January 5, 2008
By Dave McLane
A letter of findings by the Attorney General’s Office Open Meeting Law Enforcement Team was sent to the Congress Elementary School District Board on December 12, 2007 regarding allegations that the Board has violated the Open Meeting Law. One of the three allegations was found to have violated the Law. The letter totaled six pages; what follows is a summary.
Allegation 1: The Board violated the Open Meeting Law by failing to post adequate notice of its July 10, 2007 meeting scheduled for 2 p.m. at the school because the front gates were locked and the school appeared to be closed.
Allegation 2: The Board violated the Open Meeting Law by prohibiting a member of the public from speaking at the August 8, 2007 meeting during the Public Comment segment.
Allegation 3: The Board conducted a meeting outside of a regularly scheduled meeting without following any of the requirement of the Open Meeting Law.
The Arizona Agency Handbook defines the scope of what constitutes legal action.
All discussions, deliberations, considerations, or consultations among a majority of Board members regarding matters that may foreseeably require final action or a final decision are considered “legal action” and, therefore, must be conducted in a public meeting or executive session in accordance with the Open Meeting Law. Ariz. Att’y Gen. Ops. 75-8, 17904. See also §§ A.R.S. 38-431.01(A),-43(3).
Each of the three elements that constitute a meeting were present here. With regard to the third element, the Board members discussed a variety of topics including matters that might forseeably come before the board.
This investigation is not the first time the Open Meeting Law Enforcement Team has found Open Meeting Law violations against the Board. In December 2002, the Open Meeting Law Enforcement Team sent a Letter of Concern to the Board finding violations of Open Meeting Law provisions related to agendas, meeting minutes and executive sessions. At that time, the Board agreed to receive Open Meeting Law training in response to the Letter of Concern. Although none of the issues in the Letter of Concern were raised in this complaint, the Board should have had a heightened awareness of its obligation to comply with the Open Meeting Law and avoided in engaging in conduct that could be construed as an Open Meeting Law violation.
As an alternative to initiating a civil enforcement action against the Board in Superior Court, the Open Meeting Law Enforcement Team recommends that the board enter into a Consent Agreement requiring compliance with both of the following:
1. Place on the agenda for the next regularly scheduled Board meeting after the execution of the Consent Agreement, the item “Congress Elementary School District Governing Board Open Meeting Law Enforcement Team Investigation Report (“Report”). At the meeting the Board shall discuss the results contained in the report and during a Call to the Public segment invite the public to comment on the Report or any other Open Meeting Law concerns. Any issues identified by the public that demonstrate an ongoing or unresolved Open Meeting Law matter shall be placed on a future regular meeting agenda for discussion and resolution. Prior to and at the meeting, the Board shall make a sufficient number of copies of the Report as well as copies of the recording or a transcript of the recoding of the 45 minute discussion that was held on September 12, 2007.
2. Board member shall participate in Open Meeting Law training within ninety (90) days from the execution of the Consent Agreement. The training shall be provided by an attorney who is knowledgeable of and has expertise with the Open Meeting Law. The training shall cover all requirements of the Open Meeting Law with particular emphasis on tracking precautions to avoid situations that are or could be construed as meetings in violation of the Open Meeting Law. Prior to the training, the Board shall submit to the Open Meeting Law Enforcement Team for approval, the name of the trainers, the trainer’s outline or syllabus and any materials the trainer intends to use as part of the training.
Please notify the Open Meeting Law Enforcement Team within fourteen (14) days from the date of this letter or fourteen (14) days following the Board’s next regularly scheduled meeting, whichever is later, whether the Board agrees to enter into a Consent Agreement. If the Board chooses not to enter into a Consent Agreement, the Attorney General’s Open Meeting Law Enforcement Team reserves the right to file a complaint in Superior Court and seek appropriate orders against the Board pursuant to A.R.S. § 38-431.07(A), including the imposition of monetary penalties and removal from office.
[As of the date of this report, the Congress Elementary School District Board has not yet agreed to enter into the Consent Agreement; thus the Attorney General’s Open Meeting Law Enforcement Team is waiting for a reply within fourteen (14) days from the next regularly scheduled meeting which will be held on January 9, 2008 at 7:00 p.m. at the Congress Elementary School. -- Dave McLane]
[Ooops, mistake! While the Calendar put out by the Water District says January 9, 2008 at 7:00 p.m., the minutes of the December meeting and the Agenda posted at the Post Office say January 9, 2008 at 6:00 p.m. Not 100% sure which is correct, but to make sure I would be there at 6:00 p.m. I will. --Dave]
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