THE OPEN MEETING LAW:
A FARCE IN COCHISE COUNTY
site first sets out the basics of the Open Meeting Law, the "OML," then
gives examples of how little it means in Cochise County. To jump
directly to the examples, click here
BASICS OF THE OPEN MEETING LAW
Under the Open Meeting Law, the "OML,"
Arizona public bodies, including the county and city agencies, must make their meetings open to the public. [Note: Here's a link to the actual statutes: http://www.azleg.gov/ArizonaRevisedStatutes.asp ]
38-431.01. Meetings shall be open to the public
All meetings ... shall be public meetings and all
persons ... shall be permitted to attend and listen .... All legal action of
public bodies shall occur during a public meeting.
All public bodies, except for subcommittees and advisory
committees, shall provide for the taking of written
minutes or a recording of all their meetings, including
executive sessions. For meetings other than executive
sessions, such minutes or recording shall include, but
not be limited to:
An accurate description of all legal actions
proposed, discussed or taken, and the names of
members who propose each motion. The minutes shall
also include the names of the persons, as given,
making statements or presenting material to the
public body and a reference to the legal action ...
which they [addressed].
Minutes of executive sessions shall include ... an accurate description of all instructions
given pursuant to section 38-431.03[(A)(4), (5) and (7)]
and such other matters as may be deemed appropriate by
the public body.
The minutes or a recording shall be open to public
inspection three working days after the meeting except as
otherwise specifically provided by this article.
All or any part of a public meeting ... may be recorded
by any person in attendance by means of a tape recorder,
camera or other means of sonic reproduction, provided
that there is no active interference with the conduct of
the meeting. [Note, you may
record a meeting even if some politico doesn't like it; the annoyance
of some stuffed shirt at being record doesn't make it "active interference" for you to record.]
A public body may make an open call to the public ... to allow individuals to address the
public body .... At the conclusion of an open call ... , individual members of the public body may respond to
criticism ... , may ask staff to review a matter or may ask that a
matter be put on a future agenda. However, ... the
public body shall not discuss or take legal action on
matters raised during an open call ... unless the
matters are properly noticed for discussion and legal
Closed Meetings, Called "Executive
38-431.03 Executive sessions
Upon a public majority vote of ... a
quorum, a public body may hold an executive session but
only for the following purposes: [Note, and not for any others!]
Discussion or consideration of employment,
assignment, appointment, promotion, demotion,
dismissal, salaries, disciplining or resignation of a
public officer, appointee or employee ... , except
that, with the exception of salary discussions, an
officer, appointee or employee may demand that the
discussion or consideration occur at a public meeting.
The public body shall provide the officer, appointee
or employee with written notice of the executive
session as is appropriate but not less than twenty-four
Discussion or consideration of records exempt ...
from public inspection ...
Discussion or consultation for legal advice with ... attorneys of the public body.
Discussion or consultation with ... attorneys ...
regarding ... contracts that are the subject of
negotiations, in pending or contemplated litigation
or in settlement discussions ....
Discussions or consultations with designated
representatives of the public body ... regarding
negotiations with employee organizations ....
Discussions or consultations with designated
representatives of the public body ... regarding
negotiations for the purchase, sale or lease of real
Minutes of and discussions made at executive sessions
shall be kept confidential except from:
Officers, appointees or employees who were the
subject of discussion or consideration pursuant to
subsection A, paragraph 1 of this section.
.... A public vote shall be taken before any legal
action binds the public body.
Except as provided in section 38-431.02, subsections I
and J, a public body shall not discuss any matter in an
executive session which is not described in the notice of
the executive session.
exceptions noted in that last paragraph are:
(I).... notice of executive sessions shall be required to
include only a general description of the matters to be
considered.... more than just a
recital of the statutory provisions authorizing the
executive session, but ... not ... information that
would defeat the purpose of the executive session,
compromise the legitimate privacy interests of a public
officer, appointee or employee, or compromise the
(J).... in the case of an
actual emergency a matter may be discussed and considered
and, at public meetings, decided, where the matter was
not listed on the agenda provided that a statement
setting forth the reasons necessitating such discussion,
consideration or decision is placed in the minutes of the
meeting and is publicly announced ....
Effects of the Board Of Supervisors
Violating the OML
basic effect of violating the OML is that every
action taken during a meeting is void. [Note: But see the note in red immediately below.]
All legal action transacted by any public body during a
meeting held in violation of any provision of this article is
null and void except as provided in subsection B.
[NOTE: Despite this statute, the state Attorney General recently
opinion that the only action made void is the one directly affected by
a violation of the OML. Our AG is contradicting the plain
language of the law, and depriving Arizona citizens of the
protection of the law.]
