Here's The Poop On The 'Star's' Would-Be Sex-Harassment Scoop.
By Chris Limberis
THE TUCSON UNIFIED School District is spending thousands
of tax dollars to try to cover up sexual harassment complaints
against longtime administrator Ed Arriaga.
With approval from TUSD Board President Joel T. Ireland, district
lawyers took the unprecedented step last week to get Pima County
Superior Court Judge Kenneth Lee to block The Arizona Daily
Star from publishing the details of the claim and nearly $18,000
settlement arising from Arriaga's alleged harassment of compensation
and benefits manager Sue Carda in 1996.
The Star received the material anonymously in the mail
midsummer. The Weekly also received a packet of material
from the Carda case anonymously.
Arriaga, 53, has denied any wrongdoing. Lawyers for TUSD have
worked hard to keep his name and the allegations secret, including
having outside counsel Grace McIlvain win a concession to keep
his name from the final settlement agreement.
Documents show that Carda began complaining about Arriaga's behavior
nearly two years ago.
She reported that she was afraid of his physical contact.
According to Carda's complaint, Arriaga, then TUSD's executive
director of human resources, called her in for a meeting in his
office at 5:30 p.m. on September 18, 1996. As she was leaving
after receiving some papers, Arriaga allegedly came up behind
her and put his arms around her, restrained her and kissed her
with his lips on the back of her head. Arriaga, the complaint
alleges, also said, "I really would like for you to be able
to come to these out-of-town conferences with me, but I don't
know what your situation is like at home."
Carda confronted Arriaga five days later and told him the only
acceptable physical contact was a professional handshake. Papers
show that she believed Arriaga made improvements for the next
three weeks.
But On October 18, Arriaga invited Carda and another human resources
employee, Karen Mejia, to lunch at Micha's on South Fourth Avenue.
As the three finished, Arriaga allegedly placed his hand on Carda's
knee and patted it as he told Mejia about Carda's job, according
to the papers. He later allegedly put his arm around Carda.
Carda, 41, filed a complaint with the state Attorney General's
Office Civil Rights Division on November 25 and was told to first
file with TUSD's Equal Employment Opportunity Office, also called
the Equity Development Office.
Mike Tully, a TUSD lawyer who was then the equal opportunity
officer, conducted an investigation and said in a December 12,
1996, report that there was not cause to believe Arriaga sexually
harassed Carda.
In March 1997, Carda filed a claim against TUSD alleging sexual
harassment by Arriaga. Despite repeated denials, TUSD settled
and rushed to keep the matter secret.
Judge Lee, in his second year on the bench, did what TUSD's
lawyers wanted. He issued a temporary restraining order last week
that equates to prior restraint, which the U.S. Supreme Court
has consistently ruled is a violation of the First Amendment guarantees
of freedom of speech and freedom of the press. The Arizona Supreme
Court also has ruled that the state constitution forbids prior
restraint.
It's not as if prior-restraint cases are obscure. Included is
The New York Times vs. U.S. case in 1971, in which The
Times obtained and published the "Pentagon Papers,"
detailing how the government was prosecuting the Vietnam War.
Courts have been loathe to restrain before publication even the
most objectionable material, as in the virulently anti-Semitic
trash that formed the basis of the 1931 Near vs. Minnesota
case.
The Star appealed but did not defy Lee's order. The Arizona
Court of Appeals on Monday announced it would not hear arguments
until Lee made a final ruling, which was expected this Thursday,
September 24.
Lee agreed with TUSD's lawyers that the documents should be secret,
reasoning they're protected by attorney-client privilege.
"What's more fundamental than the attorney-client privilege?"
Lee asked, completely ignoring the First Amendment.
TUSD Superintendent George Garcia and Ireland, an Episcopalian
priest and insurance case lawyer, got what they wanted: To keep
the Star's TUSD reporter, Sarah Tully Tapia, from writing
about the packet of information that detailed settlement discussions
and Carda's complaints against Arriaga when he was her boss as
TUSD's executive director of human resources.
It's a job that Ireland and his colleagues elevated Arriaga to
after he and two other Rincon High School administrators were
accused of harassing Rincon teacher Paula Morris. That case cost
TUSD taxpayers $50,000 to settle in 1996.
Arriaga, a TUSD employee for 30 years, abruptly retired last
year. Beset with financial problems and a recent bankruptcy, Arriaga
now is serving as interim principal at Sahuaro High School. He
and his wife, Mary Agnes, a 50-year-old real-estate agent, are
entangled in another legal web spun with allegations that she
mishandled assets and misspent and improperly allocated money
from her aunt's estate, for which she is the executrix.
The Arriagas listed $380,025 in assets and $166,044 in debts
in their September 1, Chapter 13 filing in U.S. Bankruptcy Court.
