                       IN THE

SUPREME COURT OF THE STATE OF ARIZONA

                    MARIA ROSAS,
                     Appellant,

                          v.

 ARIZONA D EPARTMENT OF ECONOMIC SECURITY, AN AGENCY,

                         and

             CHICANOS POR LA CAUSA INC.,
                     Appellees.

                   _______________

                   MARIA CASTILLO,
                     Appellant,

                          v.

 ARIZONA D EPARTMENT OF ECONOMIC SECURITY, AN AGENCY,

                         and

             CHICANOS POR LA CAUSA INC.,
                     Appellees.
                  _______________

                  ALICIA SOLORZANO,
                      Appellant,

                          v.

 ARIZONA D EPARTMENT OF ECONOMIC SECURITY, AN AGENCY,

                         and
MARIA ROSAS, ET AL. V. ADES/CHICANOS POR LA CAUSA INC.,
                    Opinion of the Court


                CHICANOS POR LA CAUSA INC.,
                        Appellees.
                     _______________


                      XOCHITL CORREA,
                         Appellant,

                            v.
   ARIZONA D EPARTMENT OF ECONOMIC SECURITY, AN AGENCY,

                             and

                CHICANOS POR LA CAUSA INC.,
                        Appellees.


                     No. CV-19-0100-PR
                     Filed June 19, 2020

           Appeal from the A.D.E.S. Appeals Board
                    No. U-1548356-001 B
                    No. U-1548603-001 B
                    No. U-1548481-001 B
                    No. U-1548369-001 B
              VACATED AND REMANDED

         Opinion of the Court of Appeals, Division One
                   246 Ariz. 267 (App. 2019)
                          VACATED




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    MARIA ROSAS, ET AL. V. ADES/CHICANOS POR LA CAUSA INC.,
                        Opinion of the Court




COUNSEL:

Mark Brnovich, Arizona Attorney General, Brunn W. Roysden, III, Division
Chief, Drew C. Ensign, Section Chief, Civil Appeals, JoAnn Falgout
(argued), Assistant Attorney General, Phoenix, Attorneys for Arizona
Department of Economic Security

Stephen C. Biggs (argued), Smith LC, Mesa, Attorney for Maria Rosas,
Maria Castillo, Alicia Solorzano and Xochitl Correa

                             _______________

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
GOULD, LOPEZ, and MONTGOMERY, and JUDGE BREARCLIFFE *
joined.
                       _______________

JUSTICE BOLICK, opinion of the Court:

¶1             This case concerns the interpretation of A.R.S. § 23-750(E)(5),
which provides that income earned by “any individual who performed”
certain services while employed by an entity that provides such services “to
or on behalf of an educational institution” cannot be used to qualify for
unemployment for breaks between academic terms if that person is assured
reemployment. We hold that in deciding unemployment eligibility,
petitioner Arizona Department of Economic Security (“ADES”) must
determine whether the employees performed services that the entity
provided to or on behalf of the educational institution.




*Justice James P. Beene has recused himself from this case. Pursuant to
article 6, section 3 of the Arizona Constitution, the Honorable Sean E.
Brearcliffe, Judge of the Arizona Court of Appeals, Division Two, was
designated to sit in this matter.
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  MARIA ROSAS, ET AL. V. ADES/CHICANOS POR LA CAUSA INC.,
                      Opinion of the Court


                             BACKGROUND

¶2              Plaintiffs/respondents are employees of Chicanos Por La
Causa (“CPLC”), a nonprofit corporation, which operates childcare
facilities for infants, toddlers, and preschool children up to five years old.
CPLC administers federally funded Early Head Start and Migrant Seasonal
Head Start programs and, as a result, is subject to extensive federal
regulation. See 42 U.S.C. § 9831 et seq.; 45 C.F.R. § 1301 et seq.


¶3            In addition to its Head Start responsibilities, CPLC provides
services to help school districts comply with their obligations under the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et
seq. Those services are described in a Memorandum of Understanding
(“MOU”) with each district, and include recruiting, enrolling, and
screening children.


¶4            Plaintiffs Maria Rosas and Xochitl Correa worked for CPLC
in its Head Start facilities as infant and toddler teachers. Plaintiffs Maria
Castillo and Alicia Solorzano worked, respectively, as a cook and cook’s
assistant. When the 2016 summer break began, the plaintiffs applied for
unemployment insurance benefits from ADES, and an ADES deputy
granted benefits to all four, concluding that CPLC does not provide services
to or on behalf of an educational institution. See A.R.S. § 23-750(E)(5).


