PHOENIX -- Proponents of Proposition 122 insist a potentially far-reaching amendment to the Arizona Constitution is necessary to ensure the public gets to monitor how well -- or poorly -- Arizona does in protecting children.
Postcards being paid for and mailed to voters by the Arizona Republican Party declare that "an unconstitutional federal law'' forces Child Protective Services -- which technically no longer exists -- "to hide botched investigations of abused kids.'' It features a photo of a young girl with a bruise on her arm crouching in the corner with her teddy bear.
The measure on the November ballot would allow the Legislature -- or voters -- to declare that the new Department of Child Safety will not follow the federal Child Abuse Prevention and Treatment Act which includes provisions about what can and cannot be publicly released.
But it may not be necessary to amend the state constitution to do that.
"We could get out of CAPTA now if we reject the federal funds,'' said Dana Naimark, president of the Children's Action Alliance. Naimark, whose organization has taken no position on Prop 122, said she objects to proponents of the ballot measure using child-abuse issues to gain support, calling it a "distraction.''
Rep. Kate Brophy McGee, R-Phoenix, who has been at the forefront of demanding more transparency at DCS, supports Proposition 122. But she acknowledged the problem may not be with CAPTA, the federal law which the ballot measure would let legislators decide they don't want to enforce here -- and the one the mailer claims without backup is "unconstitutional.'' In fact, she said CAPTA specifically mandates disclosure of information in cases of deaths or near-fatal cases of abuse.
The big problem, she said, is how the state attorneys assigned to the child-welfare agency have chosen to read the federal law -- and to use it as a shield to reject requests for public records.
"They interpret CAPTA so broadly as to make it shut down the access to and flow of information, as opposed to do what CAPTA was intended, which is to facilitate the sharing of information in the case of the death or the near-death of a child,'' Brophy McGee said.
So is Proposition 122 needed to open up records?
"It's another tool in the tool box,'' she said, to ensure the new DCS she helped create -- and the lawyers that advise it -- err on the side of disclosure. "I'm fully prepared to use it.''
In essence, Proposition 122 would permit lawmakers or voters to decide that some federal law or program is not "consistent with the (federal) constitution.'' If that happens, all state and local governments and school districts would be prohibited from using their workers or funds "to enforce, administer or cooperate with the designated federal action or program.''
Where child abuse comes in is with CAPTA.
On one hand, the law which provides federal dollars to states for child-abuse programs specifically allows disclosure of information in instances of abuse that result in a fatality or near fatality. But other information is considered off limits.
More to the point, officials at Child Protective Services for years have cited CAPTA restrictions in rejecting requests for public records.
Brophy McGee said recent amendments to the law on confidentiality were designed to address some of that.
For example, the statute says records have to be maintained as required by federal law. But they also have declared that "all exceptions for the public release of DCS information shall be construed as openly as possible under federal law.''
"Every time we 'fix' (the law), they go right back to where they were and they cite CAPTA,'' Brophy McGee said. And she said that the new DCS is "not doing any better'' than the old CPS at being transparent about its operations -- even after she inserted a provision into the law creating DCS allowing the agency to hire its own attorney who might be willing to approve more disclosure.
That still leaves the question of whether lawmakers need Proposition 122 or can simply alter the existing Arizona law to demand fuller disclosure, regardless of federal law.
Businessman Jack Biltis, who is financing much of the pro-122 campaign, said he doubts that a simple amendment to state law would do much.
"CPS has really just been creating excuses not to disclose anything they didn't want to,'' he said, with the agency claiming the supremacy of the federal law. He said Proposition 122 would solve that by allowing lawmakers, citing the Arizona Constitution, to preclude precluding the DCS from participating in the federal CAPTA program if that is what is keeping records secret.
Biltis acknowledged that part of the decision lawmakers would have to make is whether such a mandate is worth the risk of losing federal dollars.
It's not a lot: Jennifer Bowser Richards, spokeswoman for DCS, put CAPTA aid to Arizona at just $670,000.
Biltis contends there is precedent that Washington cannot take away funds simply because Arizona refuses to follow federal law. That comes from the U.S. Supreme Court ruling two years ago which blocked the Obama administration from cutting off Medicaid dollars to states that refuse to expand their programs as part of the Affordable Care Act.
But that ruling dealt with a new requirement being superimposed on existing Medicaid law. This would involve Arizona trying to unilaterally alter an existing agreement.
Brophy McGee said she doubts there would be a legal fight if Arizona were to say it is going to make more information public, with or without Proposition 122.
"No state has ever lost funds because of CAPTA violations,'' she said.
DCS Director Charles Flanagan declined to be interviewed about the issue.