Hundreds of former employees of Tucson’s largest school district were blacklisted from ever being employed in the district again — wrongfully, secretly and seemingly illegally — despite never having any serious disciplinary issues on their records.
Instead, Tucson Unified School District officials say the former employees were put on the blacklist because of “personality clashes” with supervisors, poor evaluation scores and using all of their vacation time — offenses that aren’t grounds for firing, let alone blacklisting.
In many cases, it’s unclear why the employees were put on the blacklist in the first place or who blacklisted them.
And many of those employees were never told they were blacklisted.
Under new Superintendent Gabriel Trujillo, TUSD recently publicly acknowledged for the first time that it kept a long-rumored, secret “Do Not Hire List” that dated back two decades and contained as many as 1,400 entries.
Shortly after taking the helm last March in an interim capacity, Trujillo ordered an audit of the list, which found only 516 had been justifiably blacklisted — they had either been fired for cause or had resigned and signed a separation agreement stating they would not be eligible to work in the district again.
The other roughly 900 employees had been wrongly blacklisted.
Trujillo said what probably started as an earnest attempt to ensure that teachers who have proven themselves to be unfit don’t get back into classrooms morphed into a kind of free-for-all where site administrators, principals and assistant principals were able to add people to the list with no oversight.
“I think there was some attempt to create this informal list of people who were sort of difficult employees, who weren’t fired, but let’s just keep this list of people we would just rather see not come back,” he said, noting that is not a sound legal practice. “Then over time, more people had access to it, and it just became the principal could just call HR and say (this employee) always comes in late, he doesn’t turn in lesson plans, I don’t think he’s a good fit. Then all of a sudden you’re on this list.”
Now, Trujillo worries the district has opened itself up to lawsuits or worse.
Employees who can prove they suffered as a consequence from being wrongly blacklisted may have a case to sue the district for damages.
And under Arizona law, it is a Class 2 misdemeanor to engage in blacklisting, which is defined transmitting a list of names among two or more employers or supervisors to prohibit someone from working.
An attorney specializing in Arizona employment law said the list appears to be cut-and-dried illegal.
And a spokesperson for the Arizona Attorney General’s Office, while declining to comment on TUSD’s specific situation, said if anyone is prevented from working without just cause, that is “troubling and possibly illegal.”
Trujillo said the district’s attorney has stopped short of calling the list illegal, but “strongly stated” that the list opened the district up to “significant legal liability.”
“I’m very concerned the district is going to be sued,” Trujillo said.
The blacklist had been talked about, but never actually spotted, for so long that it became part of TUSD lore, like the district’s own jackalope, a mythical animal, according to TUSD Governing Board Member Mark Stegeman.
“It was this deep dark secret of TUSD when I first got onto the board (in 2009),” he said. “It was like a legend, or rumor for many years.”
Stegeman first started hearing whispers of the blacklist shortly after being elected. Employees who had left the district with no disciplinary problems on their record complained to him that they couldn’t get jobs within the district or at other nearby districts and didn’t know why.
After years of asking about it and being “stonewalled” by various superintendents and employees, Stegeman first received confirmation from an employee that the list existed about three years ago, but said he still couldn’t get the list or any details about it.
“It was really creepy. It drove people out of education. In some cases, they were bad (employees). In some cases, it was retaliation,” he said.
Jason Freed, head of the Tucson Education Association, the local teachers union, had the same struggle.
He said TEA has “worked very hard, unsuccessfully” to find out if there really was a list, who was on it and why. But the organization for years was rebuffed by former superintendents, board members and human-resource staffers who said it didn’t exist, he said.
“TEA has been asking for it as long as the whispers have been around,” Freed said.
The list was so elusive, and the denials so consistent, that even though he heard time and time again from educators who believed they had been secretly blacklisted, Freed began to doubt the list existed.
Or he thought if the blacklist did exist, it was all “people who knew they were on it.”
“What’s really troubling is that the list was dominated by individuals who shouldn’t be on the list,” he said.
Both Stegeman and Freed applauded Trujillo for being the first to confront the issue.
But both say the blacklist has caused damage in a district that has more than 80 teacher vacancies and constantly struggles to recruit and retain qualified teachers and employees.
DIGGING AND FINDING
When Trujillo was first appointed as acting superintendent, he received four or five emails a day from people who were concerned they had been secretly blacklisted.
At first, he figured the district could take care of it on an individual basis, providing amnesty to those who were placed on the list wrongfully. But there were so many that it quickly became clear further review was warranted.
“It was literally the first big thing that jumped out at me on Day One,” he said.
When Trujillo got the list, he started trying to figure out who was authorizing the blacklisting and why people had been blacklisted in the first place.
“Once we started kicking one rock, we started kicking another and another, and quickly figured out it was a position of liability we didn’t want to be in. And certainly as a new administration, this isn’t the kind of practice I believe in, so just on those ethical grounds I didn’t want it to continue,” he said.
