminal Intelligence Sys.
Agency (ACISA), 143 Ariz. 166, 169, 692 P.2d 1015, 1018 (App. 1984). In addition, an agency
may not adopt an administrative rule that conflicts with a statute. Ariz. Dep’t of Econ. Sec. v.
Leonardo, 200 Ariz. 74, 79-80, 22 P. 3d 513, 518-19 (App. 2001).
The express language of A.R.S. § 15-701.01(A)(3) mandates that the State Board develop
and adopt tests to determine competency for graduation from high school. The statute authorizes
the State Board to determine which “tests” are appropriate to assess a student’s proficiency and
which scores students must achieve in order to graduate from high school.8 The State Board
complied with this statutory mandate by promulgating A.A.C. R7-2-302.
Any analysis of a rule or statute regarding special education must be evaluated in light of
the relevant federal requirements which emphasize individual education plans for special

whether the handicapped student has met the requirements of the IEP.” However, the OCR letter cautioned that the
“district must notify parents in advance when successful completion of the IEP will not result in their child’s receipt
of a regular diploma so that the parents may exercise their due process rights to challenge the school’s decision.” Id.
at 308.
8
The legislative history of the statutes addressing competency test requirements is consistent with the conclusion
that there is no statutory requirement that all students pass any specific test or tests to receive a diploma. In addition
to amending A.R.S. § 15-701.01 to add the competency test requirement, in the same legislation, the Legislature
amended A.R.S. § 15-341(A)(30) to require school district governing boards to administer the State Board
prescribed competency tests. H.B. 2417, 42nd Leg., 2d Reg. Sess. (1996); 1996 Ariz. Sess. Laws, ch. 284, §15.
The original version of House Bill 2417 also contained language that would restrict governing boards from awarding
diplomas to students who did not receive a passing score on the required competency tests. Id. That language was
deleted from the version of the bill that was ultimately enacted. Ariz. State Senate, Final Rev. Fact Sheet for H.B.
2417, 42nd Leg., 2d Reg. Sess. at 9 (1996); Compare Introduced version, H.B. 2417, 42nd Leg., 2d Reg. Sess., at §
12 (A.R.S. § 15-341(A)(31)) with 1996 Ariz. Sess. Laws, ch. 284, § 15 (A.R.S. § 15-341(A)(31) (indicating removal
of requirement that governing board award diplomas only to those pupils receiving passing score on competency
tests.)

5

education students.

See 34 C.F.R. § 300.1 (describing purpose of the IDEA to provide

individualized education for students with special education needs). Recognizing the need for
additional flexibility for students in special education programs, the State Board delegated to the
local governing board of each school district the task of developing a course of study and
graduation requirements for all students placed in special education programs. A.A.C. R7-2302(6).

This approach ensures that the individual needs of students in special education

programs are considered, as required by federal law. See 34 C.F.R. § 300.1 (purpose of the IDEA
is to provide an individualized education for students with special education needs). Under this
rule, school districts may exempt special education students from passing the AIMS test in order
to graduate, if that is established in the IEP following the parameters established in federal law.
In adopting A.A.C. R7-2-302(6), the State Board placed the decision of graduation
competency in the hands of the local educational agencies responsible for providing an
individualized education for students with special education needs.

The rule establishes

graduation requirements as required by A.R.S. § 15-701.01(A) in a manner that is compatible
with the purpose and intent of the IDEA in that it enables school districts to further tailor their
educational services to meet the unique needs of their special education students. Therefore,
A.A.C. R7-2-302(6) is consistent with statutory authority.
II.

Designating Special Education Status is Subject to Confidentiality
Requirements of FERPA and IDEA.

A.A.C. R7-2-302(6) also allows school districts to reference students’ special education
status on their individual transcripts. The recording and maintenance of student educational
records in Arizona is generally governed by A.R.S. § 15-141, which requires that all Arizona
educational records be maintained, released, and disclosed in accordance with the policies and

6

procedures laid out in the Family Education Rights and Privacy Act of 1974 (“FERPA”). 20
U.S.C. § 1232g(b). FERPA states, in pertinent part:
No funds shall be made available under any applicable [federal] program to any
educational agency or institution which has a policy or practice of permitting the
release of education records . . . of students without the written consent of their
parents to any individual, agency or organization.”
Id. at § 1232g(b)(1).
FERPA defines educational records as “those records, files, documents, and other
materials which (i) contain information directly related to a student; and (ii) are maintained by an
educational agency or institution.”

20 U.S.C. § 1232g (a)(4)(A);

Student transcripts are

education records and subject to FERPA because they contain information such as grades and
test scores and are maintained by school districts. Under FERPA, information contained in the
students' transcripts must remain confidential unless disclosure is authorized by the students'
parents.9
The IDEA creates additional procedures to protect the confidentiality of personally
identifiable information at collection, storage, disclosure and destruction stages. See 20 U.S.C.
§§ 1412(a)(8); 1417(c); 34 C.F.R. §§ 300.572 to .577. The IDEA also requires school district
personnel to notify the parents of special education students when personally identifiable
information is no longer needed to educate the student, and then to destroy such information
upon a parent’s request. Id., 34 C.F.R. § 300.573. Information regarding the students name,
address, grades, attendance record, classes attended, grade level completed and year completed,

9

Parental rights under FERPA transfer to the student once the student reaches the age of 18 or enrolls in a
postsecondary institution. 20 U.S.C. § 1232g(d). Parental rights under IDEA may not transfer to the student at the
age of 18 if the student is incompetent or lacks the ability to provide informed consent with respect to his or her
educational program. See 34 C.F.R. § 300.517.

7

however, may be maintained without limitation. 34 C.F.R. § 300.573(b). These procedural
requirements would apply to any information on the student transcripts.
There is no definitive guidance regarding how courses may be designated on a transcript.
In 1996, the U.S. Department of Education’s Office of Civil Rights ("OCR") issued an advice
letter to Montana's State Director of Special Education Office of Public Instruction (the "Letter")
discussing certain aspects of the issue. Letter to Runkel, 25 Individual with Disabilities Educ. L.
Rep. 387 (Letter dated Sept. 30, 1996). The Letter acknowledged that "there is yet no definite
standard[] enunciated in any court or OCR decision to indicate exactly what terms are
permissible" on a student transcript. Id. at 389. However, the Letter cautioned that "if the course
designation suggests that [such designation] only is used in special education programs involving
students with disabilities . . . it may be a violation ." Id.
should have “a more general connotation.” Id.

Instead, labels used on a transcript

A.A.C. R7-2-302(6) plainly permits some

designation regarding placements on student transcripts, and school district attorneys should
consult federal guidance, such as the Letter, to determine how a particular placement may be
referenced on a transcript.
Conclusion
A.A.C. R7-2-302(6), which permits school districts to establish graduation requirements
for students in special education programs, is consistent with the requirements in A.R.S. § 15701.01(A) and the requirements governing special education. Under this rule and federal laws
governing special education, school districts may, through an IEPs, exempt special education
students from passing the AIMS test in order to graduate from high school.

8

In addition, A.A.C. R7-2-302(6) permits school districts to identify a student’s special
education placement on that student’s transcript; however, the transcripts are subject to
confidentiality requirements under FERPA and IDEA.

Terry Goddard
Attorney General
438485

9

STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL
No. I05-003
(R04-011)

ATTORNEY GENERAL OPINION
by

Re: County Use of Highway User Revenue
Funds

TERRY GODDARD
ATTORNEY GENERAL
May 23, 2005
TO:

Debra Davenport, Auditor General
Question Presented
You have asked whether counties may expend Highway User Revenue Fund (“HURF”)

monies to pay expenses such as:
•
•
•
•
•
•
•

Legislative monitoring services
Public outreach and community relations
Regional and environmental planning
Traffic and safety studies
Development services including permitting, zoning and inspection
Geographic Information System programming and analysis
Administrative Costs
o Transportation Department management and administrative support
o Overhead for County central services such as accounting, payroll, human
resources and procurement
o Information technology support
o County self-insurance premiums
o Audit costs

Summary Answer
A county may spend HURF monies for the expenses in question only if the expenditure is
directly related to a highway or street purpose under Article IX, § 14 of the Arizona Constitution.
If an expenditure only partially relates to a highway or street purpose, counties may use HURF
monies only for the portion that directly relates to that purpose.
Background
The revenues that the State receives from licenses, taxes, penalties, and fees for vehicle
registration, driver’s licenses, and fuel taxes are deposited into the HURF. Arizona Revised
Statutes (“A.R.S.”) § 28-6501. These restricted monies may only be spent for the purposes
prescribed in Article IX, § 14 of the Arizona Constitution1. The use of HURF monies is
restricted to “highway and street purposes.” Counties may use HURF monies for “highway and
street purposes including costs of rights of way acquisitions and expenses related thereto,
construction, reconstruction, maintenance, repair, roadside development, of county . . . roads,
streets, and bridges and payment of principal and interest on highway and street bonds.” Ariz.
Const. art. IX, § 14. This list of the permissible uses of HURF in Article IX, § 14 monies is not
exhaustive. Ariz. Att’y. Gen. Op. No. I92-004. HURF monies may be used for any activity that
has a “highway or street purpose,” even if the activity is not specifically enumerated in Article
IX, § 14. Id.; John E. Shaffer Enter. v. City of Yuma, 183 Ariz. 428, 433, 904 P.2d 1252, 1257
(App. 1995).
This Office has previously advised that HURF monies may be used to “construct county
highway offices, storage buildings, garages, appurtenances, fencing, and other related facilities to
house county highway officials and employees so long as the duties of those officials and

1

Monies placed in the HURF from the lottery and excess weight violation fines are not subject to the
constitutional use restrictions. Ariz. Att’y. Gen. Op. No. I84-087.

2

employees are directly related to [highway or street purposes].” Ariz. Att’y. Gen. Op. No. I84087. However, HURF monies may not be used to create an assurance fund for underground
gasoline storage tanks because this does not serve a highway or street purpose. Ariz. Att’y Gen.
Op. No. I89-085. There are also some significant differences between how state and counties
may use HURF monies. The State may use HURF monies for “expenses of state enforcement of
traffic laws and state administration of traffic safety programs.” Ariz. Const. art. IX, § 14
(emphasis added). The counties are not authorized to use HURF monies for these purposes. Id.;
Ariz. Att’y. Gen. Op. No. I99-003.
The Auditor General or a contracted Certified Public Accounting firm annually audits
each county. A.R.S. § 41-1279.21. Counties must provide financial information “that verifies
that highway user revenue fund monies received by the county pursuant to title 28, chapter 18,
article 2 and any other dedicated state transportation revenues received by the county are being
used solely for the authorized transportation purposes.” A.R.S. § 41-1279.21(A)(1).
You have asked for an opinion on whether several categories of expenses are authorized
County HURF expenditures.
Analysis
The key to analyzing the specific expenditures in your opinion request is whether they, in
fact, relate directly to “street and highway purposes.” Most of the expenditures mentioned in
your opinion request could, under some circumstances, be a permissible expenditure of HURF
monies pursuant to Article IX, § 14 of the Arizona Constitution.
1.

Public Outreach and Community Relations.

A public hearing must be held to benefit the residents and community before any
highway is built using federal monies. 23 U.S.C. § 128. Pursuant to this federal requirement and

3

in other situations as a matter of policy, the Arizona Department of Transportation (“ADOT”)
and county, city and town transportation departments hold public hearings regarding road
construction projects. These hearings allow the transportation departments to learn about any
concerns the community may have about the proposed project and help resolve these issues
before construction begins.