A public body may ratify legal action taken in violation of
this article in accordance with the following requirements:
Ratification shall take place at a public meeting within
thirty days after discovery of the violation or after
such discovery should have been made by the exercise of
reasonable diligence. [Note: Clearly,
a citizen need not complain about a violation at the
meeting where it occurs; the statute schedules
events from the date on which a violation is discovered, not the date of a meeting.]
The notice for the meeting shall include a description of
the action to be ratified, a clear statement that the
public body proposes to ratify a prior action and
information on how the public may obtain a detailed
written description of the action to be ratified.
The public body shall make available to the public a
detailed written description of the action to be ratified
and all deliberations, consultations and decisions by
members of the public body that preceded and related to
The public body shall make available to the public the
notice and detailed written description ... at least seventy-two hours in advance of the
public meeting at which the ratification is taken.
to start an investigation of a possible violation, see ARS 38-431.06.
And now, on to some of the OML violations that keep recurring in Cochise County.
SOME OML VIOLATONS IN COCHISE COUNTY
(If you got here by clicking directly from the top of this page,
you can return to the top anytime by pressing your browser's "back" button.)
This is not a complete list, which would be much longer. These are only the most exceptional events.
February 22, 2005: the Supervisors discussed Miracle Valley's providing
lodging to Minutemen. The minutes say the Board went "into
executive session to obtain legal advice regarding the expected large
gathering in the Palominas area for an estimated 30 days...."
However, the minutes list the attendees as all three supervisors, the
Board clerk, the Board attorney, two members of the sheriff's
department, and three Planning and Zoning employees. Unless
were all essential to receiving the legal advice, their presence
violated the OML, and the executive session was just an illegal way to
keep the public from
hearing what officials were planning.
For more, see http://littlebigdog.net/minutemen.htm
April 26, 2005: the Supervisors
adopted a rule
that lets two supervisors prevent the third from discussing any issue
they don't want him to. That meeting violated the OML in
ways: the agenda didn't comply with the OML; after an
session, supervisor Searle quoted advice that a county
gave in the executive session; and Searle's leak revealed that
rule was discussed in executive session even though it wasn't on
-- Violation 1: the Agenda said there would be an executive session to obtain legal
advice on the rights of Board members and personnel matters. But the Agenda violated the OML by not identifying the statute authorizing discussion of
personnel matters. The Agenda also violated the OML by
not saying what
the advice was about. The Agenda said the advice was about legal
rights -- which is meaningless, since all legal advice is about legal
rights. The OML is violated when the public isn't even informed
of the subject of legal advice that will be given. It turned out
(see the following paragraph) that the executive discussion discussed
Resolution 05-20, which lets the two Republicans gag the one Democrat
-- which you couldn't tell by reading the Agenda.
-- Violation 2: the OML forbids leaking what is said in executive session, but in
public, supervisor Searle leaked that during the executive session, deputy county attorney Irwin advised the Board about Resolution
-- Violation 3: The Board violated the OML by discussing Resolution 05-20 in
executive session. The OML forbids an executive session from discussing anything not
on the Agenda, and Resolution 05-20 wasn’t on the executive session Agenda.
The result of these violations of the OML is that Resolution 05-20 was
dead the instant it was passed, and it should stay
dead. But Searle won't acknowledge that.
January 2006, the Planning & Zoning Commission meeting: after a tie vote about imposing county building
codes onto rural areas, the chair told the public that "a tie is being
forwarded to the Board of Supervisors
...." Actually, under the bylaws, a tie vote meant
item "dies at this level and is not
[to] be forwarded to the Board." The chair soon called a
and all the public left. When the meeting resumed, the
chair picked the dead item off the floor and put it back on the agenda
without any notice to the public. Planning &
Zoning Department head Judy Anderson noted the situation in a letter on
January 25, 2006, but did nothing to get into
compliance with the OML. For more, see
October 2006, the P&Z
Commission meeting: it defeated the proposed Sierra Vista
Subwatershed Overlay District. Department head Judy
made a new application, and put it on the Commission's November agenda
with the same docket number. However, in November, the
did not consider Anderson's new application; the
Commission reconsidered the item that had been defeated in October --
which was not on the agenda. Discussing an item not on the
violated the OML, so the vote passing the Sierra Vista Subwatershed
Overlay District is null and void. For more, see http://littlebigdog.net/PNZNovember2006.htm
October 9, 2007: the Board Of
Adjustment for District 3 held a meeting
without proper notice. That violated the Open
On October 30, the BOA held a meeting to ratify the results
the October 9 meeting. However, the notice for October 30
itself violated the OML by leaving
out a detailed description of the prior meeting, as required by Arizona Revised Statute
the long original post on this subject, with the correspondence on both
sides, go to http://littlebigdog.net/BoardOfAdjustment3.htm .
