It's a rule of reading statutes that the language in them must be construed to mean something, if possible.  In this particular statute, the requirement for details of "all deliberations, consultations and decisions" obviously means more than just stating that the vote on an item was favorable.  We already know the vote was favorable, or there'd be nothing to ratify.  The requirement seems to require a description of the deliberations that led up to the vote, so that citizens can see what reasons were originally given for giving a favorable vote.

The Attorney General's office provides local governments with a sample notice that complies with the Open Meeting Law.  All the county had to do was follow that example.  Instead, the county varied from the example, and broke the law.

But -- no surprise to CCIPRAns -- the county is unwilling to admit that it broke the law, and unwilling to do anything about breaking it.  A deputy county attorney has issued his opinion, and this writer has responded to that.  There's still time for the county to do what's right, and obey the law, but the county usually follows the county attorney's advice, meritorious or not.

There's a good reason why county employees follow a county attorney's advice even if it clearly is worse than outside analysis:  following a county attorney's advice usually keeps a county employee safe from personal liability.  As long as the employee claims to be acting in good faith reliance on the county attorney, the employer is immune to being sued personally.  Sometimes a deputy county attorney's real job is to make arguments that wouldn't stand up in court, but are just good enough to shelter county employees.  Yep, sometimes the bear wins.  But that's what elections are for.

You can judge the merits of this particular case for yourself.  Here's the response to the county attorney's opinion (which is reproduced in full at the bottom of the response):

With all due respect to Mr. Hanson, his recent opinion about the Board Of Adjustment's October 30 violation of the Open Meeting Law is simply wrong.  This response points out the errors that matter.
    I've copied the text of Hanson's opinion at the foot of this email.  This response addresses its main argument, and also its citation of cases.

Hanson says "it is not even clear that that there was a defect in the ratification agenda."  The statute contradicts Hanson's assertion:  "A public body may ratify legal action taken in violation of this article in accordance with the following requirements: ... The public body shall make available to the public a detailed written description of ... all deliberations, consultations and decisions by the public body that preceded and related to such action.  The written description shall also be included as part of the minutes of the meeting at which ratification was taken," ARS 38-431.05(B)(3).  The Board Of Adjustment did not make such a written description available.  Therefore, there was clearly a defect in the ratification agenda.
    Hanson then acknowledges that the Board did not make the written description available, but he argues that "it appears from the minutes of the meeting that although Board members asked some questions of applicants, there was little, if any, 'deliberations' or 'consultations'."  Hanson acknowledges that there were questions, and presumably answers, but he distinguishes questions and answers from "deliberations and consultations."  That's an extremely close distinction, which would be impossible to carry out in the actual preparation of minutes, and therefore cannot be a distinction that the Open Meeting Law contemplates.
    Hanson then asserts that "The matters apparently were not controversial. Consequently, there wouldn't be much to describe other than the proposed variances and the fact that they were approved-which, of course, is included in the ratification agenda," and he shortly thereafter writes "even if there were some 'deliberations' or 'consultations' that would have been worthy of description...."  Hanson is arguing that because, in his opinion, the discussion couldn't have amounted to much, the meeting was exempt from the Open Meeting Law.  Arizona law, and Arizona's Attorney General, disagree:
        "In 1978, after a series of court opinions narrowly construing the Open Meeting Law, the Legislature reiterated its policy by adding A.R.S. § 38-431.09.  That statute now provides:  It is the public policy of this state that meetings of public bodies be conducted openly and that notices and agendas be provided for such meetings which contain such information as is reasonably necessary to inform the public of the matters to be discussed or decided.  Toward this end, any person or entity charged with the interpretation of this article shall construe any provision of this article in favor of open and public meetings.  A.R.S. § 38-431.09.  In keeping with this expressed intent, any uncertainty under the Open Meeting Law should be resolved in favor of openness in government.  Any question whether the Open Meeting Law applies to a certain public body likewise should be resolved in favor of applying the law," Arizona Agency Handbook, section 7.2.2.
    Hanson then argues that "by the time of the ratification agenda all notices of the hearing had been given and no one protested the proposed variances. Hence, no one could have been prejudiced by the supposed lack of a description of the deliberations."  Hanson's reference to a "supposed lack of a description" is cryptic, since it is absolutely clear that the description was lacking; perhaps it's an attorney thing.  In any case, Hanson is again arguing against applying the Open Meeting Law -- exactly the opposite of what the Law requires.  Nor does Hanson's argument make sense in practical terms.  He says "all notices of the hearing had been given and no one protested the proposed variances" -- but notices had not been given completely, and the parts that were omitted, the detailed discussion of deliberations, were precisely the parts that would let people decide whether they should attend the ratification meeting.  Hanson is arguing that even though open government is required by law, withholding information is permissible because people don't react to information they don't get.
    Hanson's argument spends much time trying to work around the obvious:  the Open Meeting Law was violated, Hanson does not have the power to rewrite the law or to interpret it out of existence, and the Open Meeting Law makes the October 30 ratification null and void.