This type of public outreach and community relations is a

permissible HURF expenditure, but only public outreach and community relations activities that
relate directly to street and highway purposes are permitted HURF expenses.
2.

Geographic Information System Programming and Analysis.

Geographic Information System programming and analysis used to plan design, maintain
public roadways relates directly to a street and highway purpose and is a permitted HURF
expense. Other uses of this technology that do not directly relate to street or highway purposes
would not be a permissible use of HURF monies.
3.

Transportation Management and Administrative Support and Information
Technology Support.

Expenses for transportation management and administrative support and information
technology support for county transportation departments relates directly to “highway and street”
purpose and are therefore, permitted HURF expenses. Counties may use HURF funds for
administrative expenses that support the maintenance, repair or construction of highways or
streets. See Shaffer Enterprises, 183 Ariz. at 432-433, 904 P.2d at 1256-57. Arizona and other
states have recognized that “maintenance” in state constitutional provisions regarding highway
funds is a broad term that includes “the doing of everything necessarily and appropriately
connected with and incidental to the laying out, opening, and the construction of public roads

4

and the maintenance of an efficient road system.” 2 Ariz. Att’y Gen. Op I84-087 (citing State ex
rel. King County v. Murrow, 93 P.2d 304, 307 (Wash. 1939)). Based on this reasoning, various
administrative expenses related to county highway and road purposes are legitimate HURF
expenditures, but similar services that are unrelated to the county’s work constructing, repairing
and maintaining streets and highways are not legitimate HURF expenditures.
4.

Regional and Environmental Planning.

Expenses of regional and environmental planning that directly relate to a “highway and
street purposes” are allowable HURF expenses. This might include for instance, expenses paid
to research the region and the environment in which the county plans to build a road, and studies
to determine how to best construct the road. As is true of other expenditures, regional and
environment planning unrelated to highway and street purposes are not appropriate HURF
expenditures.
5.

Legislative Monitoring Services.

Because “everything necessarily and appropriately connected with and incidental to the
laying out, opening, and the construction of public roads and the maintenance of an efficient road
system” is an allowable HURF expense, Ariz. Att’y Gen. Op. I84-087, certain “legislative
monitoring” expenses may be permissible HURF expenditures.
For instance, in the 2004 legislative session, the Legislature amended A.R.S. § 11-269.03
to allow political subdivisions to enter into agreements with ADOT for accelerated right of way
acquisitions, design or construction of eligible projects and to pledge excise taxes to secure
borrowing for advance monies to ADOT. 2004 Ariz. Sess. Laws Ch. 167. Monitoring this
legislation could directly relate to street and many highway purposes.

2

Only “legislative

See also Shaffer Enterprises, 183 Ariz. at 433, 904 P.2d at 1257; Rich v. Williams, 341 P.2d 432, 437
(Idaho 1959); Crow v. Tinner, 47 S.W.2d 391, 392-93 (Tex. Civ. App. 1932).

5

monitoring services” directly related to street and highway purposes is a legitimate HURF
expenditure.
6.

Development Services Such as Permits, Zoning and Inspection.

The phrase “development services” typically applies to services relating to commercial or
residential development. The term does not generally encompass services that are directly
related to “construction, reconstruction, maintenance, repair, [or] roadside development [ ] of
county . . . roads, streets, and bridges”

Ariz. Const. art. IX § 14.

Assuming that this

understanding of the term “development services” is correct, these services would not be
permissible HURF expenditures.

To the extent that a county could establish that the

development services are, in fact, directly related to highway and street purposes (rather than
those activities traditionally associated with this term), they would be allowable HURF
expenditures.
7.

Overhead for County Central Services – Payroll, Human Resources, and
Procurement.

Overhead expenses for centralized county services are allowable HURF expenses only to
the extent that they are directly related to street and highway purposes. HURF monies may be
used to reimburse a department that actually performs operational and overhead support for
‘highway and street purposes’.” Shaffer, 83 Ariz. at 434, 904 P.2d at 1258.
8.

County Self-Insurance Trust Fund Premiums.

Counties may self-insure against “property loss sustained or lawful claim of liability or
fortuitous loss made against the . . . county . . . or its elected or appointed officials, employees or
officers.” A.R.S. § 11-981(A)(2). The funds to pay for this insurance are set aside in a trust
fund. Id. at (B). This self-insurance trust fund is also used to pay “[h]ealth, accident, life or
disability benefits for the employees or officers of the . . . county . . . and their dependents.” Id.,

6

at (A)(1). Courts in other jurisdictions have held that funds similar to HURF may not be used to
pay personal injury judgments State ex rel. Varnado v. Louisiana Highway Comm’n, 147 So. 361
(La. 1933). It follows, therefore, that HURF monies may not be used to pay premiums related to
this type of liability. To the extent, however, the trust fund covers insurance for employees
whose work directly relates to highways and streets, those costs would be legitimate HURF
expenditures.
9.

Traffic and Safety Studies

Traffic and safety studies conducted to determine the effect of specific construction
projects or road closures on the flow of traffic or driver safety are incident to construction and a
permissible HURF expense. However, counties may not use HURF monies for traffic and safety
studies directed toward the creation or implementation of traffic safety programs or the
enforcement of traffic laws. Only the State is specifically authorized to use HURF monies for
such purposes. Ariz. Att’y Gen. Op. I99-003.
10.

Audits

Annual audits are performed to ensure HURF monies are used solely for authorized
transportation purposes set forth in the Arizona Constitution, Article IX, § 14. A.R.S. § 411279.21(A)(1). Although the audit verifies whether the HURF expenditures were consistent with
constitutional requirements, the audit itself does not typically further the county’s work to
construct, maintain or repair its roadways. As is true for other expenses, a county would have to
establish that audit expenses were directly related to street and highway purposes to be a
legitimate HURF expenditure.

7

Conclusion
Counties may use HURF monies only for “highway and street purposes including costs
of rights of way acquisitions and expenses related thereto, construction, reconstruction,
maintenance, repair, [and] roadside development of county, city and town roads, streets and
bridges.” In general, a fact-specific analysis of the purpose of specific expenditures is necessary
to determine whether HURF monies may be used for all or a portion of certain expenses.

Terry Goddard
Attorney General

434539

8

STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL

ATTORNEY GENERAL OPINION

No. I05-004
(R05-010)

by
Re: Open Meeting Law Requirements and
E-mail to and from Members of a Public
Body

TERRY GODDARD
ATTORNEY GENERAL
July 25, 2005
To:

Donald M. Peters, Esq.
Miller, LaSota & Peters
722 East Osborn Road, Suite 100
Phoenix, Arizona 85014
Pursuant to Arizona Revised Statutes (“A.R.S.”) §15-253(B), you submitted for

review your opinion to the president of the Washington Elementary School District
(“District”)

Governing

Board

(“Board”)

regarding

electronic

mail

(“e-mail”)

communications to and from members of the Board and Arizona’s Open Meeting Law
(“OML”).
This Opinion revises your analysis to set forth some parameters regarding e-mail
to and from members of a public body and is intended to provide guidance to public
bodies throughout the State that are subject to the OML. See Ariz. Att’y Gen. Op. I98006 at 2, n.2.

Question Presented
What are the circumstances under which the OML permits e-mail to and from
members of a public body?
Summary Answer
Board members must ensure that the board’s business is conducted at public
meetings and may not use e-mail to circumvent the OML requirements. When members
of the public body are parties to an exchange of e-mail communications that involve
discussions, deliberations or taking legal action by a quorum of the public body
concerning a matter that may foreseeably come before the public body for action, the
communications constitute a meeting through technological devices under the OML.
While some one-way communications from one board member to enough members to
constitute a quorum would not violate the OML, an e-mail by a member of a public body
to other members of the public body that proposes legal action would constitute a
violation of the OML.
Analysis
The OML is intended to open the conduct of government business to public
scrutiny and prevent public bodies from making decisions in secret. See Karol v. Bd. of
Educ. Trs., 122 Ariz. 95, 97, 593 P.2d 649, 651 (1979). “[A]ny person or entity charged
with the interpretation [of the OML] shall construe any provision [of the OML] in favor
of open and public meetings.”

A.R.S. § 38-431.09.

In addition, devices used to

circumvent the OML and its purposes violate the OML and will subject the members of

2

the public body and others to sanctions.1 See e.g. Ariz. Att’y. Gen. Ops. I99-022, n. 7;
I75-7. These principles guide the analysis of the use of e-mails by members of a public
body. E-mail communications to or from members of the public body are analyzed like
any other form of communication, written or verbal, in person or through technological
means.
A. An Exchange of E-mails Can Constitute a Meeting.
1. A Meeting Can Occur Through Serial Communications between a Quorum of the
Members of the Public Body.
All meetings of public bodies must comply with the OML.2 The OML defines a
“meeting” as:
the gathering, in person or through technological devices, of a quorum of
members of a public body at which they discuss, propose or take legal
action, including any deliberations by a quorum with respect to such
action.
A.R.S. § 38-431(4).
The OML does not specifically address whether all members of the body must
participate simultaneously to constitute a “gathering” or meeting.

However, the

requirement that the OML be construed in favor of open and public meetings leads to the
conclusion that simultaneous interaction is not required for a “meeting” or “gathering”
1

A.R.S. § 38-431-.07 (A) provides for penalties for violating the OML against not only members of the
public body, but also against “[a person] who knowingly aids, agrees to aid or attempts to aid another
person in violating [the OML].”
2

A “public body” subject to the OML includes:
the legislature, all boards and commissions of this state or political subdivisions, all
multimember governing bodies of departments, agencies, institutions and
instrumentalities of the state or political subdivisions, including without limitation all
corporations and other instrumentalities whose boards of directors are appointed or
elected by the state or political subdivisions. Public body includes all quasi-judicial
bodies and all standing, special or advisory committees or subcommittees of, or
appointed by, such public body.
A.R.S. § 38-431(6).

3

within the OML. “Public officials may not circumvent public discussion by splintering
the quorum and having separate or serial discussions. . . .. Splintering the quorum can be
done by meeting in person, by telephone, electronically, or through other means to
discuss a topic that is or may be presented to the public body for a decision.” Arizona
Agency Handbook § 7.5.2. (Ariz. Att’y Gen. 2001) Thus, even if communications on a
particular subject between members of a public body do not take place at the same time
or place, the communications can nonetheless constitute a “meeting.” See Del Papa v.
Board of Regents, 114 Nev. 388, 393, 956 P. 2d 770, 774 (1998) (rejecting the argument
that a meeting did not occur because the board members were not together at the same
time and place)3; Roberts v. City of Palmdale, 20 Cal. Rptr. 2d 330, 337, 853 P. 2d 496,
503 (1993) (“[A] concerted plan to engage in collective deliberation on public business
through a series of letters or telephone calls passing from one member of the governing
body to the next would violate the open meeting requirement.”)4
2. Discussion, Proposals and Deliberations Among a Quorum of a Public Body Must
Occur at a Public Meeting.
A “meeting” includes four types of activities by a quorum of the members of the
public body: discussing legal action, proposing legal action, taking legal action, and
deliberating “with respect to such action[s].” A.R.S. § 38-431(4).

