NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

PEORIA UNIFIED SCHOOL DISTRICT, a political subdivision of the 

state, Petitioner,

v.

THE HONORABLE CRANE MCCLENNEN, Judge of the SUPERIOR 

COURT OF THE STATE OF ARIZONA, in and for the County of 

MARICOPA, Respondent Judge,

TIMOTHY MCKEE, a single man, Real Party in Interest.

No. 1 CA-SA 13-0263

Petition for Special Action from the Superior Court in Maricopa County

No. LC2011-000006

The Honorable Crane McClennen, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED
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COUNSEL

Lewis Roca Rothgerber, LLP, Phoenix

By Mary Ellen Simonson, Kimberly A. Demarchi

DeConcini McDonald Yetwin & Lacy, PC, Tucson

By Denise M. Bainton

Co-Counsel for Petitioner

Law Offices of William R. Hobson, Chandler

By William R. Hobson

Law Offices of Kevin Koelbel, PC, Chandler

By Kevin Koelbel, Kyle J. Shelton

Co-Counsel for Real Party in Interest

By Christopher P. Thomas, Phoenix

Counsel for Arizona School Boards Association

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Maurice Portley and Judge John C. Gemmill joined.

C A T T A N I, Judge:

¶1 Peoria Unified School District seeks special action review of 

the superior court’s decision that the District’s Governing Board

improperly terminated Timothy McKee’s employment after a student in 

McKee’s physical education (“P.E.”) class drowned. The Board acted after 

finding that McKee failed to exercise appropriate professional judgment 

when he allowed a student with limited swimming skills to be in a crowded 

pool during a free-swim period in which the student was not constantly 

observed. The District argues that the superior court failed to give the 

Board’s decision the deference owed under Arizona Revised Statutes

(“A.R.S.”) §§ 41-783(F) and 15-543(B). The District further argues that the 

court erred by holding that the Board’s findings were not supported by 

substantial evidence and that the Board incorrectly and arbitrarily applied 

the law. For reasons that follow, we accept special action jurisdiction and 

grant relief by reversing the superior court’s decision and remanding with 
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instructions that the superior court enter judgment affirming McKee’s 

dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 McKee taught an Advanced P.E. class at Ironwood High 

School during the 2009–10 school year. The class included a swimming unit

at the high school pool, with formal instruction, along with “free swim” 

time. Students who were not proficient swimmers or who preferred a 

different activity were not required to participate in the swimming unit.

¶3 On May 12, 2010, a student with limited swimming skills told 

McKee that he wanted to participate in the swimming class even though he 

was not a good swimmer. After the structured instruction concluded, 

McKee permitted the student to stay for the free swim portion of the class, 

but directed him to remain in the shallow end of the pool. The student went 

in the pool, and while standing in the shallow end, asked McKee for a 

kickboard. McKee left the pool area to look for a kickboard in a nearby 

storage room, briefly leaving the pool unsupervised.

¶4 While McKee was looking for a kickboard, a second teacher 

arrived at the pool area with his P.E. class. McKee told the other teacher he 

was looking for a kickboard, but he did not mention there was a student in 

the pool with limited swimming skills.

¶5 After returning and telling the student he could not find a 

kickboard, McKee walked to a ramada area 11 to 13 feet from the edge of 

the pool and sat down in a chair next to the other teacher. They talked while 

watching the pool area, but McKee did not tell the other teacher about the 

student with limited swimming abilities. From his seated position, McKee 

was not able to see the bottom of the deep end of the pool or the bottom of 

the lane closest to him in the shallow end.

¶6 While McKee was seated, another student in the class noticed 

the student with limited swimming skills at the bottom of the pool in the 

deep end and called for help. McKee and the other teacher provided 

medical attention, as did paramedics who were called to the scene. The 

student was taken to the hospital, but died shortly thereafter.

