Town Accepts Rebuff For Illegal Meeting

Councilors mingle apology with indignation in reacting to Attorney General's finding the council lunch fete violated law

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Expressing both apology and indignation, Payson town councilors accepted a public wrist slap by the Arizona Attorney General's Office for violating the state's open meeting law.

The council agreed to undergo a fresh round of training in the details of the law intended to make sure councils conduct their business in public.

In addition, the council agreed to improve the accuracy of the minutes of its meetings and to file quarterly reports demonstrating the town's compliance with state laws intended to make sure the council didn't make backroom deals on policy issues outside of public view.

The action on a 7-0 vote came in response to an investigation by the state Attorney General's office concerning an illegal lunch meeting at which the previous town council last fall discussed wholesale changes in town government that led to the resignation of the town manager and the elimination of the human resources department, in part to enable the council to force the resignation of the director of that department.

The state investigation concluded that the meeting at the League of Arizona Cities and Towns in Scottsdale violated state law. In addition, the investigator found incomplete and misleading accounts of the council's actions concerning the buyouts recorded in subsequent minutes of the public meetings.

Three of the current council members -- Mayor Kenny Evans, Rick Croy and Michael Hughes -- were not on the council at the time of the violation. However, they also agreed to undergo training in the open meeting law.

The members who did attend the illegal meeting had varying reactions.

"I was part of that improper meeting," said Councilor Ed Blair. "I apologize for the inappropriateness of my participation," he said.

However, he noted that the town attorney had advised the council that the attorney general's office had in the past not paid much attention to whether a council quorum discussed town business when council members gathered at the statewide convention of town officials.

"That League of Cities meeting just lends itself to some discussion," said Blair.

Councilor Mike Vogel, who participated in the illegal meeting, said he would vote to accept the penalties proposed by the Attorney General's office, but described as "ridiculous" the law designed to prevent the council from making its decisions behind the scenes.

The law prevents a voting majority of the council from discussing an issue on which the entire council will later have to vote, unless that discussion takes place at a public meeting with an agenda issued in advance. The law also allows the council to meet behind closed doors to discuss personnel matters, legal strategy and contract negotiations, providing the discussion takes place at published meeting with an official agenda.

"I'm going to vote for (the motion), but I want to point out how ridiculous this law is," Vogel said.

As an example, Vogel cited concerns with whether two council members could eat dinner in the same restaurant without violating the open meeting law.

In fact, the law only applies to a quorum of the council discussing town business -- and would have no impact on anything two or even three council members discussed nor on any non-policy discussions involving the entire council. Council members could violate the law if one council member polled other members of the council on how they were going to vote on an issue and in the process indicated how a majority of the council members intended to vote.

Vogel said that anyone who attended an Arizona League of Cities convention that often draws quorums of many different councils could stand and watch "50 violations" of the open meetings law take place.

However, the investigator for the Attorney General's office concluded that the luncheon session in which the entire council discussed a reorganization of the town staff clearly violated the law. The law contains provisions to reverse the results of the illegal meeting, which in this case included the resignations of two high-level town employees with buyout provisions that kept them on salary for six to eight months, although they weren't working.

The discussion of the provisions of the law revealed continued uncertainty on the part of some council members as to what constitutes a violation.

"If my wife and I are eating dinner in a restaurant and Mike and his wife are on the other side of the restaurant, do I have to leave?" asked Blair.

Town Attorney Sam Streichman said such a coincidence of council members in a restaurant would not violate the law.

"If you talked about the Diamondbacks and how well they were doing, it would be all right," said Streichman.

"It would not be all right," quipped Mayor Evans, "because it would not be true."

Streichman noted that the council members must be careful about any discussion about town business with any more than four other council members, whether they were all in the room at the same time or simply talking about how to vote in a way that communicated how a majority of the council members intended to vote.

Blair then asked whether he should find out whether a resident had talked to other council members before he discussed particular issues coming up for a vote with that citizen.

Streichman said the discussion would only violate the law if it revealed the voting intentions of a majority of the council were revealed.

"What you can say is ‘if you've talked to other council members about how they're going to vote, don't tell me about it'" said Streichman. "I think you're allowed to talk to citizens about issues -- that's your job."

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