As focused on Title 15 as we tend to be, we sometimes forget that there are other Arizona statutes that also provide school district governing boards with additional powers. Title 12 contains just such powers when the school board carries out its executive functions. In this article, “I Didn’t Know the Board Could Do THAT!”: Oaths, Swearing, and Subpoenas. I am offering some details on the subject.
For instance, when the Board sits as the hearing panel for the dismissal of a certificated or a classified term employee for cause or on a disciplinary hearing for a student, it can not only subpoena witnesses to the hearing, it can administer oaths to the witnesses before they testify. A.R.S. §12-2212 states, “When a public officer is authorized by law to take evidence, he may issue subpoenas, compel attendance of witnesses and production of documentary evidence, administer oaths to witnesses, and cause depositions to be taken, in like manner as in civil actions in the superior court.” Since members of the governing board are “public officers,” they can require witnesses to attend the hearing, produce documents that are in the witness’ possession at the hearing, and, yes, swear them in.
If the person doesn’t want to come testify or doesn’t bring the documents that the person has been ordered to bring to the hearing, the Board also has to power to compel them to do so by having the Superior Court of the county act as the Board’s enforcer. A.R.S. §12-2212 (B) says, “If a witness fails to appear at the time and place designated in the subpoena, or fails to answer questions relating to the matter about which the officer is authorized to take testimony, or fails to produce a document, the officer may, by affidavit setting forth the facts, apply to the superior court of the county where the hearing is held, and the court shall thereupon proceed as though such failure had occurred in an action pending before it.”
In order to take advantage of this statute, the Board should appoint one member of the Board to sign (“issue”) subpoenas submitted by the parties on behalf of the Board. The Board, when serving as the trier of fact will issue subpoenas for both the administration and for the employee or the parent/guardian—assuming either or both parties want witnesses subpoenaed or subpoenaed along with a directive to bring specified physical evidence that is within the witness’ control. It is the duty of the party requesting the subpoena to serve the subpoena on the witness.
Another type of “swearing” is administering the oath of office. Just as with swearing in a witness, the Board can administer other oaths as “executive” officers under A.R.S. §12-2222, but in this case, there actually is a specific Title 15 statute that allows Board members to swear each other in—A.R.S. §15-426 (C) states, “Members of governing boards may administer the oath of office to each other.” Once the oath of office is sworn, it must be filed with the County School Superintendent, again, according to §15-426 (C), which states, “When each governing board member elected subscribes to the oath of office attached to the certificate, it shall be forwarded on the same day to the county school superintendent.” The new Board member must also file a copy of the acknowledged oath in the school district office. Under Arizona’s public records retention requirements, the oath is maintained at the school district for as long as the Board member serves on the Board and for a period of five (5) years after last serving on the Board.
As always, seek the advice of your District’s attorney regarding complying with the open meeting law in appointing a person to issue subpoenas; in drafting a form of subpoena to be issued by the hearing officer, if the Board does not already have a form subpoena; and when and how oaths, including oaths of office, should be administered.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Oaths, Swearing, and Subpoenas, or other Education Law matters, please feel free to contact Candyce B. Pardee at 800.863.6718, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona with a branch office in Yuma, Arizona, and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.
 Arizona’s statutes pertaining to education.
 Arizona’s statutes pertaining to courts and civil proceedings.
 Or a hearing officer, acting in its stead.
 A.R.S. §§15-341 (A)(21) and (22); 15-539; 15-541.
 As an example, ASBA Policy GDQD.
 A.R.S. §15-843.
 If the Board chooses to appoint a hearing officer, the hearing officer can issue the subpoenas.
 This is called a “subpoena deuces tecum.”
 A.R.S. §38-231 sets out the oath of office that must be sworn by each employee and elected official, unless that person is a member of a religious belief that precludes the swearing of such oaths or affirmation, in which case, the employee or elected official can draft an affirmation that is in line with those religious beliefs. See: Op. Atty. Gen. I86-094 (R86-027); Connell v. Higgenbotham, 403 U.S. 207 (1971); Cole v. Richardson, 405 U.S. 676 (1972).
 A.R.S. §38-233 (D) “The official oaths of all officers and employees of all school districts shall be filed of record in the school district office”; ASBA Policy BBBB, “Board members shall take and subscribe to the oath prescribed for public officers pursuant to A.R.S. 38-231, and forward the acknowledged oath on the same day to the County School Superintendent. The person taking the oath shall file a copy of the acknowledged oath in the District office. The District office shall keep such copy on file as long as the Board member remains on the Governing Board and for a period of five (5) years after last serving on the Board.”
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