Michael A, Curtis Susan D. Goodwin Kelly Y. Schwab Of Counsel Joseph F. Abate Patricia E. Ronan The Law Offices of CURTIS, GOODWIN, SULLIVAN, UDALL & SCHWAB, P.L.C. 501 East Thomas Road Phoenix, Arizona 85012-3205 Telephone (602)393-1700 Facsimile (602)393-1703 E-mail sgoodwin@cgsuslaw.com www.cgsuslaw.com William P. Sullivan Larry K. Udall Phyllis L.N. Smiley Trish Stuhan REFER TO FILE NO,1987-1 August 12, 2014 Gilbert Davidson, Town Manager Town of Marana 11555 West Civic Center Marana, AZ 85653 Re: Open Meeting Law Violations Dear Mr. Davidson: As you were previously advised by Frank Cassidy, Town Attorney, we were requested to review a July 28, 2014 email from Councilmember Roxanne Ziegler to Councilmembers David Bowen, Jon Post and Herb Kai related to the Heritage Farm Park matter. In order to avoid any possible criticism regarding the handling of this matter by the Town Attorney's office, he referred the matter to this office and gave me full and independent authority to handle it as I see fit. He specifically did not want to receive any recommendations from me but rather asked that I deal with it as though I were him. In accordance with the above, I interviewed Councilmembers Ziegler, Bowen, Post and Kai and prepared the enclosed report, which includes findings of two open meeting law violations. I recommend that the July 28, 2014 e-mail be made available to the entire Council and the public at both the next meeting at which the Heritage Farm Park matter is discussed and at the meeting at which final action is taken on the matter. A short cover memorandum with the July 28, 2014 e-mail is enclosed for the use of the Town Clerk when preparing the Council packet. I also recommend that the Council be provided with training on e-mails and serial meetings. The reasons are set forth in the report. Please do not hesitate to contact me if you wish to discuss the enclosed. Vejy truly yours, Susan D. Goodwin For the Firm
Gilbert Davidson, Town Manager Town of Marana August 12, 2014 Page 2 SDG/mjw Enclosures: Report Cover Memorandum and E-mail cc: Frank Cassidy, Town Attorney (w/enclosures) File: 1987-001-0000-0000; Desc: DavidsonG OML Violation 8-11-14; Doc#: 200404vl
Report of Special Counsel to the Town Manager: Open Meeting Law Violation August 12, 2014 I was asked to review an email dated July 28, 2014 e-mail ("e-mail") from Councilmember Roxanne Ziegler to Councilmembers David Bowen, Jon Post and Herb Kai regarding the Heritage Farm Park matter, to determine whether sending the e-mail constituted an open meeting law violation, and, if so, to determine what steps should be taken. I interviewed Councilmembers Ziegler, Bowen, Post and Kai and asked each the same questions related to the e-mail and references in the e-mail to agreements, plans, votes and earmarking funds because these terms could refer to prior discussions among a majority of the Council or to proposals submitted by Councilmember Ziegler to three other members of the Council. I also reviewed the minutes of the June 24, 2014 study session and the July 1, 2014 Council meeting. Conclusions: The open meeting law prohibits both (i) discussions among a quorum of the Council regarding matters reasonably foreseeable to come before the Council and (ii) proposals by one Councilmember to three other Councilmembers regarding a matter that is reasonably foreseeable to come before the Council. Even if there is less than a quorum present at any one time, if subsequent discussions result in a quorum being involved in the discussion, that would constitute a serial meeting. Gatherings of a quorum of the Council, whether serial or not, at which matters reasonably foreseeable to come before the Council are discussed constitute "meetings" as that term is defined in the open meeting law, requiring that the discussion be properly noticed. Based on the interviews, it appears that the references in the e-mail to "agreements", "plans", "votes" and "earmarking" were Councilmember Ziegler's conclusions from prior discussions at public meetings or one-on-one discussions (but not serial meetings). Nevertheless, I identified two open meeting law violations. 1. Sending the July 28, 2014 e-mail by Councilmember Ziegler to three other Councilmembers was a violation of the open meeting law because it proposed certain actions on matters reasonably foreseeable to come before the Council. 1 2. Councilmember Bowen had one-on-one discussions with the Mayor and Councilmembers Ziegler, Post and Kai after the July 1, 2014 Council meeting regarding the Heritage Farm Park matter. This violated the open meeting law because they serially involved a 1 A.R.S. 38-431(4) provides that "meeting" means the "gathering, in person or through technological devices, of a quorum of members of a public body at which they discuss, propose or take legal action, including any deliberations by a quorum with respect to such action.