Three of these

activities necessarily involve more than a one-way exchange between a quorum of
members of a public body.
3

Like the OML, Nevada’s open meeting law defines a “meeting” as a gathering of a quorum of members
of the public body. Nev. Rev. Stat. 241.015(2).
4

This Office declines to follow Beck v. Shelton, 267 Va. 482, 491, 593 S.E.2d 195, 199 (2004) because of
differences between Arizona’s law and Virginia’s. In Beck, the court concluded that “the term [‘assemble’]
inherently entails the quality of simultaneity.” Further, the court observed that “[w]hile such simultaneity
may be present when e-mail technology is used in a ‘chat room’ or as ‘instant messaging,’ it is not present

4

For example, the ordinary meaning of the word “discuss” suggests that a
discussion of possible legal action requires more than a one-way communication. See
Webster’s II New College Dictionary 385 (1994) (defining “discuss” as “to speak
together about.”) Likewise, the term “deliberations” requires some collective activity.
See Ariz. Att’y Gen. Op. I97-012, citing Sacramento Newspaper Guild v. Sacramento Bd.
of Supervisors, 69 Cal. Rptr. 480, 485 (App. 1968) (reversed on other grounds).
“Deliberations” and “discussions” involve an exchange between members of the public
body, which denotes more than unilateral activity. See Ariz. Att’y Gen. Op. I75-8;
Webster’s at 390 (“exchange” means “to take or give up for another"; "to give up one
thing for another"; "to provide in return for something of equal value.") Finally, “taking
legal action” in the context of the OML requires a "collective decision, commitment or
promise” by a majority of the members of a public body. A.R.S. § 38-431(3); Ariz. Att’y
Gen. Op. I75-7.
Unlike discussions and deliberations, the word “propose” does not imply or
require collective action. Webster’s defines “propose” as “to put forward for
consideration, discussion, or adoption.” Webster’s II New College Dictionary at 944. A
single board member may “propose” legal action by recommending a course of action for
the board to consider. For example, the statement, “Councilperson Smith was admitted to
the hospital last night” is not a proposal, but “We should install a crosswalk at First and
Main” is a proposal. Thus, an e-mail from a board member to enough other members to
constitute a quorum that proposes legal action would be a meeting within the OML, even

when e-mail is used as the functional equivalent of letter communication by ordinary mail, courier, or
facsimile transmission.” Id., 267 Va. at 490, 593 S.E. 2d at 199.

5

if there is only a one-way communication, and no other board members reply to the email.5
3. An Exchange of Facts, as Well as Opinions, Among a Quorum of Members of a
Public Body Constitutes a Meeting within the OML, if it is Reasonably
Foreseeable that the Topic May Come Before the Public Body for Action in the
Future.
Arizona’s OML does not distinguish between communication of facts or opinions.
An exchange of facts, as well as opinion, may constitute deliberations under the OML.
See Ariz. Att'y Gen. Ops. I97-012, I79-4; I75-8.6 The term “deliberations” as used in
A.R.S. § 38-431 means "any exchange of facts that relate to a matter which foreseeably
might require some final action . . .." Ariz. Att’y Gen. Op. I75-78; see also Sacramento
Newspaper Guild, 69 Cal. Rptr. at 485 (deliberation connotes not only collective
discussion, but also the collective acquisition and exchange of facts preliminary to the
final decision).
Of course, the OML applies only to an exchange of facts or opinions if it is
foreseeable that the topic may come before the public body for action. See Valencia v.
Cata, 126 Ariz. 555, 556-57, 617 P.2d 63, 64-5 (App. 1980); Ariz. Att'y Gen. Op. 75-8.
The scope of what may foreseeably come before the public body for action is determined

5

It might be argued that because the definition of meeting refers to a gathering of a quorum at which they
discuss, propose or take legal action, the definition only applies to proposals made by a quorum or
circumstances in which more than one person actually makes a proposal. That interpretation, however, is
inconsistent with the ordinary meaning of the word “propose” and with the process for proposing legal
action for consideration by public bodies. It is also contrary to the directive that the OML be construed
broadly to achieve its purposes.
6

Unlike Arizona, some states permit exchanges of information among a quorum of a public body outside
of public meetings. See Fla. AGO 2001-20, 2001 WL 276605 (Fla. A.G.) (“[C]ommunication of
information, when it does not result in the exchange of council members’ comments or responses on
subjects requiring council action, does not constitute a meeting subject to [Florida’s sunshine law]). As in
many other states, Florida’s open meeting law is known as its “sunshine law.”

6

by the statutes or ordinances that establish the powers and duties of the body. See Ariz.
Att'y Gen. Op. I00-009.
4. Applying OML Principles to E-mail.
Few reported decisions discuss when the use of e-mail violates a state’s open
meeting law. In Wood v. Battle Ground School District, 107 Wash. App. 550, 564, 27 P.
3d 1208, 1217 (2001), the Washington Court of Appeals held that the exchange of e-mail
messages may constitute a meeting within Washington’s Open Public Meetings Act.
While the court held that “the mere use or passive receipt of e-mail does not
automatically constitute a ‘meeting’,” it concluded that the plaintiff established a prima
facie case of “meeting” by e-mails because the members of the school board exchanged
e-mails about a matter, copying at least a quorum and sometimes all of the other
members. The court said, “[T]he active exchange of information and opinions in these emails, as opposed to the mere passive receipt of information, suggests a collective intent
to deliberate and/or to discuss Board business.” 107 Wash. App. at 566, 27 P. 3d at 1218.
Although the Washington Open Public Meetings Act is not identical to the OML,
like the OML, it broadly defines “meeting” and “action,” and includes the directive that
the law be liberally construed in favor of open and public meetings. 107 Wash. App. at
562, 27 P. 3d at 1216. The holding of the court in Wood and its attendant analysis are,
therefore, persuasive.
The available case law and Arizona’s statutory language indicate that a one-way
communication by one board member to other members that form a quorum, with no
further exchanges between members, is not a per se violation of the OML. Additional
facts and circumstances must be evaluated to determine if the communication is being

7

used to circumvent the OML. A communication that proposes legal action to a quorum
of the board would, however, violate the OML, even if there is no exchange among the
members concerning the proposal. In addition, passive receipt of information from a
member of the staff, with nothing more, does not violate the OML. See Roberts, 20 Cal.
Rptr. 2d at 337, 853 P. 2d at 503 (receipt of a legal opinion by members of a public body
does not result in a meeting.); Frazer v. Dixon Unified Sch. Dist., 18 Cal. App. 4th 781,
797, 22 Cal. Rptr. 2d 641, 657 (1993) (passive receipt by board members of information
from school district staff is not a violation of the open meeting law).7
There are risks whenever board members send e-mails to a quorum of other board
members. Even if the first e-mail does not violate the open meeting law, if enough board
members to constitute a quorum respond to the e-mail, there may be a violation of the
OML. In addition, a quorum of the members might independently e-mail other board
members on the same subject, without knowing that fellow board members are also doing
so. This exchange of e-mails might result in discussion or deliberations by a quorum that
could violate the OML. Because of these potential problems, I strongly recommend that
board members communicate with a quorum about board business at open public
meetings, not through e-mails.
B. Hypotheticals Illustrating the Use of E-mail.
The analysis of the OML and e-mail is theoretically no different than analyzing other
types of communications. To provide additional guidance, this Opinion will address

7

This office has also opined that, in the context of a Call to the Public, passive receipt of information does
not constitute a meeting. Ariz. Att’y Gen. Op. I99-006.

8

OML applications to specific factual scenarios.8
a. E-mail discussions between less than a quorum of the members that are
forwarded to a quorum by a board member or at the direction of a board member
would violate the OML.
b. If a staff member or a member of the public e-mails a quorum of members of the
public body, and there are no further e-mails among board members, there is no
OML violation.
c. Board member A on a five-member board may not e-mail board members B and
C on a particular subject within the scope of the board’s responsibilities and
include what other board members D and E have previously communicated to
board member A. This e-mail would be part of a chain of improper serial
communications between a quorum on a subject for potential legal action.
d. A board member may e-mail staff and a quorum of the board proposing that a
matter be placed on a future agenda. Proposing that the board have the
opportunity to consider a subject at a future public meeting, without more, does
not propose legal action, and, therefore, would not violate the OML.
e. An e-mail from the superintendent of the school district to a quorum of the board
members would not violate the OML. However, if board members reply to the
superintendent, they must not send copies to enough other members to constitute
a quorum. Similarly, the superintendent must not forward replies to the other
board members.
f. One board member on a three-member board may e-mail a unilateral
communication to another board member concerning facts or opinions relating to
board business, but board members may not respond to the e-mail because an
exchange between two members would be a discussion by a quorum.
g. A board member may copy other board members on an e-mailed response to a
constituent inquiry without violating the OML because this unilateral
communication would not constitute discussions, deliberations or taking legal
action by a quorum of the board members.
h. An e-mail request by a board member to staff for specific information does not
violate the OML, even if the other board members are copied on the e-mail. The
superintendent may reply to all without violating the OML as long as that
response does not communicate opinions of other board members. However, if
board members reply in a communication that includes a quorum, that would
constitute a discussion or deliberation and therefore violate the OML.
8

These hypotheticals assume that the e-mails are not sent by board members or at a board member’s
direction with the purpose of circumventing the OML and that any unilateral communications do not
propose legal action.

9

i. A board member may use e-mail to send an article, report or other factual
information to the other board members or to the superintendent or staff member
with a request to include this type of document in the board's agenda packet. The
agenda packet may be distributed to board members via e-mail. Board members
may not discuss the factual information with a quorum of the board through email.
C. Measures to Help Ensure that the Public Body Conducts Its Business in
Public.
Although it is not legally required, I recommend that any e-mail include a notice
advising board members of potential OML consequences of responding to the e-mail.
Possible language for a notice for e-mails from the superintendent or staff is as follows:
To ensure compliance with the Open Meeting Law, recipients of
this message should not forward it to other members of the public
body. Members of the public body may reply to this message, but
they should not send a copy of the reply to other members.
Language for e-mails from board members could be the following:
To ensure compliance with the Open Meeting Law, recipients of
this message should not forward it to other board members and
board members should not reply to this message.
Although the OML does not require the above notice, such notification may serve as a
helpful reminder to board members that they should not discuss or deliberate through email.
It is also important to remember that e-mail among board members implicates the
public records law, as well as the OML. E-mails that board members or staff generate
pertaining to the business of the public body are public records. See Star Publ’g Co. v.
Pima County Attorney’s Office, 181 Ariz. 432, 891 P.2d 899 (App. 1994); see also
Arizona Agency Handbook § 6.2.1.1 (Ariz. Att’y Gen. 2001). Therefore, the e-mails must
be preserved according to a records retention program and generally be made available

10

for public inspection. A.R.S. §§ 39-121, 41-1436. Although the OML focuses on e-mails
involving a quorum of the members of the public body, the public records law applies to
any e-mail communication between board members or board members and staff. Public
bodies might consider maintaining a file that is available for public inspection and
contains any e-mails sent to and from board members. Ready access to this type of
information helps ensure compliance with the legislative mandates favoring open
government.
I encourage all public bodies to educate board members and staff concerning the
parameters of the OML and the public records law to ensure compliance with these laws.
E-mail is a useful technological tool, but it must be used in a manner that follows the
OML’s mandate that all public bodies propose legal action, discuss, deliberate, and make
decisions in public.

11

Conclusion
E-mail communications among a quorum of the board are subject to the same
restrictions that apply to all other forms of communications among a quorum of the
board. E-mails exchanged among a quorum of a board that involve discussions,
deliberations or taking legal action on matters that may reasonably be expected to come
before the board constitute a meeting through technological means. While some unilateral
e-mail communications from a board member to a quorum would not violate the OML, a
board member may not propose legal action in an e-mail. Finally, a quorum of the board
cannot use e-mail as a device to circumvent the requirements in the OML.