¶7 The District’s human resources director conducted an 

investigation of the drowning incident and determined that the District had 

cause to terminate McKee’s employment, and District administrators 

thereafter prepared a Statement of Charges to initiate the statutory 

termination process under A.R.S. § 15-501 et seq. McKee requested a 
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hearing, and a hearing officer appointed by the Board conducted a threeday evidentiary hearing beginning on October 4, 2010.

¶8 After considering the evidence presented, the hearing officer 

found that the student had drowned during a less-than two minute period 

after McKee told him he could not find a kickboard, walked from the 

shallow end and sat down next to the other teacher near the deep end of the 

pool. The hearing officer recommended that the Board dismiss the 

Statement of Charges, concluding that the District had not sustained its 

burden of showing that McKee engaged in unprofessional conduct or that 

there was cause to support his dismissal.

¶9 The Board reviewed the hearing officer’s recommendation 

and held a lengthy public meeting at which it heard argument from both 

the District Administration and McKee regarding whether to adopt, reject, 

or modify the hearing officer’s recommendation. Following the hearing, 

the Board concluded that McKee had failed to exercise appropriate 

professional judgment by allowing a student with limited swimming skills 

to be in a crowded pool outside McKee’s view. The Board thus rejected the 

hearing officer’s recommendation and terminated McKee’s employment.

¶10 McKee appealed the Board’s ruling to the Maricopa County 

Superior Court, which reversed, finding that “the Board’s actions were 

contrary to law, arbitrary and capricious, and an abuse of discretion.” The 

District seeks special action relief from that ruling.

JURISDICTION

¶11 Special action jurisdiction is discretionary and is generally 

appropriate only when no equally plain, speedy and adequate remedy is 

available by appeal. Ariz. R.P. Sec. Act. 1(a). In Anderson v. Valley Union 

High School, 229 Ariz. 52, 59, ¶ 21, 270 P.3d 879, 886 (App. 2012), this Court 

held that, under A.R.S. § 15-543, there is no right to appeal beyond the 

superior court in a Teacher Tenure Act disciplinary action. The District thus 

lacks any remedy by appeal, and in the exercise of our discretion, we accept 

special action jurisdiction.

DISCUSSION

¶12 The District argues that (1) the superior court acted in excess 

of its jurisdiction because McKee’s appeal from the Board’s decision was 

filed after the 30-day jurisdictional deadline, (2) the superior court erred by 

vacating a decision by the Board that was supported by substantial 

evidence, and (3) the superior court erred by finding that the Board violated 
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McKee’s right to due process and otherwise treated him unfairly. We 

address each issue in turn.

I. McKee Timely Appealed the Board’s Ruling.

¶13 The District asserts that McKee’s appeal to the superior court 

was untimely and thus jurisdictionally barred, because it was filed 31 days 

after the Board’s decision, rather than within 30 days, as required by A.R.S. 

§ 15-543. But McKee filed his appeal within 30 days, albeit with an incorrect 

cover sheet. Although a court clerk rejected the filing, we conclude that the 

wrong cover sheet was a technical defect at most, and that the otherwise 

compliant complaint was thus constructively filed when initially delivered 

to the Clerk. See Whittaker Corp. v. Estate of King, 25 Ariz. App. 356, 357, 543 

P.2d 477, 478 (1975) (holding that the plaintiff had constructively filed its 

complaint, even though a court clerk rejected it because of an incomplete 

caption); Rowland v. Kellogg Brown & Root, Inc., 210 Ariz. 530, 532-34, ¶¶ 4, 

10, 16, 115 P.3d 124, 126-28 (App. 2005) (finding that a technically deficient 

complaint satisfied the notice pleading requirement and was constructively 

filed, notwithstanding its rejection by the court clerk).1

II. The Board’s Ruling Was Supported by Substantial Evidence.

¶14 Pursuant to A.R.S. § 15-539(D), a governing board may 

terminate a teacher’s employment based on unprofessional conduct. 