¶5             CPLC appealed the determinations to the ADES Appeal
Tribunal. It reversed, finding that CPLC “provides services to or on behalf
of an educational institution” based on the MOUs. The tribunal also found
that plaintiffs had reasonable assurance of reemployment for the following
school year. Consequently, the tribunal held that § 23-750(E)(5) prohibited
them from using their wages earned at CPLC to qualify for unemployment
benefits. Adopting the tribunal’s reasoning, the ADES Appeals Board
affirmed.


¶6            Plaintiffs appealed to the court of appeals, which concluded
they were eligible for unemployment benefits, holding that, although CPLC

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  MARIA ROSAS, ET AL. V. ADES/CHICANOS POR LA CAUSA INC.,
                      Opinion of the Court


provides services to or on behalf of an educational institution, there were
insufficient facts to support a determination that the plaintiffs performed
such services. Rosas v. Ariz. Dep’t of Econ. Sec., 246 Ariz. 267 (App. 2019).


¶7            We granted review to determine the proper standards for
determining eligibility for unemployment benefits under § 23-750(E)(5),
which is a recurring matter of statewide concern. We have jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S.
§ 41-1993(B).

                               DISCUSSION

                  A. Eligibility for Unemployment Benefits

¶8            In an appeal from an administrative decision, we review
statutory interpretation de novo. We defer to the agency’s fact findings, but
its conclusions must be supported by the record. See Pawn 1st, LLC v. City
of Phoenix, 242 Ariz. 547, 551 ¶ 9 (2017); see also A.R.S. § 12-910(E).


¶9            Although this case involves interpretation of a state statute, it
is informed on multiple levels by federal law. In order to qualify for federal
unemployment support, Arizona unemployment provisions must conform
to the Federal Unemployment Tax Act. See 26 U.S.C. § 3304(a). Through 26
U.S.C. § 3304(a)(6)(A)(v), Congress authorized states to adopt provisions
excluding employees performing certain services for educational
institutions from unemployment benefits during the break between
academic terms if they are assured continuation of employment. This is
commonly referred to as the “between and within terms” exception to
unemployment benefit eligibility.


¶10           Arizona adopted this exception in A.R.S. § 23-750(E). Section
23-750(E)(1) provides that “[b]enefits based on service in an instructional,
research or principal administrative capacity for an educational institution”
shall not be paid between and within terms under specified circumstances
“if there is a contract or a reasonable assurance that the individual will
perform services in any such capacity” in the next term. Section 23-

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    MARIA ROSAS, ET AL. V. ADES/CHICANOS POR LA CAUSA INC.,
                        Opinion of the Court


750(E)(2) extends ineligibility “based on service in any other capacity for an
educational institution.”


¶11           Section 23-750(E)(5), at issue here, pertains to individuals who
are not directly employed by educational institutions. It states that
“benefits are not payable on the basis of services specified in paragraph 1,
2 or 3 of this subsection to any individual who performed these services
while in the employ of an entity that provides these services to or on behalf
of an educational institution.”


¶12            Although they provide early learning services, Head Start
providers like CPLC are not educational institutions for purposes of federal
or state unemployment statutes. U.S. Dep’t of Labor, Unemployment
Insurance Program Letter (“UIPL”) No. 41-97 (Sept. 30, 1997). Absent the
criteria set forth in § 23-750(E)(3), CPLC’s employees would qualify for
unemployment benefits.


¶13             “Our task in statutory construction is to effectuate the text if
it is clear and unambiguous.” BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244
Ariz. 17, 19 ¶ 9 (2018). Words should be construed in their overall statutory
context. Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7 (2017). If the statute’s
text yields different reasonable meanings, we consider secondary
interpretation methods, such as the statute’s subject matter, historical
background, effect and consequences, and spirit and purpose. State v.
Burbey, 243 Ariz. 145, 147 ¶ 7 (2017).