In September, Trujillo notified the TUSD Governing Board of the problem, explaining that the district would no longer keep a “list,” though anyone who was still not eligible for rehire would have that noted in their personnel file.
Several trends emerged from Trujillo’s audit.
The largest number of people were on the list for poor evaluation scores, he said. But while poor evaluation scores are problematic, they’re not grounds to blacklist someone, he said, noting that employees can improve with training.
Another “really big trend” was people being put on the list for “relational challenges” with a supervisor — often a simple “personality clash” that could have been solved by moving the employee to a new supervisor.
Third largest was attendance and tardiness — including taking personal and vacation time that the employees were allotted. But even those that had excessive absences, Trujillo said, don’t deserve to be put on a do -not-hire list.
There’s no way to know how many people were denied jobs at TUSD or given negative references at other districts as a result of the blacklist, Trujillo said.
Trujillo wouldn’t name any frequent blacklisters, but acknowledged that “there were some former administrators, people who are no longer with the district, that I do think kind of used this list as some sort of tool or resource contrary to my belief system.”
WHO, WHEN, WHY
An auditing list provided to the Arizona Daily Star in response to a public records request found as many as 1,400 employees deemed not rehireable were put into a database containing the employee’s position, last date of employment and a code signifying why they were put on the list.
That database is incomplete and missing many fields. Many employees don’t have a code signifying why they were put on the list, and in some instances there are asterisks or question marks in that field.
An analysis of the database shows that of the 1,001 entries that contain job titles, more than half were teachers, including substitutes.
But the list included all manner of employees, including student helpers, bus drivers, principals, campus monitors, coaches, crossing guards, custodians, program directors and nurses.
Of the more than 1,300 who had a code signifying why they were blacklisted, the largest chunk had resigned, were terminated or retired. Unsatisfactory performance and unprofessional conduct were also large categories.
Some people were blacklisted for good reason — their fingerprint clearance cards were denied or turned up felony convictions. Others had their teaching certificates revoked.
Trujillo noted that even if employees were listed for something seemingly problematic, like unprofessional conduct, that doesn’t mean the district had supporting documentation for that claim.
And there were periods when people were being blacklisted at faster rates. The database shows 869 employees who have a date associated with their blacklisting. The earliest blacklisted employee left TUSD in 1997 and was one of only three to be blacklisted that year. In 2012, the district blacklisted at least 117 people. In 2013, at least 96 employees were blacklisted.
The blacklist existed through at least eight different administrations.
Former TUSD superintendent John Pedicone, who led the district from 2010 until 2013, said he never saw or heard complaints about the list.
But he said school districts need to keep a list of employees who, for documented serious problems, should not be allowed back.
The Arizona Board of Education certifies teachers and revokes teaching certificates for teachers who have been found to be unfit to teach for a variety of reasons. This year alone, the board’s investigative unit closed 727 cases and had 438 cases still pending, according to its year-end report.
But Pedicone said that’s the top-level screening for serious offenses, and districts should have a second level of screening for employees whose problems don’t rise to that level but are serious problems nonetheless.
“I don’t think there’s anything wrong with that, as long as there’s a legitimate process that monitors that and keeps it as a part of a legitimate legal HR process. Anything other than that is inappropriate. … It shouldn’t be a hit list,” he said.
The line between what are acceptable human-resources practices and what is illegal is murky.
Ivelisse Bonilla, a Tucson attorney who specializes in Arizona employment law, said if TUSD was adding people to the list with no oversight and no documented reason, that’s exactly what the law against blacklisting was created to stop.
“This is blacklisting at its best. It is illegal,” she said.
She said if a person can’t pass a fingerprint clearance or has been convicted of a crime, districts can keep and disclose that information.
But TUSD’s case seems to go beyond that, she said.
“Because of this activity, if anyone was prevented from engaging in useful occupation, that employee was severely harmed” and may have a legal case to sue the district, depending on the specific circumstances, she said.
Ryan Anderson, a spokesman for Arizona Attorney General Mark Brnovich, agreed that districts have a right to maintain a list of teachers and employees who have been disciplined or do not meet standards to be teachers. But if people are blacklisted over personality conflicts, that’s problematic.
Anderson said he didn’t know enough to say where exactly the line is between a legal list and an illegal one, but encouraged anyone who thinks they were wrongly blacklisted to reach out to the Attorney General’s Office.
Trujillo said TUSD planned to send letters notifying people who were wrongfully placed on the blacklist, but are now cleared, that they are able to apply in the district.
But after discussing it with the legal team, the district decided to send a notice around Thanksgiving that didn’t mention the blacklisting and instead just notified former employees that they were in good standing and could apply.
He said they decided against mentioning the blacklist because they didn’t want to risk further harming the former employees in case their current employers saw the letter and started asking questions.
Freed, the Tucson Education Association president, said now that the issue is out in the open, it will be easier to monitor .
“Now that we know this list exists, it doesn’t get to go back into the closet,” he said.