Unprofessional conduct can include violations of statutes, rules, or 

objectives of the governing board. Id. It can also include teacher conduct 

that breaches the duties owed to students under the teacher’s care. See 

Roberts v. Santa Cruz Valley Unified Sch. Dist. No. 35, 161 Ariz. 398, 778 P.2d 

1294 (App. 1989); see generally Rouse v. Scottsdale Unified Sch. Dist. No. 48, 156 

Ariz. 369, 752 P.2d 22 (App. 1987). Good cause for dismissal includes “a 

cause which bears a reasonable relationship to a teacher’s unfitness to 

discharge the duties assigned or is in a reasonable sense detrimental to the 

students.” Bd. of Educ. of Tempe Union High Sch. Dist. v. Lammle, 122 Ariz. 

522, 526, 596 P.2d 48, 52 (App. 1979).

¶15 A.R.S. § 15-541(A) provides that a governing board may 

designate a hearing officer agreed to by the parties to conduct a hearing 

regarding proposed actions to dismiss or suspend a teacher. After

 

1 In light of our ruling that the complaint was constructively filed 

within the limitations period, we do not address McKee’s alternative 

argument that the complaint was not due until 30 days from the date the 

Board adopted the written decision on which it now relies.
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conducting a hearing, the hearing officer must make a written 

recommendation to the governing board that includes findings of fact and 

conclusions. Id. Parties to the hearing have the right to object to the 

findings of the hearing officer and present oral and written arguments to 

the governing board, which is ultimately responsible for accepting or 

rejecting the hearing officer’s recommendation. Id.; A.R.S. § 15-541(B).

¶16 Under A.R.S. § 15-543(B) and A.R.S. § 41-783(F), the superior 

court may review a governing board’s decision to determine whether the 

decision was: (1) founded on or contained an error of law, including error 

of construction or application of any pertinent rules, (2) unsupported by 

any evidence as disclosed by the entire record, (3) materially affected by 

unlawful procedure, (4) based on a violation of any constitutional 

provision, or (5) arbitrary or capricious. This court reviews de novo a 

superior court’s appellate decision. See Ariz. Comm. Diving Servs., Inc. v. 

Applied Diving Servs., Inc., 212 Ariz. 208, 211, ¶ 7, 129 P.3d 497, 500 (App. 

2006).

¶17 In reviewing the board’s decision regarding the basis for the 

termination, “the superior court . . . has a limited appellate role; it does not 

conduct a review ‘de novo’ as it once did in such matters.” Anderson, 229 

Ariz. at 56, ¶ 10, 270 P.3d at 883. Instead, the reviewing court’s scope of 

review is “very limited,” and the board’s decision must be upheld “unless 

the decision sought to be reviewed lacks any reasonable evidence to 

support it.” Johns v. Ariz. Dep’t of Econ. Sec., 169 Ariz. 75, 78, 817 P.2d 20, 23

(App. 1991). Thus, the superior court (and this Court on de novo review) 

should not substitute its judgment for the board’s absent a clear abuse of 

discretion. Id. at 81, 817 P.2d at 26.

¶18 Here, there was substantial evidence supporting the Board’s 

findings. Several witnesses from the education field testified regarding the 

common sense notion that having a student with limited swimming skills

in a P.E. class requires heightened vigilance, which supports the Board’s 

conclusion that allowing the student to be in the pool without providing 

constant supervision constituted unprofessional conduct. Although McKee 

points to the hearing officer’s conclusion that the student’s drowning was 

a tragic event that happened too quickly to prevent, that conclusion was 

based on what could or could not have been done after the student was 

allowed to go in the water. In contrast, the Board focused on McKee’s

conduct in failing to prevent the dangerous situation in the first place. 

