THE OPEN MEETING LAW:

A FARCE IN COCHISE COUNTY

This 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 ]

ARS 38-431.01. Meetings shall be open to the public

A. 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.

B. 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:

...

4. 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].

C. 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.

D. 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.

E. 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.]

...

G. 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 action.

Closed Meetings, Called "Executive Sessions"

ARS 38-431.03 Executive sessions

A. 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!]

1. 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 hours ....

2. Discussion or consideration of records exempt ... from public inspection ...

3. Discussion or consultation for legal advice with ... attorneys of the public body.

4. Discussion or consultation with ... attorneys ... regarding ... contracts that are the subject of negotiations, in pending or contemplated litigation or in settlement discussions ....

5. Discussions or consultations with designated representatives of the public body ... regarding negotiations with employee organizations ....

...

7. Discussions or consultations with designated representatives of the public body ... regarding negotiations for the purchase, sale or lease of real property.

B. Minutes of and discussions made at executive sessions shall be kept confidential except from:

...

2. Officers, appointees or employees who were the subject of discussion or consideration pursuant to subsection A, paragraph 1 of this section.

...

D. .... A public vote shall be taken before any legal action binds the public body.

E. 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.

The 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 attorney-client privilege.

(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

The 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.]

ARS 38-431.05 states:

A. 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 issued an 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.]

B. A public body may ratify legal action taken in violation of this article in accordance with the following requirements:

1. 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.]

2. 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.

3. 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 such action....

4. 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.

For how 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
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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 they 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 three ways:  the agenda didn't comply with the OML; after an executive session, supervisor Searle quoted advice that a county attorney gave in the executive session; and Searle's leak revealed that the rule was discussed in executive session even though it wasn't on the agenda.

    -- 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 05-20.
    -- 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 that the item "dies at this level and is not [to] be forwarded to the Board."  The chair soon called a break, 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
http://littlebigdog.net/PNZJan112006.htm

October 2006, the P&Z Commission meeting:  it defeated the proposed Sierra Vista Subwatershed Overlay District.  Department head Judy Anderson made a new application, and put it on the Commission's November agenda with the same docket number.  However, in November, the Commission 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 agenda 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 Meeting Law.  On October 30, the BOA held a meeting to ratify the results of 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 38-431.05(B)(3). For 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 applies.
    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.
    The county 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.
    So now 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 Sunday!
    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
    [Followup:  apparently 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 mislead people.]

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:
    http://www.co.cochise.az.us/BOS/MeetingMinutes/9.30.08%20Special%20Mtg.htm

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."