Terry Goddard
Attorney General
450529

12

STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL

No. I05-005
(R05-011)

ATTORNEY GENERAL OPINION
by

Re: Augmenting AIMS Scores Based on
Grades in Certain Courses

TERRY GODDARD
ATTORNEY GENERAL
October 24, 2005

To:

The Honorable Tom Horne
Superintendent of Public Schools
Question Presented
You have asked whether Arizona Revised Statutes (“A.R.S.”) § 15-701.02, which allows

students to augment their scores on the Arizona Instrument to Measure Standards (“AIMS”) to
meet graduation requirements, applies only to grades received in courses that satisfy the eleven
and one-half credit requirement for areas of study specified by the State Board of Education
(“State Board”), or also includes grades received in other elective subjects that count toward the
twenty-one credits required for graduation.
Summary Answer
Students may add points to their AIMS scores to fulfill graduation requirements based on
grades received in the courses that satisfy the eleven and one-half credits the State Board
specifies in Arizona Administrative Code (“A.A.C.”) R7-2-302(1)(a-f).

Background
The Legislature has assigned the State Board several responsibilities regarding high
school graduation requirements. The State Board is responsible for prescribing a “minimum
course of study”1 and competency requirements for high school graduation.

A.R.S. § 15-

203(A)(13). In addition, the State Board must adopt academic standards and integrate them into
the course of study required for graduation from high school. A.R.S. § 15-701.01(A)(1). These
academic standards, “in at least the areas of reading, writing, mathematics, science and social
studies,” must be incorporated in the competency requirements for graduation. A.R.S. § 15701.01(A)(2). Finally, pursuant to A.R.S. § 15-701.01(A)(3), the State Board must “[d]evelop
and adopt competency tests pursuant to section 15-741 for the graduation of pupils from high
school in at least the areas of reading, writing and mathematics and shall establish passing scores
for each such test.”
In 1990, the Legislature mandated that the State Board “[a]dopt and implement essential
skills tests that measure pupil achievement of the state board adopted essential skills in reading,
writing and mathematics in grades three, eight and twelve.” 1990 Ariz. Sess. Laws, ch. 233, Sec.
8 (S.B. 1442) (codified at A.R.S. § 15-741(A)(2)). This statute was amended in 1996 and now
requires the State Board to: “Adopt and implement an Arizona instrument to measure standards
test to measure pupil achievement of the state board adopted academic standards in reading,
writing and mathematics in at least four grades designated by the board.”

A.R.S. § 15-

741(A)(2); see also 1996 Ariz. Sess. Laws ch. 284, § 32. This examination is known as
“AIMS.”

1

A “course of study” is defined in A.R.S. § 15-101(9) as a “list of required and optional subjects to be taught in the
schools.”

2

In 2005, the Legislature also amended A.R.S. § 15-701.01 to enable a student who did
not pass AIMS to graduate from high school with a diploma, provided that the student met
“alternative graduation requirements established by Section 15-701.02.” 2005 Ariz. Sess. Laws
ch. 304, § 1 (S.B. 1038).
Section 15-701.02 presents the State Board with the framework for augmenting the
AIMS scores of high school students who fail to attain a passing score and would be otherwise
ineligible to receive a diploma. Once a student meets certain criteria,2 the student may obtain
additional credit to be added “in an amount not to exceed one quarter of the pupil’s achieved
score in each area. . . . . [A] pupil may use the highest achieved score in each area of any time the
[AIMS] test was taken.” A.R.S. § 15-701.02(C).
The State Board is required to “establish the manner that additional credit may be used to
augment the score of the pupil.” A.R.S. § 15-701.02(D). A student’s AIMS score may be
increased by adding points to the score on each of the mathematics, reading, or writing section of
the test as follows:
Additional credits applied to the pupil’s score pursuant to subsections C
and D of this section shall be based only on the performance of the pupil in those
courses that meet the requirements for graduation established by the state board of
education pursuant to Section 15-203, Subsection A, Paragraph 13. Each course
that receives additional credit pursuant to this section shall receive equivalent
additional credit regardless of subject area, except that greater additional credit
shall be granted for courses with more advanced academic content related to the

2

Specifically, a student is
eligible for the alternative graduation achievement requirements . . . if all of the following apply:
1.
The pupil has taken the competency test each time the test was offered when the pupil was
eligible to take the test.
2.
The pupil has completed with a passing grade all coursework and credits prescribed for the
graduation of pupils from high school by the governing board of the pupil’s school district
pursuant to § 15-701.01.
3.
The pupil has participated in any academic remediation programs available in the pupil’s
school in those subject areas where the pupil failed to achieve a passing score on the competency
test.

A.R.S. § 15-701.02(B).

3

academic standards prescribed by the state board of education pursuant to
Section15-701.01.
A.R.S. § 15-701.02(E).
As A.R.S. § 15-203(A)(13) mandates, the State Board adopted A.A.C. R7-2-302(1),
setting forth the subject area requirements for a minimum course of study for high school
graduation. Students are required to obtain a minimum of twenty credits in order to graduate.
The State Board specifically identifies eleven and one-half credits that the pupil must take to
receive a high school diploma.3 A.A.C. R7-2-302(1)(a-f). The State Board also allows a
district’s local governing board to prescribe additional courses that the student may take to meet
the twenty credit minimum. A.A.C. R7-2-302(1)(g).
In A.A.C. R7-2-302, the State Board sets forth the minimum competency requirements
for graduation from a public high school, as A.R.S. § 15-701.01(A) requires. Effective with the
graduation class of 2006, a student must receive “a passing score on the reading, mathematics,
and writing portions of the AIMS (Arizona’s Instrument to Measure Standards) assessment” in
order to graduate from high school or receive a high school diploma. A.A.C. R7-2-302.
Analysis
The question here is whether A.R.S. § 15-701.02(E) permits students to augment their
AIMS scores with additional points based on their performance in courses that are included in
the eleven and one-half credit hours that the State Board requires, or if students may augment
AIMS scores using grades received in any courses that satisfy the twenty credit requirement for
graduation.
A statute’s language is the best indicator of its meaning. State v. Williams, 175 Ariz. 98,
100, 854 P.2d 131, 133 (1993). The key phrase in A.R.S. § 15-701.02(E) states: “Additional
3

The required subjects are: four credits of English or English as a Second Language; one and one-half credits in
instruction on the constitutions of the United States and Arizona, including instruction in the history of Arizona; one
credit of world history/geography; two credits of mathematics; two credits of science; and one credit of fine arts or
vocational education. A.A.C. R7-2-302(1)(a-f).

4

credits . . . shall be based only on the performance of the pupil in those courses that meet the
requirements for graduation established by the state board of education pursuant to section 15203, subsection A, paragraph 13.” The legislative history of this statutory language is sparse and
provides no assistance in determining whether the students may augment AIMS scores by adding
points to grades received in eleven and one-half credits of classes specified by the State Board or
twenty credits of classes, which includes those approved by the school district governing board.4
The language of A.R.S. § 15-701.02(E) must be read in relation to other provisions of
the statute. See City of Phoenix v. Superior Court, 144 Ariz. 172, 176, 696 P.2d 724, 728 (App.
1985). One of the eligibility requirements for augmenting AIMS scores identified in A.R.S. §
15-701.02(B) is that the student “has completed with a passing grade all coursework and credits
prescribed for the graduation of pupils from high school by the governing board of the pupil’s
school district pursuant to Section 15-701.01.” This provision clearly applies to the 20 credits
required for graduation. In contrast, the language of A.R.S. § 15-701.02(E) refers specifically to
“those courses that meet the requirements for graduation established by the state board of
education pursuant to section 15-203, subsection A, paragraph 13.” The language of these two
subsections of A.R.S. § 15-701.02 indicates that the Legislature recognized the difference
between the credits prescribed by a school district governing board and those required by the
State Board.
This distinction suggests that the graduation requirements “established by the state board
of education” referred to in A.R.S. § 15-701.02(E) are the eleven and one-half credits that the
State Board requires all students to take in order to graduate.

A.R.S. § 15-701.02(E). Those

courses include English, social studies, math, science and fine arts or vocational education.
4

The House Summary to S.B. 1038, as transmitted to the Governor, simply mirrored the legislation by stating that
“additional credits must be based only on the performance of the pupil in those courses that meet the requirements
for graduation established by the [State Board].” Ariz. H.R., House Summary for S.B. 1038, 47th Leg., 1st Reg. Sess.
at 2 (2005). The Fact Sheet for S.B.1038 contains much the same language. Ariz. S., Final Amended Fact Sheet
for S.B. 1038, 47th Leg., 1st Reg. Sess. at 3 (2005).

5

A.A.C. R7-2-301(1)(a-f). This statutory language would not include the additional coursework
prescribed by a governing board that, together with the courses required by the State Board,
equal 20 credits. Any other reading of the statute ignores the statutory distinction between those
credits prescribed by the local governing board and those prescribed by the State Board.
Conclusion
Students may augment their scores on AIMS to meet graduation requirements by adding
points based on grades received in courses that satisfy the eleven and one-half credit requirement
in State Board Rule A.A.C. R7-2-302(1)(a-f).

Terry Goddard
Attorney General
455725

6

STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL

No. I05-006
(R05-020)

ATTORNEY GENERAL OPINION
by

Re: Campaign Finance Reports Filed By
Candidates Pursuant to A.R.S. §§ 16941(B)(2) and -958

TERRY GODDARD
ATTORNEY GENERAL
November 14, 2005

To:

The Honorable Janice K. Brewer
Arizona Secretary of State
Questions Presented
1.

Under Arizona Revised Statutes (“A.R.S.”) §§ 16-941(B)(2) and -958, must a

nonparticipating candidate file a complete campaign finance report in accordance with A.R.S. §§
16-913 and -915 or is the candidate only required to file a report that indicates that the triggering
thresholds listed in A.R.S. § 16-941(B)(2)(A) and (B) have occurred?
2.

If the report filed under A.R.S. §§ 16-941(B)(2) and -958 is not required to

contain the content otherwise required in a campaign finance report under A.R.S. §§ 16-913 and
-915, what content must this report contain?
Summary Answer
Under the Citizens Clean Elections Act (the “Act”), nonparticipating candidates must file
campaign finance reports with the Secretary of State when their campaigns reach certain

statutory thresholds in collections or spending. The Act requires the Citizens Clean Elections
Commission (the “Commission”) to prescribe the form for these and other reports that the Act
requires. A.R.S. § 16-956(A)(3). The Commission has adopted rule R2-20-109, which requires
that reports filed pursuant to A.R.S. §§ 16-941 and -958 contain the same information regarding
receipts and disbursements as A.R.S. § 16-915 requires.
Background
Arizonans passed the Citizens Clean Elections Act, A.R.S. §§ 16-940 through -961, as a
voter initiative in the general election of 1998. The Act’s purposes are recited in its text: “To
create a clean elections system that will improve the integrity of Arizona State Government by
diminishing the influence of special-interest money, will encourage citizen participation in the
political process, and will promote freedom of speech under the U.S. and Arizona Constitutions.”
A.R.S. § 16-940(A).
The Act achieves these goals by creating an optional system of public funding for
candidates in legislative and statewide campaigns. Candidates that choose the public funding
option (“participating candidates”) accept strict spending limits. A.R.S. §§ 16-941; -945. These
limits vary by office and depend upon whether the candidate is competing in a primary or a
1

general election. See A.R.S. §§ 16-941,:961(G), (H). Participating candidates must forego all
private contributions, other than $5 “qualifying” contributions and a small amount of “seed”
money at the campaign’s outset. A.R.S. §§ 16-941(A)(1); -947(B)(3).
Candidates who wish to run privately financed campaigns (“nonparticipating
candidates”) may continue to do so. They face no limits on the total amount of money that they
1

For instance, the primary election spending limit for the 2004 election was $11,320 for candidates for the
Legislature and $430,149 for candidates for governor. The general election spending limit was $16,980 for
candidates for the Legislature and $645,224 for candidates for governor. These limits are collectively referred to
herein as the “initial spending limits.”