Included are debts to several law firms in the pending litigation
and anticipated, but unspecified payments to two of the aunt's
heirs. Among the couple's consumer debt is $362 to Victoria's
Secret.
A former principal at Tucson High, Arriaga is a particular favorite
of TUSD Board Member Gloria Copeland, who has a child at Sahuaro
High. Copeland told the Tucson Citizen last week that Arriaga
"brought a breath of fresh air to that campus." Leaders
of an organization of Sahuaro parents do not agree and are glad
that Arriaga took himself out of the running for permanent appointment.
BUSY WITH a panoply of protests at last week's meeting
of the TUSD Board, Tully Tapia found time to ask Ireland about
the Carda settlement. Ireland promptly demanded an investigation
into how Tully obtained the documents.
"Somebody broke the law to send them," Ireland told
Tully Tapia. "My guess is that some board member who has
a beef against someone sent them."
TUSD's hired gun John C. Richardson, of DeConcini, McDonald,
Yetwin & Lacy, went so far as to accuse Tully Tapia of obtaining
the documents "through improper or illegal means."
When it comes to reporting on TUSD, it may now be against the
law to open your mail.
Star lawyer Phil Higdon replied in court papers that Tully
"received the material in an unmarked envelope through the
U.S. mail. Ms. Tully asked no one at TUSD to send her this material,
was told by no one at TUSD the material would be sent, and has
no idea who sent it."
In a brief conversation, Carda told The Weekly that she
was mortified that details of her supposedly confidential settlement
and complaint were being leaked.
"Based on what I've been reading in the papers, it's obvious
that TUSD is violating the settlement agreement by leaking the
details," Carda said.
Carda refused to discuss anything to do with her complaint or
the settlement.
The great irony in TUSD's vigilance is that the Carda-TUSD agreement
warns that the details may have to be released to the public:
"The parties acknowledge that TUSD may be required to disclose
this agreement and or some of its terms because of TUSD's status
as a public entity and pursuant to the Arizona Public Records
Act, the Arizona Open Meeting Law, state auditing proceedings,
or in response to judicial or other legal processes."
Tully Tapia, a journalist since a teen and a 1994 graduate of
the University of Arizona, has covered TUSD for three years. She
is a member of a pioneer Tucson family, and a distant cousin of
Mike Tully, the TUSD lawyer who initially investigated Carda's
complaint.
The papers show that Carda and her husband signed an agreement
on May 8, 1997 that awarded her a settlement worth nearly $18,000.
Of that, $12,500 was for emotional distress. She also received
$400 as reimbursement for related medical expenditures and won
back about 170 hours of sick time worth more than $3,000. TUSD
also agreed to pay Carda's lawyer, Cynthia Kuhn, $2,000.
Ireland signed the document six days later. And Tully Tapia has
been on the hunt for details of Carda's complaints against Arriaga
ever since the TUSD Board approved the settlement in secrecy.
The Star asked for TUSD's records of all sexual harassment
investigations and any records of disciplinary actions against
employees since 1995. TUSD then gave two years worth of records
to Superior Court Judge Gilbert Veliz.
He concocted bad law that Star editors and the Star's
St. Louis-based Pulitzer parent company let stand. Veliz's ruling
allowed TUSD to keep the documents secret.
Release, Veliz wrote on March 23, "would have a chilling
effect on the investigative and remedial process and discourage
participants from cooperating so as to arrive at an expeditious
and constructive solution.
"Public disclosure of sexual harassment investigations carries,
for all participants, a substantial risk of unreasonable injury
to their personal and professional reputations," Veliz wrote.
"Those in the system know this and the benefits the public
receives from the present system of early identification, investigation,
and remedial action, if warranted, would break down with public
disclosure."
Finally, Veliz said that to release records with names stricken
"would lead to a flurry of speculation and innuendo as various
parties and entities tried to fill in the blanks. All of this
would be to the detriment of the school district, its personnel,
and the public which the district serves."
Judge Lee, described by some lawyers as the "brains behind"
the Burt Kinerk law firm, was appointed by J. Fife Symington III
in April 1997, before the Republican governor was convicted in
federal court on multiple counts of fraud.
Lee was eager to rely on Veliz and TUSD's lawyers. It's an eagerness
to support the establishment that Lee has shown in his brief tenure
on the bench. In May the Court of Appeals unanimously overturned
Lee's decision prohibiting the City of Tucson from regulating
billboard lights. The city code was designed to prevent light
pollution and protect conditions for southern Arizona astronomy.
Lee also issued rulings in a "lemon-laundering" case
that benefited Ford Motor Co., and he threw out a suit filed by
a Tucson cop who was served a bloody burrito at a nationally franchised
taco stand.
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