Payson Councilor Steve Smith on June 12 filed an open meeting law violation complaint with the Arizona attorney general against the mayor and three council members.
Smith alleges an email with a series of questions about broadband sent to Mayor Tom Morrissey, Vice Mayor Janell Sterner and Councilors Suzy Tubbs-Avakian and Jim Ferris from Greg Friestad, a member of the Broadband Consortium Tech Committee, broke the open meeting law (OML).
“(The four council members) were very coordinated,” in their comments at the meeting, said Smith. “I have been in a lot of executive level meetings. When I see that type of behavior, I know people have coordinated. They have an agenda.”
Contacted by email, Morrissey said, “I haven’t seen councilor Smith’s complaint and can’t comment on it until I know more about it.”
Tubbs-Avakian said she could not recall seeing the email.
“I told the people I would not vote on something I do not have enough information about,” she said.
The other council members did not respond before the Roundup went to press.
On May 30, the council voted 4-3 on whether to create a $90,000 placeholder in the budget for a broadband contract with Cable One, the company proposing to build a resilient internet connection from Show Low to Phoenix.
Friestad’s three-page memo asked a series of questions about the proposed contract and whether the town would benefit from its investment. Cable One said in return for the annual pledge, it would provide the town with 2 gigs of internet service for the next 20 years.
The four who received the email all voted against the budget placeholder.
However, Councilors Chris Higgins, Barbara Underwood and Smith all voted to move forward with the placeholder. None of them received the email from Friestad.
Smith said he found out about the email during a meeting with Town Manager LaRon Garrett on May 31.
“I went in the next day to the town hall to LaRon. I said, ‘You know something has been funny about that meeting. It’s been on my mind,’” said Smith. “He said, ‘You know where they got all their questions? They got all their questions from the email from Greg Friestad.’ I said, ‘Really. I didn’t get an email.’”
The town clerk monitors emails sent to councilors to make sure they do not violate the OML.
According to the law, the OML is not violated if a member of the public emails a quorum of the council and there are no further emails among board members.
“The available case law and Arizona’s statutory language indicate that a one-way communication by one board member to other members that form a quorum, with no further exchanges between members, is not per se a violation of the OML ... in addition, passive receipt of information from a member of the staff with nothing more does not violate the OML,” according to a 2005 attorney general opinion.
But the legal waters muddy when that email seems to have influenced the actions of the council.
“A communication that proposes legal action to a quorum of the board would, however, violate the OML, even if there is no exchange among the members concerning the proposal,” states the 2005 attorney general opinion.
The email from Friestad lists a series of questions about broadband, such as who is the “mystery” donor that made the cable possible and why should the town invest in broadband if homeowners do not see improved internet service.
Smith said the video of the May 30 meeting clearly shows all four councilors used the memo to frame their questions for Dan Conrad, the general manager and director of Cable One and Kenny Evans, president of the MHA Foundation.
The MHA Foundation has pledged $2 million to help cover the cost of stringing a broadband cable between Show Low and Payson.
“Jim Ferris is flipping through pages on the video,” said Smith. “You can time stamp the questions to the presentation.”
Smith called the alleged coordinated communication “a hub and spoke meeting violation.”
“The hub was Greg Friestad. The spokes were those on the email,” he said.
Not only were the four council members copied on the email, so were Jim Muhr and Ken Woolcock.
Those two men, who along with Friestad and Morrissey, have formed an ad hoc committee to explore building a road to connect Green Valley Park to the Payson Event Center.
In his memo on broadband, Friestad said, “just some thoughts and questions about the Kenny plan. We must not let them use budget funds from the Green Valley Parkway extension or the splash pad for the Kenny plan.”
“Could this be an open meeting of the ad hoc committee?” said Smith. “They have been meeting in (Morrissey’s) office frequently about who knows what. Then all of a sudden they have this new agenda item about the road.”
Smith confirmed he added Muhr to his OML complaint. and approached Town Attorney Hector Figueroa about his concerns.
“He said, according to his policies he has to investigate. He represents the town. He can’t advise somebody to file against the town,” said Smith.
But Smith feels he had to do something.
“I’m being transparent,” he said. “I’m not going to let these people violate the trust they have been entrusted with by operating this way.”