quorum of the Council and were related to a matter reasonably foreseeable to come before the Council. Observations: There is a misunderstanding by at least two members of the Council regarding what is prohibited by the open meeting law. Specifically, there is not a good understanding of what constitutes a "serial meeting" and that a "serial meeting" may take place even in the absence of a discussion of a vote. Recommendations: 1. At the next meeting at which the Heritage Farm Park matter is on the agenda, the July 28, 2014 e-mail should be placed in the Council Packet and be available to the public. In addition, at the meeting at which the Heritage Farm Park matter is on the agenda for a final vote, the July 28, 2014 e-mail should be placed in the Council Packet and be available to the public. Enclosed is a short statement that can go with that e-mail in the Council Packet. 2 2. Although we are sure that the Council has had prior open meeting law training, we recommend that training on the specific issues of e-mails and serial meetings be held for all Councilmembers. Two of the Councilmembers interviewed suggested this also. Either the Town Attorney or I could conduct that training. Susan D. Goodwin Curtis, Goodwin, Sullivan, Udall & Schwab, PLC 2 Even though there was a violation of the Open Meeting Law by sending the July 28, 2014 e-mail, that violation does not prohibit subsequent final action on the matter. See Valencia v. Cota, 126 Ariz. 555, 617 P.2d 623 (App. 1980). The Attorney General's Office Handbook recommends that in that case, before taking final action at a subsequent lawful meeting the e-mail should be made available at that time and the substance of all discussions that took place at the earlier unlawful meeting. File: 1987-001-0000-0000; Desc: Report to Town Manager 8-11-14; Doc#: 20039W1
The attached email dated July 28, 2014 from Councilmember Ziegler to Councilmembers David Bowen, Herb Kai and Jon Post on July 28, 2018 constituted a violation of the Open Meeting Law for the reason that it proposed certain actions by a majority of the Council outside of a publicly noticed Council Meeting. This document is being made available to the Council and members of the public prior to a final action being taken on the matter. File: 1987-001-0000-0000; Desc: Insertion into Council Packet 8-11-14; Doc#: 200401 v l
Original Message From: Roxanne Ziegler [mailto:roxannez2000@yahoo.com] Sent: Monday, July 28, 2014 9:32 AM To: Herb@kaifarms.com; David.bowen@lpl.com; ionpost@aol.com Subject: Marana Hertiage Park - STOP THE MADNESS Hi boys, Per Dave's call to all of us last week, it looks like we all agree the Heritiage Farm discussions need to stop for now. And we can do that with our votes at the 8/5/14 meeting. As Jon and I agree, if we see or hear one more pressentation on the park I will barf and Jon is going to man-handle someone!! No one needs to see this. Our plan is to get he park paid for through bond money from the county in the next bond election be it 2015, 2016 or whenever. When the time is right, we may make a trip downtown and talk to Huckelberry & Sharon Bronson and tell them we will support the bond effort i f they will support our park. But these discussions are a ways off. So, we'll listen to what should be the last presentation on the park at our next meeting - and after discussions, if possible let Patty, Eddie or Carol make the motion to approve. And then the four of us will cast our. vote to stop this once and for all. As a side note, Jon pointed out that any park impact fees can be used for the park if desired, or if we want to throw them a bone, we could earmark $50-100K to make the park "shovel-ready" in case we get the bond funding. But other than that, we're done. We have to do it at this next meeting - this item has leggs. Staff and others talk as if it was a done deal. Reference Gilbert's latest email regarding the fall festival. Hope you are having a good summer. XOXOXO Rox