Eleby v. Asbe

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CALVIN ELEBY, JR., Appellant,

v.

ARIZONA STATE BOARD OF EDUCATION, Appellee.

No. 1 CA-CV 24-0632
FILED 04-17-2025

Appeal from the Superior Court in Maricopa County
No. LC2023-000304-001
The Honorable Joseph P. Mikitish, Judge

AFFIRMED

COUNSEL

Calvin Eleby, Jr., Tucson
Appellant

Arizona Attorney General's Office, Phoenix
By Joseph Cada
Counsel for Appellee
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MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge D. Steven Williams joined.

M O R S E, Judge:

¶1 Calvin Eleby, Jr. appeals the superior court's order affirming
the Arizona State Board of Education's ("Board") decision to suspend his
teaching certificates and bar him from applying for an Interim Principal
License for three years. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 During the 2021-2022 school year, Eleby worked as an
assistant principal in the Baboquivari Unified School District ("BUSD"). In
late 2021, Eleby purchased air fresheners emblazoned with his school's logo
and sold them in a school fundraiser. He paid an initial deposit with his
personal funds but failed to obtain permission for the fundraiser, file the
required paperwork, or remit sale proceeds to the school district. The air-
freshener vendor billed the school district for additional unpaid invoices.
In March 2022, Eleby organized a paid-entry raffle offering valuable prizes
without authorization. And Eleby used his school-district credit card at
unauthorized stores.

¶3 In April 2022, the Board filed a complaint against Eleby
alleging that he: (1) failed to handle fundraising proceeds in accordance
with school-district policies; (2) failed to adhere to Uniform System of
Financial Records ("USFR") guidelines; and (3) engaged in conduct that
discredited the teaching profession.

¶4 In December 2022, Eleby received notice that his disciplinary
hearing before the Professional Practices Advisory Committee ("PPAC")—
a Board Committee tasked with conducting hearings for educators facing
allegations of immoral and/or unprofessional conduct—would take place
in February 2023. The notice specified that hearings were scheduled for two
days each month, and the exact date would depend on the number and
length of cases. Eleby asked the PPAC to move his hearing to March to
allow his counsel to prepare his defense. The PPAC accommodated Eleby's

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request and rescheduled his hearing for March 14 or 15. On the morning of
March 14, the PPAC informed Eleby his hearing would take place the
following day.

¶5 At the hearing, PPAC heard testimony from Dr. Bonn, the
BUSD Superintendent, detailing Eleby's training on financial oversight, the
prior warnings he had received regarding fundraising policies, and his past
violations of these policies. Eleby presented three witnesses who testified
regarding his character and professionalism, and Eleby's direct supervisor
wrote a statement on his behalf. Eleby testified about the alleged
misconduct, admitting to the acts alleged in the complaint but disputing the
wrongfulness of his actions. The PPAC also heard evidence of Eleby's
conviction of felony theft and disbarment from the practice of law.

¶6 The PPAC recommended that the Board bar Eleby from
applying for an Interim Principal Certificate and suspend his active
teaching certificates for three years. The Board adopted the PPAC's
recommendation. Eleby requested a rehearing, which the Board denied.
Eleby then appealed to the superior court seeking a new trial. The superior
court denied his request and issued a final ruling affirming the Board's
decision, finding that substantial evidence—including financial records,
written policies, and testimony from school officials—supported the
Board's findings.

¶7 Eleby timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-913. See Svendsen v. Ariz. Dep't of Transp., Motor Vehicle Div., 234
Ariz. 528, 533, ¶ 13 (App. 2014) (interpreting A.R.S. § 12-913 as permitting
an appeal to this Court).

DISCUSSION

¶8 We review administrative decisions involving regulated
parties for questions of law and fact de novo, without deference to the
agency's findings. Simms v. Simms, ___ Ariz. ___, ___, ___, ¶¶ 33–34, 62,
1 CA-CV 23-0139, 2025 WL 838114, at *6, *11 (Ariz. App. Mar. 18, 2025);
A.R.S. § 12-910(F). When a committee like the PPAC hears testimony and
makes a recommendation adopted by the Board, we defer to the
committee's supported credibility findings and independently evaluate
other factual and legal issues. Simms, ___ Ariz., at ___, ___, ¶¶ 34, 54–55.

I. Notice of Hearing.

¶9 Eleby argues the superior court erred in affirming the Board's
decision because the scheduling of his PPAC hearing violated due process.

