Arizona’s Open Meeting Law and the AIRC

Posted by AzBlueMeanie:

I have had quite enough of Tea-Publicans describing an alleged violation of Arizona's Open Meeting law — and it is only alleged, it has not been proven in a court of law – as "gross misconduct" in office that warrants removal from office. These Tea-Publicans can get away with this crap only because the media has failed to educate the public on what the law actually provides.

So here it is, the Arizona Attorney General's Handbook on Arizona's Open Meeting law. I suggest Tom "banned for life by the SEC" Horne read it. http://www.azag.gov/Agency_Handbook/Ch7.pdf (Revised July 2010). Section 7.13 addresses Sanctions for Violations of the Open Meeting Law (emphasis added):

7.13.1 Nullification. All legal action transacted by any public body during a meeting held in violation of any provision of the Open Meeting Law is null and void unless subsequently ratified. A.R.S. § 38-431.05(A). The procedures for ratification are described in Section 7.11.2.

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, 122 Ariz. at 97, 593 P.2d at 651 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.

In some cases, the public body may have discussed a matter at an unlawful meeting, but thereafter met in a lawful open meeting at which it took a formal vote as its "final action." The Arizona Court of Appeals has held that the subsequent "final action" taken at a lawful meeting is not void. Valencia v. Cota, 126 Ariz. 555, 6l7 P.2d 63 (App. 1980). The public body taking the final action at the subsequent lawful meeting should make available at that time the substance of all discussions that took place at the earlier unlawful meeting. If the public body wishes to preserve the effective date of the earlier action rather than simply redecide the matter, it must go through the ratification process. See Section 7.11.

7.13.2 Investigation and Enforcement.

7.13.3 Civil Penalties. The court may impose a civil penalty not exceeding five hundred dollars against any person for each violation of the Open Meeting Law. A.R.S. § 38-431.07(A). This penalty can be assessed against a person who violates the Open Meeting Law or who knowingly aids, agrees to aid or attempts to aid another person in violating the Open Meeting Law. Id. This penalty is assessed against the individual and not the public body, and the public body may not pay the penalty on behalf of the person assessed, see id.

7.13.4 Attorney's Fees. The court may also order payment of reasonable attorney's fees to a successful plaintiff in an enforcement action brought under the Open Meeting Law. A.R.S. § 38-431.07(A). Normally those fees will be paid by the state or political subdivision of which the public body is a part or to which it reports. Id. However, if the court determines that a public officer violated the Open Meeting Law "with intent to deprive the public of information," the court must assess against that public officer or a person who knowingly aided, agreed to aid or attempted to aid the public officer in violating the Open Meeting Law all of the costs and attorney's fees awarded to the plaintiff. Id. As in the case of an award of civil penalties, the public body may not pay such an award of attorney's fees assessed against the public officer individually. See id.

7.13.6 Removal From Office. If the court determines that a public officer violated the Open Meeting Law "with intent to deprive the public of information," the court may remove the public officer from office. A.R.S. § 38-431.07(A).

The critical enforcement provisions of Arizona's Open Meeting law provide that "If the court determines"… Not the Governor. Not the legislature. The COURT. The governor and legislature acted without legal authority and failed to afford the accused due process in violation of her state and federal constitutional rights. And that is a far more serious offense warranting removal from office.

And by the way, the legislature and the governor's office negotiated all of this behind closed doors in a closed GOP caucus in violation of the very same Open Meeting law. If they applied the same standard to their own actions that they seek to apply to Colleen Mathis, the Governor and every Tea-Publican senator is guilty of "gross misconduct" in office for which they should be removed from office. What's good for the goose is good for the gander … "equal justice under law" and all that.

Take note that the standard for removal from office for a violation of Arizona's Open Meeting law is a finding of fact by the COURT that the violation was "with intent to deprive the public of information," not "gross misconduct in office." To the best of my knowledge, no elected official in Arizona has ever been removed from office by the Court for a violation of Arizona's Open Meeting law "with intent to deprive the public of information."

There are no facts alleged against Colleen Mathis that could in any way, shape or form be described as a violation of the Open Meeting Law  "with intent to deprive the public of information." At best, the court may find that there was a technical violation of the law, as is typical in these cases.

What typically occurs is that an action taken in violation of Arizona's Open Meeting law is subject to nullification and is null and void upon a COURT determination of a violation. Pay your $500 fine and possibly attorneys fees and costs. The action in question may then be ratified in a subsequent Open Meeting, producing the exact same result (which means that the contract with the mapping firm Strategic Telemetry will be ratified by the AIRC, as it has already been ratified by the AIRC previously):

7.12.1 Generally. A public body may ratify action previously taken in violation of the Open Meeting Law. See A.R.S. § 38-431.05(B). Ratification is appropriate when the public body needs to retroactively validate a prior act in order to preserve the earlier effective date of the action. . .Accordingly, the 1982 amendments permit the public body to meet and approve retroactively the action previously taken — that is, to ratify its prior action.

Ratification must take place “within 30 days after discovery of the violation or after such discovery should have been made by the exercise of reasonable diligence.” A.R.S.§ 38-431.05(B)(1). A judicial determination that the public body took legal action in violation of public meeting laws triggers the thirty-day period. Tanque, 206 Ariz. at 208-210, 76 P.3d at 882-884. However, it is not triggered by letters from attorneys notifying the board of their intent to challenge the legal action or by filing a lawsuit. Id. at 883.

Ratification merely validates the prior action; it does not eliminate liability of the public body or others for sanctions under the Open Meeting Law, such as civil penalties and attorney's fees.

7.12.2 Procedure for Ratification. The Open Meeting Law provides a detailed procedure for ratification. A.R.S. § 38-431.05(B). That procedure is as follows:

1. The decision to ratify must take place at a public meeting held in accordance with the Open Meeting Law.

2. Ratification must take place within thirty days after discovery of the violation or after such discovery should have been made by the exercise of reasonable diligence.

3. The public notice of the meeting at which ratification is to take place, in addition to complying with the other requirements of the Open Meeting Law, see Sections 7.6 and 7.7, must include (a) a description of the action to be ratified, (b) a clear statement that the public body proposes to ratify a prior action, and (c) information on how the public may obtain a written description of the action to be ratified. See Form 7.12.

4. In addition to the notice and agenda of the meeting, the public body must make available to the public a detailed written description of the action to be ratified and a description of all prior deliberations, consultations, and decisions by members of the public body related to the action to be ratified.

5. The description required under paragraph 4 must be included as part of the minutes of the meeting at which the decision to ratify was made.

6. The public notice, agenda, and written description discussed in paragraphs 3 and 4 must be made available to the public at least seventy-two hours prior to the public meeting.

Arizona Democratic Party Chair Andrei Cherny briefly touched upon the above law in an interview on Hardball with Chris Matthews on Thursday (interview begins at 3:58 mark).

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