¶14           On its face, § 23-750(E)(5) encompasses two discrete criteria.
To be excluded from unemployment eligibility, the claimant must be an
individual “who performed” services specified in §§ 23-750(E)(1)–(2),1
“while in the employ of an entity that provides these services to or on behalf
of an educational institution.” Those “services,” in turn, are “service in an


1Although the provision also references subsection (3), it is not relevant
here.
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  MARIA ROSAS, ET AL. V. ADES/CHICANOS POR LA CAUSA INC.,
                      Opinion of the Court


instructional, research or principal administrative capacity,” § 23-750(E)(1),
or “service in any other capacity,” § 23-750(E)(2).


¶15           The parties and the adjudicators below construed this
language in sharply divergent ways. The plaintiffs, whose position was
embraced by the court of appeals, argue that they are not excluded from
unemployment benefits because they perform no services whatsoever for
the school district. The teachers, they assert, do not serve students above
age three who would be eligible for IDEA services from the district. The
cook and assistant cook provide meals for the students, but as part of
CPLC’s normal Head Start services, not on behalf of a school district.


¶16           The appeal tribunal and appeals board ruled, by contrast, that
so long as the employer provides services to an educational institution,
anyone who works for the employer, even if in a capacity that does not
serve an educational institution, and whose continued employment is
assured, is subject to the unemployment benefit exception.


¶17           In interpreting a statute, we must whenever possible give
meaning to every word and provision. Nicaise v. Sundaram, 245 Ariz. 566,
568 ¶ 11 (2019). The language in § 23-750(E)(5) is quite clear that the
employee must be an individual “who performed” the specified services.
Thus, the conclusion of the appeal tribunal and appeals board is untenable.
In order to be disqualified from unemployment benefits under the statute,
(1) the employer must have provided services to or on behalf of an
educational institution, (2) the employee must have “performed” those
services, and (3) the employee must have received assurance of
employment in the following year.


¶18          The appeals board erroneously reduced those issues to two:
whether the employing entity provided services to or on behalf of an
educational institution and whether the employees were given assurances
of reemployment. The board essentially ruled as a matter of law that, if
CPLC provided any services to or on behalf of the districts, then all CPLC
employees were ineligible for unemployment benefits so long as they were

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  MARIA ROSAS, ET AL. V. ADES/CHICANOS POR LA CAUSA INC.,
                      Opinion of the Court


assured of reemployment. Focusing on the MOUs, the board concluded
that CPLC provided services to the school districts. But it never determined
exactly what services CPLC provided to the school districts or whether the
employees performed them, which is necessary to determine eligibility
under the statute.


¶19            The MOUs are not contracts specifying services. Rather, they
memorialize the responsibilities of CPLC under the Head Start
requirements, the obligations of the school districts under the IDEA, and
the services that CPLC will provide to assist the districts in meeting those
obligations.     CPLC’s preexisting obligations under the Head Start
programs, or other services it chooses to provide to children independent
of its relationship with the school districts, are not services to or on behalf
of an educational institution. The Department of Labor has explained that
actions “on behalf of” educational institutions are limited to actions taken
“as the agent of” or “on the part of” the institution. UIPL No. 41-83 (Sept.
13, 1983). CPLC is not acting as an agent of or on the part of school districts
when fulfilling its own independent obligations. See Restatement (Third)
of Agency § 1.01 cmt. c (Am. Law. Inst. 2006) (noting right of principal to
control agent and requiring that the “agent consent[] to act on behalf of the
principal”).


¶20           The Department of Labor construes services “provided to” an
educational institution more broadly than “on behalf of,” but only to
encompass services that “give some benefit or support to the institution.”
UIPL No. 41-83. In the case of CPLC, those would include only services
that support or benefit the school district’s fulfillment of its IDEA
obligations. The MOUs specify that CPLC shall screen all enrolled children
for potential health and developmental problems and refer children found
to be at-risk to the school districts. The MOUs suggest other possible
services, such as transportation from the district preschool to CPLC. But no
attempt was made in the administrative process to determine the services
CPLC provides to or on behalf of the districts.


¶21           Without such an analysis, we cannot know whether the
plaintiffs “performed these services,” a determination the appeals board

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  MARIA ROSAS, ET AL. V. ADES/CHICANOS POR LA CAUSA INC.,
                      Opinion of the Court


deemed unnecessary, but which § 23-750(E)(5) requires. The appeals board
observed in passing that the Department of Labor even considers crossing
guards, bus drivers, and cafeteria workers among those who might provide
services to an educational institution. But the Department of Labor is quite
specific that those workers must be providing services directly to the
educational institution, such as city transportation workers assigned to
drive school buses or nonprofit cafeteria workers providing lunches to a
district’s students.     UIPL No. 41-83. The Department of Labor
interpretation strongly supports our view that § 23-750(E)(5) applies to
plaintiffs only if they performed services for CPLC that it supplied to the
school districts. No showing was made here connecting the plaintiffs’ work
to services provided by CPLC to the school districts, which the statute’s
plain language requires.