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Eleby complains that he did not receive sufficient notice of the hearing
because he was told it would take place on either March 14 or 15. However,
due process only requires "notice and an opportunity to be heard at a
meaningful time and in a meaningful manner." Curtis v. Richardson, 212
Ariz. 308, 312, ¶ 16 (App. 2006); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
"In a contested case, the parties shall be afforded an opportunity for hearing
after reasonable notice[,]" which "shall be given at least 20 days prior to the
date set for the hearing." Ariz. Admin. Code ("A.A.C.") R7-2-703(A); see also
A.R.S. § 41-1067, -1092.02(A)(13)(a) (exempting the Board from Uniform
Administrative Hearing Procedures).

¶10 The record shows that Eleby's hearing was initially scheduled
in December 2022 for a February 2023 hearing and rescheduled for March
2023 at Eleby's request. Additionally, Eleby listed both March dates in his
pre-hearing disclosures filed on March 7.

¶11 Eleby attended the hearing and presented evidence in his
defense. He testified, called three witnesses, and submitted a letter from
his supervisor into evidence. Eleby rested his case, stating he had no
additional witnesses. Only in September 2023—nearly six months after the
PPAC hearing—did Eleby assert that he had additional witnesses who
could have testified on the March 14, but were unavailable on March 15.

¶12 Eleby has not shown that holding his hearing on March 15,
rather than March 14, deprived him of a meaningful opportunity to present
his case. And he should have raised any such argument at the PPAC
hearing by either requesting a continuance or additional time to present any
necessary witnesses. Because Eleby received adequate notice of the hearing
and had an opportunity to be heard, we reject his due-process argument.
Curtis, 212 Ariz. at 312, ¶ 16.

II. Admissibility of Character Evidence.

¶13 Eleby argues that the Board improperly allowed evidence of
his prior felony conviction and disbarment at the hearing. He contends that
his disbarment and convictions should not have been admissible because
they occurred more than 10 years before the PPAC hearing.

¶14 The Arizona Rules of Evidence do not apply in PPAC
hearings and "[i]rrelevant, immaterial or unduly repetitious evidence shall
be excluded." A.A.C. R7-2-705(C). Eleby argues that his prior convictions
and disbarment were irrelevant and, thus, inadmissible under the Arizona
Administrative Code. He then cites to Arizona Rule of Evidence 609, which
provides that convictions older than 10 years are admissible to impeach a

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testifying witness only if the proponent provides notice and the probative
value of the conviction outweighs the prejudicial effect. Eleby argues that
the age of his prior convictions demonstrates that they had little probative
value.

¶15 Even if we apply the evidentiary rules, they allow for
admission of prior bad acts to prove intent, and the absence of mistake or
accident. Ariz. R. Evid. 404(b)(2). Here, Eleby was disbarred for
professional misconduct involving the misappropriation of client funds for
personal use. And he spent a year in prison after pleading guilty to two
felony counts of theft for that misappropriation. Eleby's prior bad acts were
relevant to his intent and the purposefulness (or lack thereof) of his actions.
Accordingly, the Board did not abuse its discretion in admitting such
evidence during the PPAC hearing.

III. Sufficiency of the Evidence.

¶16 Eleby argues that substantial evidence did not support the
Board's decision.

¶17 We defer only to the committee's supported credibility
findings and independently evaluate all other factual and legal issues.
Simms, ___ Ariz., at ___, ___, ¶¶ 34, 54–55. The standard of proof in
administrative hearings is a preponderance of the evidence. A.A.C. R2-19-
119(A).

¶18 Eleby was accused of violating regulations regarding
accounting and tracking of funds collected from students, parents, and
school personnel, see A.A.C. R7-2-1308(A)(2) and (A)(3), and engaging in
conduct that discredited the teaching profession, see A.A.C. R7-2-
1308(B)(15). "Individuals found to have engaged in unprofessional or
immoral conduct shall be subject to, and may be disciplined by, the Board."
Id. at (C).

¶19 Eleby operated two unauthorized fundraisers, failed to
adhere to BUSD and USFR policies, and used a BUSD credit card at
unauthorized stores. Eleby admitted to the alleged actions but attempted
to justify or explain his conduct. The PPAC credited Dr. Bonn's testimony,
which was supported by evidence of Eleby's conduct, including Eleby's
admissions. We have independently reviewed the record and agree with
the Board that a preponderance of the evidence showed Eleby's conduct
violated R7-2-1308(A)(2), (A)(3), (B)(15), and (C), warranting disciplinary
action.

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CONCLUSION

¶20 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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