2

can raise or spend. The Act reduced the limits on individual contributions to nonparticipating
candidates, by twenty percent, A.R.S. § 16-941(B)(1), and authorized the Secretary of State to
adjust these limits biennially for inflation, A.R.S. § 16-905(J).
A participating candidate may receive limited matching funds from the Commission.
Matching funds are paid when a nonparticipating opponent receives contributions or makes
expenditures that exceed the participating candidate’s initial spending limit. A.R.S. § 16-952(A),
(B). Matching funds also are paid when independent expenditures are made against a
participating candidate or in favor of a nonparticipating opponent. A.R.S. § 16-952(C).
Matching funds are capped, however, when the participating candidate receives total monies
equal to three times the initial spending limit. A.R.S. § 16-952(E).
Campaign finance reports facilitate the accurate and timely disbursement of matching
funds. Arizona law requires all candidates to file six campaign finance reports during an election
year under provisions that predate the Act. A.R.S. § 16-913. The required contents of the six
reports filed pursuant to A.R.S. § 16-913 are set forth under A.R.S. § 16-915. Under that statute,
campaign finance reports must provide an itemized list of a candidate’s receipts and
disbursements, among other information. See id.
Nonparticipating candidates may also be required to file additional “trigger” reports
under the Act. Pursuant to A.R.S. § 16-941(B)(2), a candidate must file an original trigger report
if the campaign’s preprimary expenditures have exceeded seventy percent of the original primary
election spending limit imposed on a participating opponent or if the contributions to a
nonparticipating candidate, less certain expenditures, have exceeded seventy percent of the
participating candidate’s original general election spending limit.

3

The number and timing of any supplemental trigger reports that the Act requires also
depend upon the nonparticipating candidate’s collections or spending.2 See A.R.S. § 16-958.
Candidates are required to file their campaign finance reports electronically using software that
the Secretary of State provides to political committees. See A.R.S. § 16-958(E). The Secretary
of State must inform the Commission “immediately” when trigger reports are filed. A.R.S. § 16958(D).
Analysis
Your question is whether the trigger reports that are filed pursuant to A.R.S. §§ 16-941
and -958 must contain the same information as the campaign finance reports that are filed
pursuant to A.R.S. §§ 16-913 and -915. Section 16-941(B)(2) states that the nonparticipating
candidate must comply with A.R.S. § 16-958’s reporting requirements, including the
requirement of filing reports with the Secretary of State indicating when the candidate’s
spending or collections has reached the threshold levels that the Act establishes for filing an
original trigger report.
Section 16-958 obligates the nonparticipating candidate who engages in a specified
amount of additional collections or spending to file supplemental trigger reports with the
Secretary of State. That provision states that the supplemental reports that the nonparticipating
candidate files shall identify “the dollar amount being reported, the candidate, and the date.”
A.R.S. § 16-958(A).
The Act leaves the determination of the form of the trigger reports to the Commission.
See A.R.S. §§ 16-956 -957. The Act grants the Commission broad rulemaking authority “to

2

A nonparticipating candidate must file a supplemental trigger report each time new collections or spending exceed
(i) ten percent of the original primary election spending limit or twenty-five thousand dollars, whichever is lower,
before the general election period, or (ii) ten percent of the original general election spending limit or twenty-five
thousand dollars, whichever is lower, during the general election period. A.R.S. § 16-958(A).

4

carry out the purposes” of the Clean Elections program. A.R.S. § 16-956(C). The Act further
provides that the Commission “shall . . . [p]rescribe forms for reports, statements, notices and
other documents required by [the Act].” A.R.S. § 16-956(A)(3).3
The Commission’s Rules expressly provide that “[o]riginal and supplemental campaign
finance reports filed pursuant to A.R.S. §§ 16-941 shall include the same information regarding
receipts and disbursements as required by A.R.S. § 16-915.” A.A.C. R2-20-109(A)(2).
Accordingly, under Commission rules, a nonparticipating candidate must file trigger reports
whose contents reflect the requirements found in A.R.S. § 16-915.
Conclusion
Under the rules of the Citizens Clean Elections Commission, the original and
supplemental campaign finance reports filed pursuant to A.R.S. §§ 16-941 and -958 must include
the same information regarding receipts and disbursements as required under A.R.S. § 16-915.

Terry Goddard
Attorney General

456740

3

The Act also instructs the Commission to adopt rules to implement the reporting requirements of A.R.S. § 16958(D) and (E). See A.R.S. § 16-956(A)(6). Those provisions require the Secretary of State to immediately notify
the Commission of any trigger reports filed under A.R.S. § 16-958 and to distribute computer software to political
committees to accommodate such filing. See A.R.S. § 16-958(D), (E).

5

STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL

ATTORNEY GENERAL OPINION

No. I05-007
(R05-006)

by
Re: Reporting Responsibilities of
Teachers and School Volunteers under
A.R.S. § 13-3620

TERRY GODDARD
ATTORNEY GENERAL
December 20, 2005

To:

The Honorable Ted Downing
Arizona House of Representatives
Questions Presented

Section 13-3620, Arizona Revised Statutes (“A.R.S.”), imposes a duty on specified
categories of individuals to report suspected child abuse. School personnel are among those
required to report to a peace officer or to child protective services if there is reason to believe
that a child is the victim of abuse, neglect, physical injuries, or specified sexual offenses. You
have asked the following questions relating to school teachers’ and school volunteers’ duties
under this statute.
1.

Does a teacher satisfy the duty to report under Arizona Revised Statutes

(“A.R.S.”) § 13-3620(A) if the teacher reports or causes a report to be made to the teacher’s

supervisor without independently ensuring that the suspected abuse is reported to a peace officer
or child protective services?
2.

Are school volunteers included in the class of persons required to report under

A.R.S. § 13-3620(A)?
3.

If a school volunteer is subject to the duty to report under A.R.S. § 13-3620(A),

does it make a difference if the person is volunteering to work directly with students to assist
them with their lessons or to accompany students on field trips as opposed to volunteering to
perform administrative tasks, such as clerical tasks or copying?
4.

If a volunteer is subject to the duty to report under A.R.S. § 13-3620(A), does the

volunteer satisfy the duty to report under A.R.S. § 13-3620(A) if the volunteer reports or causes
a report to be made to the responsible teacher or the responsible teacher’s supervisor or must the
volunteer also report or cause a report to be made independently to a peace officer or child
protective services?
Summary Answer
1.

Teachers must immediately and independently ensure that the information

regarding suspected abuse is reported to a peace officer or child protective services. Section 133620(A), A.R.S., (the Reporting Statute) requires all school personnel who reasonably believe
that a minor is or has been a victim of child abuse or neglect to “immediately report or cause
reports to be made of [the] information to a peace officer or to child protective services.”
Although informing a principal or other supervisor is advisable, this does not necessarily satisfy
the teacher’s duty to ensure that the information regarding the suspected abuse is conveyed to a
peace officer or child protective services.

2

2.

A school volunteer is required to report suspected abuse under the Reporting

Statute if the volunteer is responsible for the care or treatment of a child.
3.

Whether a particular volunteer has a duty to report child abuse depends on the

facts and circumstances. School volunteers who perform administrative tasks or assist teachers
are generally not responsible for the care or treatment of children; however, there may be
volunteers who, for example, accompany children on field trips or perform other functions in
which, based on the facts and circumstances, they are responsible for the care of children.
4.

A volunteer who has a duty to report does not necessarily satisfy this

responsibility by reporting the matter to a teacher or other school employee. The volunteer must
ensure the information is conveyed to a peace officer or child protective services.
Background
Mandatory child abuse reporting statutes began appearing in the United States in the
1950s. In 1974, Congress passed the Child Abuse Prevention and Treatment Act, 42 U.S.C. §§
5101 to 5107, requiring states to pass specific legislation targeted at child abuse. States were not
eligible for federal funds to combat child abuse if they did not have a reporting statute in place.
Currently, all fifty states have child abuse reporting legislation modeled after federal guidelines.
The state statutes typically require mandatory child abuse reporting, grant immunity to people
who report suspected child abuse in good faith, and provide either civil or criminal penalties for
failure to file a mandatory report with the specified agency. See, e.g., Wyo. Stat. § 14-3-205;
Ky. Rev. Stat. Ann. § 620.030.

3

Arizona passed its first reporting statute in 1964.1

The current Reporting Statute

mandates that people subject to the statute who “reasonably believe[]” that abuse has occurred
report the suspected abuse to a peace officer or to child protective services:
Any person who reasonably believes that a minor is or has been the
victim of physical injury, abuse, child abuse, a reportable offense
or neglect that appears to have been inflicted on the minor by other
than accidental means or that is not explained by the available
medical history as being accidental in nature or who reasonably
believes there has been a denial or deprivation of necessary
medical treatment or surgical care or nourishment with the intent to
cause or allow the death of an infant who is protected under §362281 shall immediately report or cause reports to be made of this
information to a peace officer or to child protective services in the
department of economic security . . . .
A.R.S. § 13-3620(A) (Emphasis added.)
The people required to report include:
1.
Any physician, physician’s assistant, optometrist, dentist,
osteopath, chiropractor, podiatrist, behavior health professional,
nurse, psychologist, counselor or social worker who develops the
reasonable belief in the course of treating a patient.
2.
Any peace officer, member of the clergy, priest or
Christian Science practitioner.
3.

The parent, stepparent or guardian of the minor.

4.
School personnel or domestic violence victim advocate
who develop the reasonable belief in the course of their
employment.
5.
Any other person who has responsibility for the care or
treatment of the minor.
A.R.S. § 13-3620(A)(1)-(5).

1

The original Reporting Statute was codified as A.R.S. § 13-843.01. It is currently found at A.R.S. § 13-

3620.

4

If the report concerns a person who does not have care, custody or control of the child,
the report is made to a peace officer only, not to child protective services. A.R.S. § 13-3620(A).
The reports are to be “made immediately by telephone or in person and . . . be followed by a
written report within 72 hours.” A.R.S. § 13-3620(D).

A violation of the Reporting Statute is a

class 1 misdemeanor or a class 6 felony, depending on the nature of the offense. A.R.S. § 133620(O).
Analysis
A.

Under A.R.S. § 13-3620(A), Teachers Are Required to Report
Suspected Abuse to a Peace Officer or Child Protective
Services.