Hanson cites two cases, the Karol case from 1979, and the Ahnert case from 1980, for the proposition that "a technical violation of the OML that has no prejudicial effect does not void the action that was taken at the meeting."
    Let me note initially that Hanson has not shown that the violation of the Open Meeting Law had no prejudicial effect.  The county cannot first foster public indifference to a meeting by issuing a notice without information which might induce people to attend, and then claim that public indifference shows that leaving out the information didn't matter.  Hanson's assertion is the result of arguing in a circle.
    In any event:  the Karol and Ahnert cases came before the Open Meeting Law was modified to allow ratification of meetings where the Law had been violated.  When the Karol and Ahnert opinions were issued, courts had no statute to guide them in handling cases when proper notice was not issued for a meeting.  The legislature responded to such cases in 1982, by passing the statute allowing ratification and setting up detailed procedures for it.  That's ARS 31-438.05, including subsection (B)(3), at issue in the present case.
    The Agency Handbook notes that the Karol case was decided before the statute governing ratification, and contradicts the statute:  "The Arizona Supreme Court, however, has held that legal actions taken in violation of the Open Meeting Law are voidable at the discretion of the court.  Karol v. Board of Educ. Trustees, 122 Ariz. 95, 97, 593 P.2d 649, 651 (1979).  In the Karol case, the court held that:  '[A] technical violation having no demonstrated prejudicial effect on the complaining party does not nullify all the business in a public meeting when to conclude otherwise would be inequitable, so long as the meeting complies with the intent of the legislature.'  Id., 122 Ariz. at 98, 593 P.2d at 652.  This decision imposes a substantial compliance test and requires a weighing of the equities before a court will declare an action void.  The decision, however, preceded the 1982 amendment to the Open Meeting Law which specifically authorizes a procedure for ratification.  It remains to be seen whether this change will cause the court to follow the literal language of the Open Meeting Law.  Nevertheless, the serious consequences that flow from having an action of a public body declared void should serve to remind the public body that it should take every precaution to avoid even technical violations of the Open Meeting Law."
    Hanson's citation of a case which contradicts the words and intent of the Open Meeting Law, and which the Attorney General uses as a reminder to "take every precaution to avoid even technical violations of the Open Meeting Law," does not support his argument.
    The Agency Handbook, in discussing the minutes of meetings, also cites Karol for the proposition that "If the discussion in the public session did not adequately disclose the subject matter and specifics of the action taken, the minutes of the public meeting at which such action was taken should contain sufficient information to permit the public to investigate further the background or specific facts of the decision.  See Section 7.7.5; Karol v. Board of Educ. Trustees, 122 Ariz. 95, 593 P.2d 649 (1979)," Agency Handbook section 7.8.2.6.  Hanson's memorandum discusses the Board Of Adjustment's minutes in a way which makes it appear that this requirement of the Open Meeting Law may also have been violated.
    Finally, the Agency Handbook also cites Karol for the proposition that "Public bodies should take caution when using consent agendas.  The Arizona Supreme Court has held that taking legal action, including that taken after an executive session, must be preceded by a disclosure of 'that amount of information sufficient to apprise the public in attendance of the basic subject matter of the action so that the public may scrutinize the action taken during the meeting . . . .'  Karol v. Board of Educ. Trustees, 122 Ariz. 95, 98, 593 P.2d 649, 652 (1979)."  That citation does not directly apply to our present case, but it is another indication that, if Hanson wishes to rely on Karol, he has an uphill fight at every point.
    As to the Ahnert case, I am unable to find any reference to it online, but because Hanson has cited it for the same proposition as the Karol case, and because Ahnert, like Karol, came before the ratification statute was adopted, Ahnert is not likely to add anything to Hanson's argument.
    Hanson has not produced any case, dating from after the statute enacted a ratification procedure, in which Karol or any other case were followed despite their contradicting the ratification statute.