Although the hearing officer’s conclusion was reasonable, the contrary 

position adopted by the Board was also reasonable. Accordingly, the 

Board’s decision must be upheld. See Welch v. Bd. of Educ. of Chandler Unified 
PUSD v. HON. MCCLENNEN/MCKEE

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Sch. Dist. No. 80, 136 Ariz. 552, 555, 667 P.2d 746, 749 (App. 1983) (“Were we 

in the position of the school board, we might have decided to reinstate [the 

plaintiff]. However, this is not our role.”).

III. McKee Did Not Establish that the Board Denied Him Due Process 

or Otherwise Treated Him Unfairly.

¶19 McKee argues that (A) he was denied due process because (1) 

the Board was not an impartial tribunal, (2) the Statement of Charges did 

not provide adequate notice, and (3) the Board did not provide a written 

statement identifying the evidence upon which it relied or the reasons for 

its decisions. McKee also argues that (B) the dismissal process violated 

A.R.S. §§ 15-539 and 15-541, and (C) he was held to a standard not 

recognized in Arizona, and he was subjected to disparate treatment.

Due Process

¶20 The Teacher Tenure Act enumerates certain procedures to 

ensure that a termination hearing comports with the notice and opportunity 

to be heard required by principles of due process. See, e.g., A.R.S. § 15-539

(providing for notice to teacher, statement of charges specifying conduct 

charged and rules violated, and the right to a hearing); A.R.S. § 15-541

(detailing hearing process, including the right to counsel, an official record, 

and argument before the governing board). In applying these statutory 

provisions, a governing board, acting as adjudicator in this context, is 

presumed to be fair, and the party challenging the action bears the burden 

to rebut this presumption. Pavlik v. Chinle Unified Sch. Dist. No. 24, 195 Ariz. 

148, 152, ¶ 11, 985 P.2d 633, 637 (App. 1999).

¶21 Case law summarizes the statutory and due process 

protections in teacher termination cases as requiring the following:

1. Adequate written notice of the specific grounds for 

termination.

2. Disclosure of the evidence supporting termination, 

including the names and nature of the testimony of adverse 

witnesses.

3. The opportunity to confront and cross-examine available 

adverse witnesses.

4. The opportunity to be heard in person and to present 

evidence.
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5. The opportunity to be represented by counsel.

6. A fair-minded and impartial decision maker.

7. A written statement by the fact-finders as to the evidence 

relied upon and the reasons for the determination made.

Deuel v. Ariz. State Sch. for the Deaf & Blind, 165 Ariz. 524, 527, 799 P.2d 865, 

868 (App. 1990) (citations omitted).

1. Board Bias

¶22 McKee asserts that the Board was not impartial because the 

District Administration’s “prosecuting” attorney was also the attorney for 

the Board. But when McKee requested a hearing, separate counsel was 

retained to advise the Board, and the attorney in question was representing 

only the Administration during the disciplinary proceedings.

¶23 Although McKee notes that it would be improper for a 

prosecutor to represent a judge in a criminal case, then represent the 

prosecuting agency in the same case, the comparison is inapt. Teacher 

disciplinary proceedings are the product of a statutory scheme, see A.R.S. 

§§ 15-539 to -542, that specifically contemplates entrusting both the 

investigative and adjudicative functions to a single entity—the school 

district, and this Court has rejected due process challenges to such a 

procedure notwithstanding the Board’s resulting “dual” role. See Rouse, 156 

Ariz. at 374, 752 P.2d at 27 (finding that statutory scheme for teacher 

discipline does not result in a due process violation absent a showing of 

actual bias or partiality).

¶24 Based on Rouse, McKee’s argument regarding the attorney’s 

role in representing the Administration fails. By retaining separate counsel 

to represent it in its adjudicative capacity, the Board maintained the 

appropriate separation from counsel representing the Administration, and 

counsel’s continued representation of the Administration did not provide a 

basis for setting aside McKee’s dismissal.