The best indication of the intent of a statute is its language. State v. Givens, 206 Ariz.
186, 188, 76 P.3d 457, 459 (2003). The Reporting Statute’s language explicitly mandates that a
person subject to the statute who “reasonably believes” that abuse has occurred “immediately
report or cause reports to be made of this information to a peace officer or to child protective
services in the department of economic security.” A.R.S. § 13-3620(A) (emphasis added).
Based on this statutory language, a person satisfies his or her obligation by directly
reporting the suspected abuse, or ensuring that a report is made to a peace officer or child
protective services. Although reporting the suspected abuse to a principal or other supervisor
may be advisable, this does not necessarily satisfy the statute. To comply with the statute,
school personnel must ensure that the information is conveyed to the proper authorities (a peace
officer or child protective services).
School personnel can ensure that the information is conveyed to the proper state
investigating authority by either directly reporting the suspected abuse, or confirming that a
report made to a supervisor, or principal or other person is immediately conveyed to a peace

5

officer or child protective services. Moreover, a school employee who receives a report of child
abuse is also statutorily responsible for reporting the information to a peace officer or child
protective services. This may result in multiple reports concerning the same incident, but that is
neither prohibited nor discouraged by the statutory language. See Commonwealth v. Allen, 980
S.W.2d 278, 280 (Ky. 1998) (“it is not illogical or inefficient for the legislature to require every
individual entrusted with the care and supervision of children to be required to report crimes
against those children.”)2
B.

School Volunteers Are Required to Report Suspected Abuse
Under A.R.S. § 13-3620(A) if They Are Responsible for the
Care or Treatment of Children.

The Reporting Statute does not specifically require school volunteers to report suspected
abuse. The issue, therefore, is whether volunteers fall within the other categories of people
required to report.
Arizona’s Reporting Statute requires “school personnel . . . who develop the reasonable
belief in the course of their employment” that a child has been abused to report the suspected
abuse. A.R.S. § 13-3620(4). This provision does not extend to volunteers. Although Title 15,
A.R.S., uses the phrase “school personnel” to describe various groups of education personnel,
see A.R.S. §§ 15-511, -730, -788, -1331, the term is never defined. Generally, these statutes do
not contemplate volunteers as school employees or personnel.

Cf. A.R.S § 15-502

(“Employment of school district personnel; payment of wages of discharged employee”).

2

In Allen, a teacher and school counselor were charged with misdemeanor offenses for failing to report
suspected child abuse to the proper state authorities. Students had reported separately to the teacher and the school’s
counselor that another teacher in the school had engaged in sexual activities with students. Id. at 279. Following
the school district’s reporting procedures, both the teacher and the counselor repeated the allegations to the school’s
principal, but failed to report the allegations to local law enforcement. The Kentucky Supreme Court rejected the
arguments of the teacher and counselor that they had satisfied the reporting requirement by telling their supervisor of
the suspected abuse. Id. at 279-80.

6

At least one Arizona statute, however, considers volunteers, in a specific circumstance, to
be “personnel” for educational purposes. Section 15-512, A.R.S., requires certain “personnel
who are not paid employees of the school district” to be fingerprinted.

Although some

volunteers are considered “personnel” for purposes of the fingerprinting requirement, there is no
indication that the Legislature intended to include volunteers as school personnel for purposes of
the Reporting Statute.
The Reporting Statute applies to “school personnel” who obtain information “in the
course of their employment.” A.R.S. § 13-3620(A)(4). The terms “school personnel” and “in
the course of their employment” indicate that this subsection of the Reporting Statute does not
apply to volunteers.
The Reporting Statute also requires individuals “who [have] responsibility for the care or
treatment of the minor” to report suspected abuse.

A.R.S. § 13-3620(A)(5). The statute,

however, does not define this phrase. In the context of A.R.S. § 13-3623,3 the child abuse statute,
courts have noted that whether a person has assumed responsibility for a child’s care is a
question of fact. State v. Smith, 188 Ariz. 263, 265, 935 P.2d 841, 843 (App. 1996). The word
“care” in A.R.S. § 13-3623 “require[s] that the defendant accept responsibility for the child in
some manner.” State v. Jones, 188 Ariz. 388, 394, 937 P.2d 310, 316 (1997). It also requires
more than the general duty of care that is required to impose tort liability. Id. at 393, 937 P.2d at
315.
For example, in the context of A.R.S. § 13-3623, evidence that the defendant allowed
two children to ride in his car was not sufficient to establish that he had assumed responsibility
for the “care” of those children while they were in his car. State v. Swanson, 184 Ariz. 194, 196,

3

Section 13-3623 refers to a person who “having . . . care or custody of a child or vulnerable adult”
engages in certain conduct.

7

908 P.2d 8, 10 (App. 1995). In contrast, where a child has been living in a defendant’s residence
for three months, and the defendant acted as the child’s caregiver, the defendant had “care or
custody” of the child for the purposes of A.R.S. § 13-3623. State v. Jones, 188 Ariz. at 394, 937
P.2d at 316.
School personnel, not volunteers, are generally responsible for the children’s care at
school. Nevertheless, whether a particular school volunteer has “responsibility for the care or
treatment” of a minor is a fact-specific question and requires an analysis of the role of the
particular volunteer. Therefore, some volunteers may be subject to the reporting obligation
while others would not, depending on their roles at the school.
Your opinion request specifically mentioned volunteers who perform administrative tasks
as opposed to helping students with their lessons or accompanying students on field trips. The
volunteer who helps with administrative or clerical work is not subject to the Reporting Statute
because that person is not responsible for the care or treatment of children. Similarly, although it
is a closer question, the volunteer who helps in a classroom under a teacher’s supervision is
generally not responsible for the care or treatment of the children. In that situation, the teacher,
rather than a volunteer who may assist the teacher, is responsible for the children’s care. In
contrast, on field trips volunteers may well be responsible for the care of children.

In

supervising children on a field trip, the volunteer may necessarily “accept responsibility for the
child in some manner.” Id. The role of the volunteer will determine whether he or she is subject
to the reporting requirement.
Even if a particular school volunteer is not statutorily required to report, any person who
reasonably believes that a child has been abused may, of course, report the suspected abuse.
A.R.S. § 13-3620(F); see also A.R.S. § 13-3620(J) (immunity for reporting suspected abuse).

8

If a volunteer is subject to the Reporting Statute, the volunteer must “immediately report
or cause reports to be made” to a peace officer or child protective services. For the same reasons
that a teacher’s reporting responsibility is not necessarily satisfied by reporting the suspected
abuse to the principal, a volunteer’s reporting responsibility is not necessarily satisfied by
reporting the information to a teacher or other school employee. The volunteer must ensure that
the report is made to the appropriate authorities.

Conclusion
To satisfy the Reporting Statute, teachers must immediately report suspected abuse to a
peace officer or child protective services. Although informing a principal or other supervisor
may be advisable, it does not necessarily satisfy the teacher’s duty to ensure that information
regarding suspected abuse is reported to a peace officer or child protective services. School
volunteers who are “responsible for the care or treatment” of children are also required to report
suspected abuse.

Terry Goddard
Attorney General

459834

9

STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL

ATTORNEY GENERAL OPINION

No. I05-008
(R05-013)

by
Re: Affiliated practice relationships between
dental hygienists and dentists

TERRY GODDARD
ATTORNEY GENERAL
December 28, 2005

To:

Julie Chapko, Executive Director
Arizona State Board of Dental Examiners
You requested an Attorney General Opinion regarding affiliated practice relationships

between dental hygienists and dentists, both of whom are licensed and regulated by the Arizona
State Board of Dental Examiners (“Board”).

Questions Presented

1.

Do the supervision requirements in Arizona Revised Statutes § 32-1281 apply to

affiliated practice relationships authorized by A.R.S. § 32-1289?
2.

Do the supervision limitations in Arizona Administrative Code R4-11-603 apply

to affiliated practice relationships?
3.

Does A.R.S. § 32-1289(G) authorize the Board to adopt a rule limiting the

number of affiliated practice relationships in which dentists and/or dental hygienists may
participate?

Summary Answers
1.

The general and direct supervision requirements in Arizona Revised Statutes

(“A.R.S.”) §32-1281 do not apply to affiliated practice relationships. Instead, A.R.S. § 321289(H) requires a dentist in an affiliated practice relationship to “be available to provide an
appropriate level of contact, communication, and consultation with the affiliated dental
hygienist.”
2. The supervision limitation in Arizona Administrative Code (“A.A.C.”) R4-11-603
does not apply to affiliated practice relationships which are governed by A.R.S. § 32-1289.
3. Section 32-1289(G)(2) authorizes the Board to adopt a rule limiting the number of
affiliated practice relationships in which dentists and hygienists may participate.
Background
A.

Regulation of Dental Hygienists

Dental hygienists are licensed oral health care providers who provide preventive and
therapeutic oral health care. Dental hygienists are licensed and regulated by the Arizona State
Board of Dental Examiners (“Board”). The qualifications and requirements for licensure and
practice governing dental hygienists, including supervision requirements, are set forth in statute
(A.R.S. § 32-1281 to -1292.01) and regulation (A.A.C. R4-11-601 to -608). Prior to 2004, dental
hygienists could practice only under the general or direct supervision of a licensed dentist. See
A.R.S. § 32-1281(E) (2003).1 The level of supervision required depended upon the nature of the
dental procedure performed. A.R.S. § 32-1281(B), (E), and (F) (2003). Pursuant to regulation, a
dentist is limited to supervising no more than three hygienists at one time. A.A.C. R4-11-603.
1

“Direct supervision” is defined as “the dentist is present in the office while the dental hygienist is treating a patient
and is available for consultation regarding procedures that the dentist authorizes and for which he is responsible.”
A.R.S. § 32-1281(I)(1). “General supervision” is defined as “the dentist is available for consultation, whether or not

2

B.

Affiliated Practice Relationships

In 2004, the Legislature authorized dental hygienists to enter into affiliated practice
relationships with dentists. 2004 Ariz. Sess. Laws, Ch. 6, §§ 1, 3. Pursuant to this legislation, a
qualified dental hygienist may “provide dental hygiene services under an affiliated practice
relationship with a dentist as prescribed in section A.R.S. § 32-1289.” A.R.S. § 32-1281 (H).
Section 32-1289, A.R.S., allows a public health agency or institution or a public or private school
authority to employ dental hygienists to perform dental hygiene procedures under either general
or direct supervision, or to enter into a contract for dental hygiene services with licensees who
have entered into an affiliated practice relationship with a licensed dentist. A.R.S. § 32-1289(A)
and (C). A dental hygienist in an affiliated practice relationship may perform dental hygiene
procedures within the scope of a dental hygiene license, with three exceptions. A.R.S. § 321289(J).2 The procedures must be performed in specified practice setting(s) pursuant to a written
agreement, written procedures and standing orders established by the affiliated dentist. A.R.S. §
32-1289(F).
Analysis
A. The General and Direct Supervision Requirements in A.R.S. § 32-1281 Do Not
Apply to Affiliated Practice Relationships.
The primary goal in interpreting a statute is to ascertain and give effect to the Legislature’s
intent. State v. Thompson, 204 Ariz. 471, 474, 65 P.3d 420, 423 (2003). To determine
legislative intent, courts look first to the language of a statute. Matter of Maricopa County Juv.
Action No. JA 33794, 171 Ariz. 90, 93, 828 P.2d 1231, 1234 (App. 1992). In construing a

the dentist is in his office, over procedures which the dentist has authorized and for which the dentist remains
responsible.” A.R.S. § 32-1281(I)(2).
2
Hygienists in affiliated practice relationships are prohibited from performing root planing, administering local
anesthetics and nitrous oxide, and placing periodontal sutures.