¶22              The court of appeals correctly found that § 23-750(E)(5)
requires determining “whether employees individually performed” any of
the services provided by CPLC to the school districts. Rosas, 246 Ariz. at
270 ¶ 15. The court erred, however, by holding that all plaintiffs were
eligible for unemployment benefits absent such evidence in the record. The
court concluded that under the MOUs, “the services provided by the non-
profit were limited to the screening of three to five-year-old preschool
children in their Head Start programs for disabilities.” Id. at 269 ¶ 11. But
it is not clear that the services are so limited; ADES argues, for instance, that
they include recruitment, which is arguably supported by the MOUs.
Regardless, because the ADES Appeals Board erroneously failed to
consider whether the employees performed services that CPLC was
providing to or on behalf of the school district, the plaintiffs had no occasion
or opportunity to present evidence on that central issue.


¶23           But the court went on to speculate that the plaintiffs did not
engage in such services. Because Rosas and Correa were infant and toddler
teachers, and Early Head Start programs are limited to children from birth
to three years, the court concluded that it was “unlikely that these
employees would have been in a position to interact with the students that
required screening.” Id. at 270 ¶ 16. That may be a correct assumption, but
it is unsupported by formal factual findings, and the record on that point is
unclear.

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  MARIA ROSAS, ET AL. V. ADES/CHICANOS POR LA CAUSA INC.,
                      Opinion of the Court


¶24           The court also observed that, even if the teachers engaged in
screening services, they “would also serve nondisabled children.” Id. But
that is not the proper inquiry as § 23-750(E)(5) merely requires that the
employees perform services that their employer provides to or on behalf of
the educational institution in order to be subject to the benefit exclusion. It
need not be all they do.


¶25             Accordingly, we remand to ADES to determine whether
Rosas and Correa are eligible for unemployment benefits. On remand, the
agency must determine whether the plaintiffs performed services for CPLC
that it, in turn, provided to or on behalf of the school districts. If they did,
owing to the assurance of reemployment, they are ineligible for
unemployment benefits under § 23-750(E)(5). If they did not perform such
services, they are entitled to unemployment benefits.


¶26            As to Castillo and Solorzano, the court of appeals found “no
evidence in the record that either employee participated in the IDEA
screening of the three to five-year-old students.” Id. ¶ 17. Although we do
not agree that CPLC’s services to or on behalf of the school districts were
limited to screening under the MOUs, we agree that no evidence links the
cooking staff’s activities to any conceivable service CPLC agreed to provide.
The best ADES could offer to support its position in this regard is that
“[a]lthough the MOUs did not specifically require CPLC to provide meals
for the children, any reasonable daycare or preschool would do so as part
of its program for young children who would be at the center for such a
long time.” ADES is surely correct in that assertion, but that fact establishes
only that CPLC provided meals to children, not that CPLC did so on the
school districts’ behalf. Meal services were unrelated to CPLC’s recruiting,
enrolling, and screening services provided to the school districts, as set
forth in the MOUs. Accordingly, we affirm the ADES deputy’s initial
determination and the court of appeals’ conclusion that Castillo and
Solorzano were entitled to benefits.




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  MARIA ROSAS, ET AL. V. ADES/CHICANOS POR LA CAUSA INC.,
                      Opinion of the Court


                             B. Attorney Fees

¶27           The court of appeals awarded attorney fees to plaintiffs.
Arizona Revised Statutes § 12-348(H)(1) precludes attorney fees against the
state where its role “was to determine the eligibility or entitlement of an
individual to a monetary benefit.” That is the role ADES played here.
Accordingly, we reverse the attorney fee award.


                             CONCLUSION

¶28         We vacate the opinion of the court of appeals and remand the
case to ADES to award unemployment benefits to plaintiffs Castillo and
Solorzano and for further proceedings to resolve the claims of plaintiffs
Rosas and Correa in accordance with this opinion.




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