The trial for Higley Unified School District’s ex-superintendent on charges related to alleged contract rigging and taking payoffs has been rescheduled to Dec. 13 from Sept. 8 after defense attorneys last week argued to remand the case to the grand jury.
Dr. Angela Denise Birdwell, who left the district in 2015 after six years at the helm and took the same position at Scottsdale Unified, faces 18 felony counts, including conflict of interest, procurement fraud and misuse of public funds over the construction of two district middle schools.
The state grand jury in July 2021 also indicted co-conspirators Gary Aller and Steven Nielsen, both former Arizona State University employees, and attorney Kay Hartwell Hunnicutt, who each have three charges.
The attorneys during oral arguments Sept. 6 before Judge Adam Driggs claimed that the state presented tainted information to the grand jury.
Hartwell Hunnicutt, a longtime lawyer with no complaints, was not involved in the decision making over the building of the Sossaman and Cooley campuses but was dragged into the case because she shared a joint bank account with Birdwell, a close friend, argued attorney Rhonda Neff.
Hartwell Hunnicutt’s three charges relate to filing false tax returns for not reporting the school vendors’ payments.
Neff said the joint account was set up so that Birdwell could withdraw money and pay the bills to maintain Hartwell Hunnicutt’s property as she was dealing with medical issues.
She added that the state disregarded bank statements and information that Birdwell was Hartwell Hunnicutt’s caretaker.
“The state tried to make it seem there was a love relationship between the two, which is false,” said Neff, who added that since then, the state has backed away from that claim.
“The state said the only money in the account was from Hunt and Caraway but it’s not true. The state picked isolated things to make it as nefarious as it could to indict my client.”
The state alleged that the joint account was a conduit for funneling payoffs from architectural firm Hunt and Caraway or its former president, Brian Robichaux, who died in 2020.
Hunt and Caraway received more than $6 million from HUSD for services often at Birdwell’s recommendation or approval, the state claimed.
According to investigators, Birdwell received $100,000 from Hunt and Caraway and $3,000 from Robichaux. Birdwell also received $2,500 from CORE Construction, another HUSD vendor that was part of the development team for the company formed by Aller and Nielsen.
Hartwell Hunnicutt received $520,260 from Hunt and Caraway and only $191,362 of it was supported by contracts and invoices, according to the state.
Neff said the state delayed the case so long that Robichaux died and can’t confirm that her client worked for Hunt and Caraway as a consultant on contract, receiving the $500,000 over a seven-year period.
Attorneys also disputed the state’s allegations that Aller and Nielsen received information from Birdwell and Robichaux, which gave their company a leg up in 2012 when it bid for and was awarded a $2.5 million project development services contract by HUSD.
Birdwell was one of three on the selection committee and in her evaluation of Aller and Nielsen’s bid, she gave it the only perfect score and recommended Higley award the contract to them, which the governing board approved in July 2012, according to the state.
The attorneys argued that the Arizona law that prohibits people who had input in the request for proposal process on a project from bidding on it didn’t take effect until 2015, which means Aller and Nielsen didn’t violate any law.
Attorney Stephen Dichter said Aller and Nielsen, who were never officially procurement advisors could give input until 2015 because the law didn’t exist in 2012.
“After 2015 it changes what we did. It would have disqualified us (from bidding),” he said. “In the 2012 timeframe they did what they were entitled to do.”
“Send it back,” Dichter said. “It will never again see the light of day. The state got it wrong. There’s just no crime here.”
State Assistant Attorney General Mary Harriss, said the community may have benefited from the two new schools but the procurement process was unfair.
Aller and Nielsen had input in the specifications of the bid and based on their specifications, they were awarded the contract, she said, adding that Birdwell knew that they had inside information.
The state also claimed that Birdwell, Aller and Nielsen signed HUSD documents falsely certifying that they followed the district’s procurement rules for the project.
“I don’t believe a remand is appropriate at this time,” Harriss said.
Driggs said he would take the matter under advisement and issue a ruling as soon as he is able.
When Birdwell executed the lease agreements for the two middle schools, it put the district in a financial bind that continues today. At the time the district was experiencing rapid student enrollment and was near its bond limit to fund the two new schools on its own.
The total cost of the two leases over their lifetime to the district is nearly $160 million. Each year, HUSD directs $4.4 million of its capital funding to the two payments and has paid to date approximately $44 million.
The district in November 2021 went to the voters with a $95-million bond, which included using some of the funds to pay off one of the leases, which helped lead to its defeat.
HUSD has removed the leases from a $77.2 million bond on this November’s ballot.