3

statute, the individual provision at issue must be considered in pari materia -- in the context of
the entire statute of which it is a part. State v. Wood, 198 Ariz. 275, 277, 8 P.3d 1189, 1191
(App. 2000). Thus, in construing the meaning of A.R.S. § 32-1289, we also must consider the
entire statutory scheme relating to the licensing and regulation of dental hygienists, A.R.S. §§
32-1281 through 32-1292.01, but particularly the 2004 amendments to A.R.S. § 32-1281 and 1289. The language of these amendments establish that the supervision requirements of A.R.S. §
32-1281(E) and (F) do not apply to dental hygienists in affiliated relationships.
Section § 32-1281(E) provides that all dental hygienists shall practice under the general
supervision of a licensed dentist, “[e]xcept as provided in subsections F and H of this section.”3
Subsection H provides that “[a] dental hygienist may provide dental hygiene services under an
affiliated practice relationship with a dentist as prescribed in § 32-1289.” Section § 32-1289(C),
which authorizes public health agencies and institutions, school authorities and government
sponsored programs to contract with dental hygienists who have entered into an affiliated
practice relationship, does not require the hygienist to work under general or direct supervision.
A.R.S. §32-1289(C). Instead, the affiliated dentist must be “available to provide an appropriate
level of contact, communication and consultation with the affiliated dental hygienist.” A.R.S. §
32-1289(H). Similarly, a dental hygienist in an affiliated practice relationship is required to
“maintain an appropriate level of contact, communication and consultation with the affiliated
dentist.” A.R.S. § 32-1289(I)(2). The absence of the terms, or any reference to the terms,
“general” and “direct” supervision in § 32-1289 (C), (H) and (I) indicates that the Legislature did

3

Subsection F requires dental hygienists who perform certain enumerated procedures to practice under the direct
supervision of a licensed dentist. Hygienists in affiliated relationships are prohibited from performing the
procedures enumerated in subsection F. See A.R.S. § 32-1289(J) and -1281(B).

4

not intend them to apply to affiliated practice relationships.4
Moreover, an affiliated practice hygienist is “responsible and liable for all services rendered
by the dental hygienist under the affiliated practice relationship.” A.R.S. § 32-1289(I)(3).
Conversely, A.R.S. § 32-1281(I), which defines “direct” and “general” supervision, makes the
supervising dentist responsible for authorized procedures a hygienist performs under supervision.
The differences in the two provisions also indicate that the Legislature intended a different level
of oversight and responsibility to apply to a dental hygienist in an affiliated practice relationship.
B. A.A.C. R4-11-603 Does Not Apply to Affiliated Practice Relationships.
Arizona Administrative Code R4-11-603 states: “A dentist shall not supervise more than
three dental hygienists at one time.” The Board adopted this rule pursuant to its mandate to
adopt rules regulating the practice of dentists and supervised personnel. A.R.S. § 32-1207(A)(1).
This rule applies to the supervision requirements of A.R.S. §32-1281. Because affiliated practice
relationships are not subject to the general and direct supervision requirements, it follows that the
supervisory limitations in R4-11-603 also do not apply to affiliated practice relationships.
C. The Board May Adopt a Rule Limiting the Number of Affiliated Practice
Relationships.
The Board is mandated to adopt rules regarding participation in affiliated practice
relationships by dentists and dental hygienists. A.R.S.§ 32-1289(G). The rules must specify
additional standards and conditions that may apply to affiliated practice relationships. A.R.S. §
32-1289(G) (2). The Legislature, however, did not define the terms “standards” or “conditions.”

4

This conclusion is reinforced by the legislative history, which indicates that the affiliated practice relationship
legislation was intended to create a new degree of supervision and was intended to allow dental hygienists to
perform dental hygiene procedures without general supervision on children 18 years and younger in public health
settings. Arizona State Senate Staff, Fact Sheet for H.B. 2194; Dental Hygienists: Meeting on H.B. 2194 Before the
H. Comm. On Health, 46th leg., 2nd Reg. Sess. 7 (2004). 46th Leg., Second Reg. Sess. at 1 (2004), Committee on
Health, March 4, 2004.

5

Undefined words in a statute may be interpreted according to their ordinary meaning. Circle K
Stores, Inc. v. Apache County, 199 Ariz. 402, 406, 18 P.3d 713, 717 (App. 2001). A “condition”
is defined as something that “restricts.” Webster’s II New Riverside University Dictionary 295
(1994). “Restrict” means to “hold within limits.” Id. at 1002. Accordingly, A.R.S. § 32-1289(G)
(2) allows the Board to restrict by rule the number of affiliated practice relationships in which
dentists and hygienists may participate. The nature of any restriction would be a policy decision
of the Board, subject to the statutory rulemaking process.
Conclusion
Dental hygienists may practice without general or direct supervision in public health
settings, if they have written affiliated practice agreements with affiliated dentists that identify
the procedures and standing orders the hygienist must follow. Dentists and hygienists in
affiliated practice relationships are not subject to the supervision limitation in A.A.C. R4-11-603.
The Board, however, has rulemaking authority to limit the number of affiliated practice
relationships in which dentists or hygienists may participate.

Terry Goddard
Attorney General
458008

6

STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL

ATTORNEY GENERAL OPINION

No. I05-009
(R04-040)

by
Re: Public Benefits under Federal Law and
A.R.S. § 46-140.01

TERRY GODDARD
ATTORNEY GENERAL
December 29, 2005

To: David Berns
Director, Department of Economic Security

Questions Presented
1.

Are programs identified as federal public benefits in the August 4, 1998 United

States Department of Health and Human Services (DHHS) Notice subject to the requirements of
Arizona Revised Statutes (“A.R.S.”) § 46-140.01?
2.

Do the requirements in A.R.S. § 46-140.01 apply to programs identified in 8

U.S.C. § 1611(b) or § 1621(b) as exceptions to the alienage restrictions that generally apply to
federal or state or local public benefits?
3.

Are programs identified in the January 16, 2001 United States Department of

Justice Notice of Final Order as services necessary for the protection of life or safety subject to
the requirements of A.R.S. § 46-140.01?

Summary Answers
1.

Programs identified as federal public benefits in the DHHS Notice dated August

4, 1998 are not subject to the requirements of A.R.S. § 46-140.01 because A.R.S. § 46-140.01
expressly applies only to “state and local public benefits.” The programs identified in the DHHS
notice are, however, subject to the eligibility restrictions, and verification and reporting
requirements that apply to federal public benefits as set forth in 8 U.S.C. § 1611 and other
federal laws.
2.

Programs identified in 8 U.S.C. § 1611(b) or 8 U.S.C. § 1621(b) as exceptions to

the alienage eligibility restrictions that otherwise apply to federal public benefits and state and
local public benefits are not subject to the requirements of A.R.S. § 46-140.01.
3.

Programs listed in the U.S. Department of Justice Notice of Final Order dated

January 16, 2001, as necessary for the protection of life or safety, are not subject to the
requirements of A.R.S. § 46-140.01 if the programs are community based, provide in-kind (noncash) services, and do not condition the provision of assistance, the amount of assistance
provided, or the cost of assistance provided on the individual recipient’s income, as required by
8 U.S.C. § 1621(b)(4).
Background
At the 2004 general election Arizona voters approved A.R.S. § 46-140.01 as part of
Proposition 200. This statute requires that State and local government employees verify the
identity and eligibility of applicants for State and local public benefits not mandated by federal
law. This Office previously advised that “state and local public benefits” subject to A.R.S. § 46140.01 included those programs in Title 46 of Arizona Revised Statutes that are "state and local
public benefits" under 8 U.S.C. § 1621(c). Section 1621 generally establishes that non-citizens

2

who are not qualified aliens are not eligible for State and local public benefits. A different
federal law, 8 U.S.C. § 1611, establishes similar restrictions for “federal public benefits.” Both
of these statutes were part of the Personal Responsibility and Work Opportunity Reconciliation
Act of 1996 (“Federal Welfare Reform Act”), which included many eligibility restrictions based
on immigration status. 1 Pub. L. 104-193, 110 Stat. 2105 [codified in scattered sections of titles 8
and 42 of U.S.C.].
You seek additional guidance regarding the application of the federal law to assist in the
implementing of A.R.S. § 46-140.01 and to ensure compliance with federal law.
Analysis
A. Programs Listed in the United States Department of Health and Human
Services August 1998 Notice as Federal Public Benefits Are Not "State
and Local Public Benefits" Under A.R.S. § 46-140.01.
Section 46-140.01, as added by Proposition 200, expressly applies only to “state and local
public benefits.” As explained in Arizona Attorney General Opinion I04-010, A.R.S. § 46140.01 governs certain programs that are “state and local public benefits” subject to 8 U.S.C. §
1621. Section 1621 specifically provides that the term "state and local public benefits" does not
include "any [f]ederal public benefit under 1611(c) of this title."

8 U.S.C. § 1621(c)(3).

Likewise, by its terms, A.R.S. § 46-140.01 does not apply to “federal public benefits.”
Therefore, a “federal public benefit” subject to 8 U.S.C. § 1611 is not subject to A.R.S. § 46140.01.
A “federal public benefit” is, with some exceptions:
(A) any grant, contract, loan, professional license, or commercial license
provided by an agency of the United States or by appropriated funds of the United
States; and
1

This law also created the Temporary Assistance for Needy Families (“TANF”) block grant program and made
significant changes to the national child support program.

3

(B) any retirement, welfare, health, disability, public or assisted housing,
postsecondary education, food assistance, unemployment benefit, or any other
similar benefit for which payments or assistance are provided to an individual,
household, or family eligibility unit by an agency of the United States or by
appropriated funds of the United States.
8 U.S.C. § 1611(c)(1).
In August of 1998, the U.S. Department of Health and Human Services (DHHS)
published a notice in the Federal Register identifying DHHS programs that provide federal
public benefits under the Federal Welfare Reform Act.

DHHS Notice, PRWORA;

Interpretation of ‘Federal Public Benefit, 63 FR 41658-01, 1998 WL 435846 (Aug. 4,
1998) ("DHHS Notice").

The DHHS Notice also provided general guidance regarding its

interpretation of the term “federal public benefits.” DHHS advised that part A of the
definition (“any grant, contract, loan, professional license, or commercial license provided
by an agency of the United States or by appropriated funds of the United States”)
“generally include[s] agreements or arrangements between Federally funded programs and
individuals, such as research grants, student loans, or patent licenses.”
41659.