June 23, 2008: all
three county supervisors met with a few insiders to yak about local
business. The county government website posted notice of a
meeting, but no agenda. That violated Arizona's Open Meeting Law.
Then the supervisors further broke the law by discussing public
business with a few specially invited friends -- including Judy Gignac,
who's a contributor to supervisor Call, and is also his campaign
manager. How nice that the supervisors could talk to these people
without the public knowing about it beforehand.
Notice of a Work Session on 10 a.m. Monday, August 25, 2008, wasn't posted on
the county website until midafternoon Saturday, August 23. The notice
wasn't posted by noon, but appeared about 4 p.m. on Saturday.
That was about 6 hours too late, according to Arizona law.
A particular statute in the OML, ARS 38-431.02, controls the notices of public
meetings. Subsection C of the statute says "meetings shall not be held
without at least twenty-four hours' notice to the members of the public
body and to the general public."
Exceptions are allowed in actual emergencies, or if a meeting is
recessed and resumed, or if a "technological problem or failure" either
"prevents the posting of public notices on a city or town web site" or
"prevents the usage of all or part of the web site." But none of them
Under the law, when you must act within a certain time, "the time [is]
computed by excluding the first day and including the last day, unless
the last day is a holiday, and then it is also excluded" -- and every
Sunday is a holiday (ARS 1-243.A & 1-301.A.1).
So to give 24 hours' notice of a meeting at 10 a.m. Monday, you could
give notice by 10 a.m. the Sunday before -- except that because Sunday
is a holiday, you must act by 10 a.m. Saturday.
At least that's what the statute appears to say. If the county
disagrees, explaining shouldn't take long, because CCIPA's campaign to
get the county to follow the law has been going on for years.
The county did disagree. An email from the BOS clerk to me said
some county attorney opined that posting notice on Saturday, for a
Sunday meeting, was okay, because Sunday isn't a holiday
The anonymous staff attorney's posture is ridiculous,
because it gives ridiculous results. Yes, 4 p.m. Saturday is over 24
hours before 10 a.m. Monday, IF you count the holiday between Saturday
and Monday -- every Sunday being a legal holiday in Arizona. But if you
count Sunday hours toward the 24-hour requirement, then the county can meet the 24 hour requirement
even if it posts notices on Sunday itself. The county could set a
meeting for 4 p.m. Monday, and post notice as late as 3:59 p.m. Sunday,
and that would be fine -- under our county's ridiculous interpretation.
has already been posting notices of meetings as late as possible.
Typically, the agendas for BOS and P&Z meetings are finalized weeks
in advance, but only posted on a Friday (for BOS Tuesday meetings) or a
Monday (for P&Z Wednesday meetings). The incumbent
supervisors clearly want to keep citizens ignorant as long as possible.
people can't even trust what's posted on the county website, even
after county offices shut down on Friday. To discover
meetings set for Monday, people must check the county website all day
The fact that our county supervisors want to play this ridiculous game
is proof that we can't trust them. Trustworthy supervisors wouldn't
work hard to keep us ignorant of what they're up t
notice of the meeting was posted by noon -- not necessarily by 10 a.m.
-- on Saturday morning on the county BOS webpage by a link called
"Public Notice and Current Agenda." However, the link called
"Calendar/Agendas/Minutes," in larger type, did NOT have notice of the
meeting. This kind of problem with the county website has been
brought to the Supervisors' attention before. After this latest
mess, Supervisor Searle says "It makes perfect sense that the two should be linked. I will ask staff to
follow up on this change to the web page." We'll see if the
non-informative links are fixed, or if the county website continues to
September 2008: The question about links has been answered:
the county will continue to play games with its website.
Here's one of the county links to a special Board Of Supervisors
meeting on September 30:
Here's a screenshot showing the page taking you to that link (if you can't see the screenshot, it's posted at http://littlebigdog.net/___ForRichard1.jpg
When you follow the link shown on that page, here's what you get (if you can't see the screenshot, it's posted at http://littlebigdog.net/___ForRichard2.jpg
In other words, if you went to the county's usual site for agendas, you couldn't find the agenda of the September 30 meeting.
I pressed Searle about this. His final answer was "I
was able to access this notice from both the main page of the website
and from the BOS page, I'm not sure where else a person might want to
look. The notice was posted around noon on Monday." This is an
example of the old Cochise County axiom, "You can lead Richard to the
data, but you can't make him look."