¶25 McKee also alleges that the attorney’s representation of the 

Administration was improper and demonstrated Board bias because the 

attorney was simultaneously representing the District (including the Board) 
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in a whistleblower proceeding McKee initiated against the District.2

Although there may be reasons for the Board to retain different counsel in 

these types of proceedings, such a procedure was not required here because 

McKee’s whistleblower allegations were made against the District, which is 

a different entity than the Board acting in its adjudicative capacity.

¶26 McKee also asserts that the Board predetermined the case. He 

bases this assertion on the fact that during the District’s defense to McKee’s 

whistleblower action, counsel for the District stated that McKee “was 

already well aware that he was going to be terminated” at the time he filed 

his notice of claim on August 17, 2010. McKee posits that this statement 

showed that the decision to terminate his employment was made prior to 

the Board’s meeting. But counsel’s statement addressed McKee’s 

motivation for filing the whistleblower action and was simply referring to 

the fact that McKee made his whistleblower allegations after district 

administrators began preparing the Statement of Charges. The preparation 

of a Statement of Charges is a necessary prerequisite to the process that 

leads to a hearing and does not establish that the Board has already made a 

decision.

¶27 McKee also argues bias based on the District’s position 

against him in the whistleblower proceedings and on the District’s 

pecuniary interest in the outcome of the termination case. But McKee 

initiated the whistleblower case against the District, and his decision to 

litigate against the District did not preclude the Board from acting on the 

Statement of Charges in the termination case. See In re Ronwin, 139 Ariz. 

576, 586, 680 P.2d 107, 117 (1983) (holding that the fact that all Arizona 

Supreme Court judges had been sued by the petitioner in connection with

his prior denial of admission to practice law did not require recusal in 

subsequent litigation seeking admission to the Arizona Bar). And McKee’s 

assertion that the District would potentially be liable for his salary and 

attorneys’ fees if the Board decided not to dismiss him does not overcome 

the presumption of impartiality because McKee’s assertion is too 

speculative absent evidence as to the significance of the fees “in light of the 

entity’s entire budget.” See Pavlik, 195 Ariz. at 154, ¶¶ 22–24, 985 P.2d at 

639; see also id. at 154–55, ¶¶ 25–26, 985 P.2d at 154–55 (recounting statutory 

safeguards to ensure a fair decision by the governing board).

 

2 McKee alleged that the District was not in compliance with an intergovernmental agreement and County Regulations requiring the District to 

provide lifeguards at its pool.
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¶28 McKee alleges that the Board did not adopt relevant policies 

until after the hearing, and never identified a policy, statute or regulation

he violated. But even absent a specific policy, testimony at the hearing 

supported the Board’s conclusion that a student with limited swimming 

skills requires heightened supervision, and that a teacher violates his duties 

as a professional by not adequately protecting the students in his class.

¶29 McKee also alleges that the Board did not review the entire 

record and relied on extra-record evidence. Although McKee asserts that 

the Board was only given binders that contained documents “cherrypicked” by the Administration, there is no evidence that the entire record 

was not available to the Board. Nor is there evidence that McKee was 

prevented from presenting information to the Board or from explaining the

significance of information that may or may not have been in the binders. 

In any event, due process in this context requires a fair hearing, but does 

not necessarily require that each Board member personally review every 

item in the record. See Fulton v. Dysart Unified Sch. Dist. No. 89, 133 Ariz. 

314, 320–21, 651 P.2d 369, 375–76 (App. 1982) (rejecting assertion that “the 

Board’s decision without personally reviewing the testimony heard by the 

commission violated [the plaintiff’s] due process rights,” and citing to

Morgan v. U.S., 298 U.S. 468, 481 (1936) (observing that although due 

process requires “a hearing in a substantial sense,” “[e]vidence may be 

taken by an examiner” and “[e]vidence thus taken may be sifted and 

analyzed by competent subordinates.”)).