Id., 63 FR at

Similarly, the term “grants” refers to grants to individuals, not block grants

provided to states or localities. Id.
Regarding Part B of the definition, DHHS advised that a benefit must satisfy two
conditions. First, it must be one of the enumerated benefits (“retirement, welfare, health,
disability, public or assisted housing, postsecondary education, food assistance, [or]
unemployment benefit”) or be a “similar benefit.” Id. at 41658 (quoting 8 U.S.C. §
1611(c)(1)(b)). Second, it must be provided to an “individual, household or family
eligibility unit by an agency of the United States or by appropriated funds of the United

4

States.” Id. DHHS interpreted “individual, household, or family eligibility unit” to refer to
benefits that are:
(1) provided to an individual, household, or family, and
(2) the individual, household, or family must, as a condition of receipt, meet
specified criteria (e.g., a specified income level or residency) in order to be
conferred the benefit.
The benefits do not include “benefits that are generally targeted to communities or
specified sectors of the population (e.g., people with particular physical conditions, such as
a disability or disease; gender; general age groups, such as youth or elderly).” Id. at 41658.
For example, DHHS advised that a benefit provided under the Maternal and Child Health
program, which provides health services to women and children, is not a “federal public
benefit.” Id. at 41659.
Based on these principles and a review of DHHS programs, the DHHS Notice identified
29 specific programs or sources of funding as “federal public benefits that are subject to the
eligibility restrictions in 8 U.S.C. § 1611.2 These federal benefits are generally not available to
immigrants who are not lawfully present in the United States. See 8 U.S.C. § 1611(a). Even
though some of the programs identified in the 1998 DHHS notice are administered by State and

2

The programs included: Adoption Assistance; Administration on Development Disabilities (ADD) — State
Developmental Disabilities Councils, ADD special projects, and ADD university affiliated programs; Adult
Programs/Payments to Territories; Agency for Health Care Policy and Research Dissertation Grants; Child Care and
Development Fund; Clinical Training Grant for Faculty Development in Alcohol & Drug Abuse; Foster Care;
Health Profession Education and Training Assistance; Independent Living Program; Job Opportunities for Low
Income Individuals; Low Income Home Energy Assistance Program; Medicare; Medicaid (except assistance for an
emergency medical condition) Mental Health Clinical Training Grants; Native Hawaiian Loan Program; Refugee
Cash Assistance; Refugee Medical Assistance; Refugee Preventive Health Services Program; Refugee Social
Services Formula Program; Refugee Social Services Discretionary Program; Refugee Targeted Assistance Formula
Program; Refugee Targeted Assistance Discretionary Program; Refugee Unaccompanied Minors Program; Refugee
Voluntary Agency Matching Grant Program; Repatriation Program; Residential Energy Assistance Challenge
Option; Social Services Block Grant; State Child Health Insurance Program; Temporary Assistance To Needy
Families. Id. at 41660. Although these programs are “federal public benefits,” some of the specific benefits or
services that these programs provide may not be provided to an “individual, household, or family eligibility unit.” If
a service is not provided to an “individual, household, or family eligible unit,” it would not be a “federal public
benefit” subject to 8 U.S.C. § 1611. Id. at 41658.

5

local governments, they are federal public benefits, not State and local public benefits. The
DHHS Notice acknowledges this distinction between state and local public benefits and federal
public benefits:
Services or benefits that are wholly funded by state or local governments may be
“state or local public benefit(s)” as defined in section 411(c) of [the Federal
Welfare Reform Act]. However, services or benefits that are wholly or partially
funded with DHHS resources must comply with the interpretation provided in this
Notice.
DHHS Notice, 63 FR at 41660.
Any program identified in the DHHS notice as a federal public benefit is not a State
and local public benefit subject to A.R.S. § 46-140.01. Under the Federal Welfare Reform
Act, States and other entities that provide federal public benefits are required to verify that
applicants for federal public benefits are U.S. citizens or qualified aliens. 8 U.S.C. § 1611.
States that opt to participate in federal programs are required to follow federal standards
and meet federal requirements.
B.

Programs Identified in 8 U.S.C. § 1611(b) and 8 U.S.C. § 1621(b) Are
Provided to All Eligible Persons Regardless of Immigration Status.

Although 8 U.S.C. § 1611 broadly restricts the eligibility of persons not lawfully in the
United States for “federal public benefits,” it also includes several exemptions from those
eligibility restrictions. 8 U.S.C. § 1611(b)(1) identifies several federal public benefits that are
exempt from the eligibility restrictions in 1611(a). Under federal law these federal public
benefits are available to people regardless of whether they are lawfully present in the United
States:
1.

Emergency medical care (other than organ transplants) for Medicaid
eligible persons (8 U.S.C. § 1611 (b)(1)(A));

6

2.

Short-term, non-cash, in-kind emergency disaster relief (8 U.S.C. § 1611
(b)(1)(B));

3.

Non-Medicaid public health assistance for immunizations with respect to
immunizable diseases, as well as for testing and treatment of symptoms
caused by communicable diseases (8 U.S.C. § 1611 (b)(1)(C));

4.

Programs, services, or assistance (such as soup kitchens, crisis counseling and
intervention, and short-term shelter) specified by the U.S. Attorney General, in
the Attorney General’s sole and unreviewable discretion after consultation with
appropriate federal agencies and departments, which (i) deliver in-kind services at
the community level, including through public or private nonprofit agencies; (ii)
do not condition the provision of assistance, the amount of assistance provided, or
the cost of assistance provided on the individual recipient’s income or resources;
and (iii) are necessary for the protection of life or safety (8 U.S.C. § 1611
(b)(1)(D));

5.

Programs for housing or community development assistance or financial
assistance administered by the U.S. Secretary of Housing and Urban
Development, any program under Title V of the Housing Act of 1949, and any
assistance under 7 U.S.C. §1926C to the extent the alien was receiving such a
benefit on August 22, 1996 (8 U.S.C. § 1611(b)(1)(E));

6.

Title II Social Security Act payments to an alien lawfully present in the U.S. as
determined by the U.S. Attorney General if nonpayment would contravene an
international agreement, be contrary to 42 U.S.C. § 402(t), or the alien was

7

entitled to the benefit based on an application filed on or before August 1996 (8
U.S.C. § 1611(b)(2));
7.

Medicare payments to an alien lawfully present in the U.S. as determined by the
U.S. Attorney General, and with respect to benefits payable under Part A of
Medicare, if the alien was authorized to be employed and with respect to any
wages attributable to employment which are counted for purposes of eligibility
for such benefits (8 U.S.C. § 1611(b)(3));

8.

Railroad Retirement Act of 1974 or Railroad Unemployment Insurance Act
benefits to an alien who is lawfully present in the United States as determined by
the U.S. Attorney General or to an alien residing outside the U.S. (8 U.S.C. §
1611(b)(4)); and

9.

SSI benefits (or those programs related to eligibility under SSI) for an alien who
was receiving them on August 22, 1996 (8 U.S.C. § 1611 (b)(5)).

A state agency administering these federal programs should not verify the immigration
status of applicants for the exempt programs because, under federal law, these programs are
available without regard to the applicant’s immigration status. See DOJ Notice of Interim
Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of
PRWORA, AG Order No. 2129-97, 62 FR 61344, 61347 (November 17, 1997) (“no verification
of an applicant’s status as a U.S. citizen, U.S. non-citizen national or qualified alien should be
undertaken where benefits are not contingent on such status”).
Similarly, 8 U.S.C. § 1621, which governs “state and local public benefits,” exempts
certain programs from its eligibility restrictions. Although A.R.S. § 46-140.01 applies to State
and local public benefits in Title 46 of Arizona Revised Statutes that are subject to 8 U.S.C. §

8

1621, those programs exempt from 8 U.S.C. § 1621 are not subject to the eligibility verification
requirements in A.R.S. § 46-140.01. Section 46-140.01 applies to State and local public benefits
not mandated by federal law. Although federal law does not mandate “state and local public
benefits,” it does mandate that some state and local public benefits be provided without regard to
a person’s immigration status. Those programs that are available without regard to immigration
status are specified in 8 U.S.C. § 1621(b). They include primarily emergency services:
(1)

assistance for health care items and services that are necessary for the treatment of
an emergency medical condition and are not related to an organ transplant;

(2)

short-term, non-cash, in-kind emergency disaster relief;

(3)

public health assistance for immunizations which respect to immunizable diseases
and for testing and treatment of symptoms of communicable diseases whether or
not such symptoms are caused by a communicable disease;

(4)

Programs, services, or assistance (such as soup kitchens, crisis counseling and
intervention, and short-term shelter) specified by the United States Attorney
General, in the Attorney General’s sole and unreviewable discretion after
consultation with appropriate Federal agencies and departments, which (A)
deliver in-kind services at the community level, including through public or
private nonprofit agencies; (B) do not condition the provision of assistance, the
amount of assistance provided, or the cost of assistance provided on the individual
recipient’s income or resources; and (C) are necessary for the protection of life or
safety.

Those programs that are exempt from the eligibility restrictions in 8 U.S.C. § 1611 or §
1621 are not subject to the provisions of A.R.S. § 46-140.01.

9

C.

Programs Necessary for Life and Safety are Exempt from the
Requirements of A.R.S. § 46-140.01.

The Federal Welfare Reform Act required the Attorney General of the United States, in
the Attorney General’s “sole and unreviewable discretion,” to identify certain federal, state and
local public benefits that are exempt from the general prohibition against undocumented
immigrants receiving those public benefits.

8 U.S.C. §§ 1611(b)(1)(D); 1621(b)(4).

The

Attorney General was required to identify programs, services, and assistance that meet three
criteria: (1) deliver in-kind services at the community level, including through public or private
non-profit agencies; (2) do not condition the provision of assistance, the amount of assistance
provided, or the cost of assistance provided on the individual recipient’s income or resources;
and (3) are necessary for the protection of life or safety. 8 U.S.C. § 1611 (b)(1)(D). Congress
specified that soup kitchens, crisis counseling and intervention, and short-term shelter were
examples of such assistance. Id.
To satisfy this statutory requirement, in 2001, Attorney General Reno identified programs
necessary for the protection of life or safety. DOJ Notice of Final Specification of Community
Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation, A.G.
Order No. 2353-2001, 66 FR 3613, 3616 (Jan. 16, 2001) (“2001 Order”) The services listed in
the order included:
(1)

Crisis counseling and intervention programs; services and assistance
relating to child protection, adult protective services, violence and abuse
prevention, victims of domestic violence or other criminal activity; or
treatment of mental illness or substance abuse;

(2)

Short-term shelter or housing assistance for the homeless, for victims of
domestic violence, or for runaway, abused or abandoned children;

10

(3)

Programs, services, or assistance to help individuals during periods of
heat, cold, or other adverse weather conditions;

(4)

Soup kitchens, community food banks, senior nutrition programs such as
Meals on Wheels, and other such community nutritional services for
persons requiring special assistance;

(5)

Medical and public health services (including treatment and prevention of
diseases and injuries) and mental health, disability, or substance abuse
assistance necessary to protect life or safety;

(6)

Activities designed to protect the life or safety of workers, children and
youths, or community residents; and

(7)

Any other programs, services, or assistance necessary for the protection of
life or safety.

These programs are not subject to the alienage restrictions in the Welfare Reform Act, if
they are in-kind, community-based services and the provision of the assistance, amount of
assistance or the cost of the assistance are not conditioned on the recipient’s income or resources.
8 U.S.C. 1621(b)(4). According to the Order, "[n]either states nor other service providers may
use the [Welfare Reform Act] as a basis for prohibiting access of aliens to any programs,
services, or assistance covered by this Order." Unless the person is otherwise ineligible for the
services, "benefit providers may not restrict the access of any alien to the services covered by
this Order.” 2001 Order.3

These emergency programs that meet the statutory requirements in 8

3

The Order also specifically found that the alienage restrictions in the Welfare Reform Act did not apply to police,
fire, ambulance, transportation, sanitation or other “widely available services.” 2001 Order, 64 FR at 3616. The
U.S. Attorney General directed that “[s]ervice providers and other interested parties should refer to benefit-granting
agencies’ interpretations of the term ‘federal public benefit’ as used in the Act in order to determine whether their
program is a federal public benefit and therefore subject to the alienage restrictions of the Act. Id. at 3614.

11

U.S.C. § 1621(b)(4) are not subject to A.R.S. § 46-140.01 because federal law mandates that
they be provided without regard to immigration status.
Conclusion
Federally funded public benefits and programs within 8 U.S.C. § 1611 are not subject to
A.R.S. § 46-140.01, which expressly applies only to state and local public benefits. This
includes those programs identified in the 1998 DHHS notice as “federal public benefits.” In
addition, certain emergency programs exempt from the eligibility restrictions in 8 U.S.C. § 1611
and § 1621, including those identified in the U.S. Attorney General Order, are not subject to the
eligibility verification requirements in A.R.S. § 46-140.01.

Terry Goddard
Attorney General
454595

12