Attorney defends Ybarra documents — but says they aren’t ‘proof of the truth’

State superintendent Sherri Ybarra “is not attempting to prove the truth” by providing the Idaho Supreme Court notes from her conversations with lawmakers during the 2020 legislative session.

Instead, Ybarra’s attorney says the superintendent is trying to lay the foundation for her argument that lawmakers moved quickly to strip 18 jobs and $2.7 million from her State Department of Education, as a form of political payback.

“They are not offered for proof of the truth,” David Leroy, Ybarra’s attorney, wrote in an Idaho Supreme Court filing Monday.

At issue — in this ongoing courtroom conflict between Ybarra, the Legislature and the State Board of Education — are May 22 filings from Leroy. The filings included detailed timelines from Ybarra and her legislative liaison, Marilyn Whitney. Ybarra and Whitney chronicled weeks of conversations with lawmakers and state officials — meetings that suggested lawmakers want to defund Ybarra’s SDE, or eliminate the elected superintendent of public instruction’s post entirely. (Idaho Education News took an in-depth look at these filings in a story Thursday.)

On Thursday, the Legislature requested that the Supreme Court strike the narratives from Ybarra and Whitney. “Both exhibits are replete with hearsay, often including hearsay within hearsay,” wrote William G. Myers III, the Boise attorney hired to represent the Legislature.

In his Monday filing, Leroy argued that the narratives should remain in the court record.

The Supreme Court will hear arguments in the case Friday morning. Since the 18 jobs and $2.7 million would be transferred from the SDE to the State Board on July 1, the Supreme Court is likely to rule on the dispute sometime in June.

About that Ybarra-Ellsworth conversation … 

Leroy’s Monday filing also includes a clarification, at the behest of State Treasurer Julie Ellsworth.

The clarification addresses an April 2 phone conversation between Ybarra and Ellsworth, detailed in Ybarra’s chronology.

Two key points from Monday’s filing:

  • Ellsworth makes clear that Ybarra called Ellsworth. The May 22 filing doesn’t say who called whom, but says that Ellsworth “had wanted to connect” with Ybarra to discuss rumors her staff had heard during the 2020 session.
  • Ellsworth says she had “no knowledge” of specific state superintendent’s duties, or plans to strip them from Ybarra.

To compare and contrast, here are the May 22 and Monday statements, in full:

May 22 statement: “The superintendent had a phone conversation with Treasurer Julie Ellsworth. She relayed that she had wanted to connect with the superintendent during the session after her staff overhead (sic) Sen. (Carl) Crabtree and Rep. (Wendy) Horman ‘hatching a plan’ to strip the superintendent of her constitutional authority. They acknowledged that they knew putting a constitutional amendment on the ballot to move the Superintendent of Public Instruction to an appointed position wouldn’t be successful in an election year. They said they would instead do it via a work around. They would start by moving technology services and then move to assessment and accountability and would take something every year until the superintendent’s office no longer existed.”

Monday statement: “Superintendent Sherri Ybarra called Treasurer Ellsworth to give her a heads up that she was likely to file a lawsuit. Ellsworth was sympathetic to her plight and suggested a possible alternative to avoid the lawsuit. Ellsworth mentioned that the COVID-19 pandemic made the IT function in her office very critical and Ybarra might want to check and see if CARES dollars (dollars from the federal coronavirus stimulus law) might be a potential source of funding. Ellsworth discussed the fact that if you have a constitutional duty to perform and no funding is provided, you still need to carry out that duty. Ellsworth acknowledged that rumors had been circulating during the legislative session about making the superintendent an appointed position rather than an elected constitutional officer. Ellsworth has no knowledge of specific superintendent duties and whether there was a plan to strip them from Ybarra. Ellsworth was not aware of the source of the rumors.”

Kevin Richert

Kevin Richert

Senior reporter and blogger Kevin Richert specializes in education politics and education policy. He has more than 30 years of experience in Idaho journalism. He is a frequent guest on "Idaho Reports" on Idaho Public Television and "Idaho Matters" on Boise State Public Radio. Follow Kevin on Twitter: @KevinRichert. He can be reached at [email protected]

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