¶30 McKee’s extra-record allegation is based on the fact that one 

Board member independently visited the pool prior to the hearing. While 

such extra-record investigation is generally improper, here there was no 

dispute regarding the physical characteristics of the pool and the 

surrounding area. McKee did not dispute that he and the other teacher 

watching the pool could not see the bottom of the pool from where they 

were sitting, and thus, the Board member’s observation of the pool and the 

pool area did not materially affect the Board’s decision and does not 

provide a basis for relief. See A.R.S. § 41-783(F) (specifying grounds for 

overturning an agency decision, including a showing that the decision was 

“[m]aterially affected by unlawful procedure”).

¶31 Finally, McKee alleges that another Board member based her 

decision on matters outside the scope of the Statement of Charges because 

the Board member stated that she considered whether she would entrust 

McKee with the supervision of her own child. The Board member’s 

statement was not, however, improper or based on extra-record 

information; instead the statement simply applied one of the standards 
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considered by the Board—whether McKee’s professional judgment 

regarding student safety was deficient.

2. Adequacy of Statement of Charges

¶32 McKee argues that the Statement of Charges did not provide 

sufficient notice of the charges against him because the District relied on 

evidence beyond that included in or attached to the Statement of Charges. 

McKee further argues that the District failed to timely disclose witnesses 

and evidence by “dribbling out” its evidence until the day before the 

hearing.

¶33 Under A.R.S. § 15-539(D), a statement of charges must 

“specify instances of behavior and the acts or omissions constituting the 

charge so that the certificated teacher will be able to prepare a defense,” and 

must detail “the facts relevant to each occasion of alleged unprofessional 

conduct.” Here, the Statement of Charges set forth the circumstances 

underlying the student’s drowning and stated facts that, if true, supported 

McKee’s dismissal as a teacher. The Statement of Charges adequately 

advised McKee of the charges against him and led to a hearing at which the 

Administration was required to prove up the asserted facts with evidence.

¶34 McKee’s complaints regarding disclosure of witnesses and 

evidence is similarly unavailing. His argument focuses primarily on his 

assertion that, in complying with a request for information, District 

administrators withheld portions of the human resources investigator’s 

interview notes. McKee sought the District’s investigative file through a 

public records request filed August 24, 2010 (four days after the Board

adopted the Statement of Charges). On September 16, 2010 (after McKee 

had filed a public records lawsuit), the Administration produced notes for 

9 of the 14 interviews. On October 1 and 2, the Administration provided 

notes from two other interviews, and on October 3, provided notes from the 

final three interviews. McKee’s hearing began on Monday, October 4.

¶35 The Administration’s disclosure satisfied the District’s due 

process obligation to disclose the “names and nature of the testimony of 

adverse witnesses.” See Deuel, 165 Ariz. at 527, 799 P.2d at 868. The 

Administration’s witness and exhibit list, filed October 1, included three 

witnesses to the drowning (McKee, the other teacher at the pool on the day 

of the drowning, and a student who was also present) whose fairly 

substantial interviews in the police investigation were included as 

attachments to the Statement of Charges. Additionally, the 
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Administration’s exhibit list, disclosed on October 2, included a portion of 

the human resources investigator’s notes.

¶36 Even assuming McKee did not obtain documents from the 

District when he wanted them or within deadlines required for disclosure 

under a public records request, he has not established a due process 

violation warranting setting aside the Board’s ruling. McKee had notice of 

the charges and the evidence against him, and he was able to successfully 

present his case to the hearing officer—who recommended against 

terminating McKee’s employment. Although the Board rejected the 

hearing officer’s recommendation, it did not do so based on facts of which 

McKee was unaware. Instead the Board’s decision was based on its view 

that the assessment of McKee’s professionalism turned not on what 

happened after the student started to drown, but rather on McKee’s 

decision to allow the student to be in the pool without heightened 

supervision. Thus, McKee has not established that the alleged due process 

violations affected the Board’s decision. See A.R.S. § 41-783(F).

