Arizona's treasurer can boost withdrawals from the state land trust to increase school funding without worrying about liability if the voter-approved law requiring the increased spending is overturned, state Attorney General Mark Brnovich said in a legal opinion issued Wednesday.
The opinion released by Arizona's top legal officer responds to a request Treasurer Jeff DeWit made following last month's passage of Proposition 123. The new law will increase distributions from the $5.2 billion land trust by about $2.2 billion over 10 years.
DeWit wanted to know whether he could increase distributions without congressional action, since current law requires the trust to retain enough funds to make up for inflation. But the opinion written by Solicitor General John Lopez IV didn't address that question.
Instead, it answers other questions DeWit posed, including whether the state board overseeing the trust would be liable.
"The Board does not face liability, personal or otherwise, for acting in compliance with the law as it stands currently," Lopez wrote. "Arizona's public officials have a duty to obey laws unless a court enjoins them or declares them unconstitutional."
DeWit also wanted to know whether private charter schools are eligible for the money, since federal law creating the trust says only schools under exclusive government control are eligible to get land trust money. But Lopez wrote that charter schools have been receiving money from the trust, which is primarily meant to fund public schools, for more than 20 years. There's no change in Proposition 123 that would compel the treasurer or the trust board to change that policy, he wrote.
The opinion means the trust should cut checks to schools for about $170 million by the end of the month, and slightly larger amounts in the budget year that starts July 1 and each subsequent year, according to a legislative analysis. The Legislature also added $126 million in extra general funding spending for schools this year and more in coming years as part of a deal that settled a lawsuit brought by schools who alleged the state underfunded their operations.
The first lawsuit challenging the measure's legality has already been filed in federal court, asking a judge to rule that the land trust scheme is illegal. That case, filed by a Phoenix man without an attorney, is awaiting its first hearing.
Gov. Doug Ducey championed Proposition 123, which won by a narrow margin.
"We appreciate the opinion and look forward to schools getting the check," Ducey spokesman Daniel Scarpinato said.
DeWit didn't immediately return calls seeking comment.
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