By
The Associated Press
PHOENIX - A major schools group is waving a red flag about the possibility that a voter-approved sales tax increase for education may not be protected from changes by the Legislature.
At issue is whether the so-called Voter Protection Act applies to Proposition 301. That measure will raise the state's sales tax in June to 5.6 percent from the current 5 percent to produce a projected $450 million a year for education.
Spokesmen for the Arizona School Boards Association pointed to a legal opinion from Legislature's bill-drafting agency. That opinion said Proposition 301 was approved and put on the ballot by the Legislature in such a way that it legally was not a referendum.
Other legislative lawyers disagree or have yet to weigh in. The Legislative Council's position is that a 1998 constitutional amendment limiting what lawmakers can do to voter-approved referendums or initiatives does not apply to Proposition 301.
The 1998 amendment, dubbed the Voter Protection Act, bars lawmakers from changing referendums or initiatives without a three-quarters vote by lawmakers and unless the change is deemed to be in keeping with the measure's intent.
Michael Braun, director of the Legislative Council, said his office has received numerous inquiries on Proposition 301's status under the Voter Protection Act. He declined to identify the lawmakers or legislative aides who made the requests.
Chris Thomas, general counsel to ASBA, said the statewide group disagrees with the Legislative Council and contends Proposition 301 was a referendum.
He said that because it was not an initiative put on the ballot by petition drive, it must have been a referendum because the Constitution makes no other provision for ballot measures.
ASBA is afraid that without protected status, Proposition 301 and the extra funding it provides to public schools will be fair game to lawmakers, Thomas said.
"I think there's a public relations problem if they do go after it," he said. "We've been operating under the assumption that we sold this to our people that these were five items that couldn't readily be changed."
Already, a bill to phase out over nine years a taxation exemption for school districts' utility costs violates a Proposition 301 provision to wait until 2009 to eliminate the exemption, Thomas said.
There is also talk of a legislative proposal to take some special-education funding from a school inflation adjustment required under Proposition 301, Thomas said. "If this becomes the norm, we're going to deal with this every year."
Senate Education Chairman Ken Bennett, R-Prescott, has sponsored one of several bills to phase out the so-called "excess utility costs" exemption opposed by a business-backed tax lobby.
He said there is disagreement among people who negotiated Proposition 301 on whether the exemption was to be eliminated outright in 2009 or gradually phased out over years leading up to 2009.
He said he does not believe his bill violates the Voter Protection Act and that the protections do apply to Proposition 301.
If lawmakers were to take the position that the Voter Protection Act does not apply to Proposition 301, voters would "rip our throats out," he said.
At the same time, Bennett said, he and others believe the companion bill which spelled out accountability provisions for Proposition 301 also should enjoy "near protected status," though the bill itself was not the ballot.
Those provisions include collecting new data on school enrollments, giving principals new leeway and setting standards for schools to meet or face state intervention.
Without the accountability provisions, "you wouldn't have been able to put 301 to the voters," Bennett said.
