Payson Struggles With Open Meeting Law

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Payson last week dramatically changed its process for setting the agendas for council meetings to avoid the off chance of violating the state’s open meeting law, which the town had been repeatedly reproached by the attorney general for flaunting.

The new system will leave it up to Payson Mayor Kenny Evans to decide what will go on the council agenda, although he will put on the agenda any specific topic any other council member requests.

The current system relies on a pre-meeting meeting involving the mayor and two other council members to decide on the agenda, including what items go on the consent agenda — which means they get approved on a block vote without discussion.

“The attorney general’s office has a very broad, expansive view of the open meeting law,” said Town Attorney Tim Wright. “They said that if all you’re going to do at the agenda-setting meeting is say ‘this is going to be on the agenda,’ then what is the point of the meeting? But if you nod your head, then they say that’s communicating.”

“It’s the prudent thing to do” to change the policy, said Evans. “But with a silly attorney general’s ruling, I don’t know what to suggest.”

The more formal agenda-setting process dates back several years to a period when town politics often generated heated arguments and charges that the mayor wielded too much power. So the council started having meetings to talk over what items to put on the agenda, although individual council members could insist on any topic getting added to the agenda.

That open-ended process contrasts with some agencies like Gila Community College, where the board chairman retains near-dictatorial power over the agenda. In that case, board members have complained that the chairman sometimes flatly refuses to put certain topics on the agenda.

However, Payson has repeatedly run afoul of the state’s open meeting law.

Several years ago, the attorney general’s office ruled that the council had violated the open meeting law by gathering at a council luncheon at an Arizona League of Cities and Towns meeting in Payson. At that luncheon, the council discussed overhauling key positions at town hall. After that meeting, then-mayor Bob Edwards convinced then-town manager Fred Carpenter to retire early and laid off the personnel director.

The attorney general’s office concluded that the meeting violated the open meeting law, which is designed to ensure that all elected bodies openly discuss and publicly decide on public policy. The meeting law has narrow exceptions for things like receiving legal advice and certain personnel matters. In the case of personnel issues, the open meeting law protects the privacy of the employee, not the council.

The open meeting law also prevents council members from talking to one another privately to come to an agreement on how they’ll vote in the public session. A council member can even violate the open meeting law in an e-mail if he indicates how he’s going to vote and passes that e-mail along for comment to a majority of the council.

That prohibition on discussing issues and comparing votes before the meeting posed complications for the council’s agenda-setting meetings, which involved discussions of three of the seven council members. If during that discussion three council members indicated to one another how they were likely to vote on an item added to the agenda — and communicated the consensus to one more council member — it could effectively violate the law.

Councilor John Wilson said he’d always found the agenda-setting meetings useful to get information about upcoming issues — especially when he had to go on the radio to talk about town business before the council meeting.

“After the meetings, I know what’s coming up — so I don’t sound like a complete idiot —just a partial idiot. I can touch base with the boss (the mayor) so I won’t say wrong things on the radio.”

Councilor Carpenter said that without the agenda-setting meetings, the council should be more careful about what items go on the consent agenda, which means they’ll get passed without discussion or much explanation to the public.

“I certainly don’t want any more work,” said Evans, “but we’ll figure out how to deal with that.”

In the end, the council voted unanimously in favor of a motion suggested by the town attorney that would essentially leave it up to the mayor to devise a new system for setting the council agendas.

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