The cases Hanson cites came before the present statute provided a ratification procedure for meetings in which the Open Meeting Law was violated; the cases contradict the statute; and Hanson has produced no case in which those cases were followed in preference to the statute.  The statute governs over cases which came before.
    Time has passed for ratifying the results of the October 9 meeting.  The actions taken at that meeting remain null and void.  To legally pass the agenda items at that meeting, a new meeting is required, with notice that satisfies the Open Meeting Law.
    I have reviewed Mr. Jackson' complaint and determined that if the ratification notice violated the Open Meeting Law, it is only a technical violation with no prejudicial effect and therefore no further action need be taken on any of the three variances approved by the Board of Adjustment. This is in accordance with longstanding Arizona caselaw holding that a technical violation of the OML that has no prejudicial effect does not void the action that was taken at the meeting. Karol v. Board of Trustees, Florence Unified School District, 122 Ariz. 95, 593 P.2d 649 (1979); Ahnert v. Sunnyside Unified School Dist. No. 12, 126 Ariz. 473, 616 P.2d 933 (Div. 2 1980). Following is a fuller discussion of the basis for my conclusion.
    All three matters on the Board of Adjustment agenda were variances. For variances, property owners within 300 feet of the subject property are notified by mail of the hearing on the variance. I have confirmed with Judy Anderson that this was done for these three agenda items. Typically the people interested in a variance are the applicant and neighboring property owners. Consequently, it is likely that even with the original hearings (Oct. 9, 2007), where the agenda was not officially posted, everyone who might possibly care about the variances in fact had notice of the meeting. There were no protests to any of the variances. At the subsequent October 30, 2007 ratification hearing, which was officially posted, Susanna Montana has confirmed that the meeting was opened to the public and no one spoke. Thus, we can infer that no member of the public was prejudiced even from the failure to officially post the original October 9th meeting. Therefore, we can also infer that no one was prejudiced by any possible defect in the agenda for the ratification meeting.
    Moreover, it is not even clear that that there was a defect in the ratification agenda. The agenda adequately explains the agenda items and action taken, as required by the OML. It further explains the reason that ratification is needed. The only possible defect is that there was no "detailed description" of the "deliberations" and "consultations" of the Board of Adjustment that "preceded and related" to the Board's actions. However, it appears from the minutes of the meeting that although Board members asked some questions of applicants, there was little, if any, "deliberations" or "consultations". The matters apparently were not controversial. Consequently, there wouldn't be much to describe other than the proposed variances and the fact that they were approved-which, of course, is included in the ratification agenda. And even if there were some "deliberations" or "consultations" that would have been worthy of description, again, by the time of the ratification agenda all notices of the hearing had been given and no one protested the proposed variances. Hence, no one could have been prejudiced by the supposed lack of a description of the deliberations.
    For those reasons, I conclude that if there was a defect-and that is far from clear-it is technical and therefore harmless error. There is absolutely no reason to hold another hearing on any of these agenda items.
    For future purposes, of course, it would be useful to add the "tag line" on the Attorney General's form for ratification agendas to the effect that a written description of the deliberations, consultations, etc. is available to the public, accompanied by contact information for anyone interested to obtain it. If the meeting minutes describe this sufficiently, that could be used as the written description.
    You may share this e-mail with anyone you wish. Since it is a matter that has been raised by a member of the public, and does not involve any possible adverse consequences to the County or County employee, I see no reason to invoke attorney-client privilege.
    If you have any questions or comments, please let me know.

Mr. Hanson's email address is BHanson@co.cochise.az.us