3. Adequacy of Board’s Findings

¶37 McKee asserts that the Board failed to provide or serve “a 

written statement by the fact-finders as to the evidence relied upon and the 

reasons for the determination made.” See Deuel, 165 Ariz. at 527, 799 P.2d 

at 868. But the Board provided a detailed chart articulating its findings of 

fact and conclusions of law, with citations to the record for each finding of 

fact and conclusion of law.

¶38 The Board was not required to provide a written, signed 

judgment. A.R.S. § 15-543(B) does not require any particular type of ruling, 

and instead provides only that “[t]he decision of the governing board may 

be reviewed by the court in the same manner as the decision made in 

accordance with § 41-785.” Here, the Board’s decision, which was 

announced in a public meeting and subsequently confirmed in writing, was 

adequate to provide a basis for judicial review under § 41-785.

McKee’s Dismissal Did Not Violate A.R.S. § 15-539 or § 15-

541

¶39 McKee argues that under A.R.S. § 15-539(C), he was entitled

to preliminary notice of “inadequate classroom performance” and an

opportunity to correct the performance. But the Teacher Tenure Act 

acknowledges that not all teacher conduct, even inside a classroom, 

constitutes inadequate classroom performance, since the statute 

“specifically designates ‘unprofessional conduct’ as an alternative to 
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‘incompetency’ as a basis for dismissal.” DeFries v. Sch. Dist. No. 13 of 

Cochise Cnty., 116 Ariz. 83, 86–87, 567 P.2d 1212, 1215–16 (App. 1977); see 

also A.R.S. § 15-539(D). Here, the Board’s decision was based on McKee’s 

failure to conform to standards of professional conduct, rather than on 

inadequate classroom performance of the type a teacher should be given an 

opportunity to cure. See Wheeler v. Yuma Sch. Dist. No. 1, 156 Ariz. 102, 107, 

750 P.2d 860, 867 (1988).

¶40 McKee also argues that the District failed to attach copies of 

relevant statutes to the Statement of Charges, as required by A.R.S. § 15-

539(F). But McKee does not suggest that he and his counsel were unaware 

of the relevant statutes, and his counsel in fact cited the substance of the 

relevant statutes throughout the proceedings. Thus, the failure to attach 

copies of relevant statutes to the Statement of Charges had no bearing on 

the Board’s ruling.

¶41 McKee further argues that he was not properly “served” with 

the Statement of Charges because it was not served by a process server or 

by registered or certified mail. But McKee does not dispute that a District 

administrator personally gave him and his attorney copies of the Statement 

of Charges. And he does not assert any prejudice resulting from the method 

of service or from his related claim regarding the timing of the hearing. 

Thus, he is not entitled to relief. See A.R.S. § 41-783(F).

McKee Was Not Held To a Standard Unrecognized in 

Arizona and He Was Not Subjected to Disparate Treatment

¶42 McKee argues that he supervised the pool in the same manner 

as every other P.E. teacher in the district, including the teacher who was 

with him at the pool and who was responsible for watching the deep end 

at the time the student drowned. The Board’s decision was based, however, 

on McKee’s decision to allow a student with limited swimming skills to go 

in the water without heightened supervision. No other teacher was 

demonstrated to have knowingly allowed a limited-skills swimmer in the 

pool without providing a heightened level of supervision. Thus, McKee 

did not establish that he was subjected to disparate treatment.

CONCLUSION

¶43 Although there are facts in the record that support the hearing 

officer’s recommendation not to terminate McKee’s employment, there are 

also facts supporting the Board’s decision to reject that recommendation. 

In light of the Board’s statutory responsibility to make these types of 

determinations, the superior court should have deferred to the Board’s 
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decision. Accordingly, we accept special action jurisdiction and grant relief 

by reversing the superior court’s decision and remanding with instructions 

that the superior court enter judgment affirming McKee’s dismissal.