Arizona Eagletarian

Arizona Eagletarian

Monday, February 2, 2015

Does the Legislature know it is now in violation of the Arizona Open Meeting Law? UPDATED 11:55 pm MST 2-2-15

It's the day after #SB49... (Senate Bill 49?)... er, the Super Bowl and now we get to see if they will dare to try another run at SB1062 style religious discrimination (primarily against LBGTQ people) based on Cathi Horrid's Christian Dominionism.

Even if they don't there are still quite a few measures being introduced to limit genuine civil rights and keep all but the rich and powerful cowed and overwhelmed.

First, last week I told you about HB2128. Today, the House Rules committee determined that the bill was constitutional and in proper form. That's really all the Rules committees are supposed to do anyway. So, the Hatemonger Tax Giveway Act of 2015 is now awaiting floor debate and a final vote in the House.

I haven't found the successor bill to last year's SB1062 yet, but I have found others that raise serious concerns.

Last week we received word that the AZ House had changed its rules to allow for closed caucuses, meaning that since the GOP caucus is a majority of the chamber, meeting behind closed doors is now a violation of the Arizona Open Meeting Law. That the public is now not be allowed to either observe or find out through official channels what they conspire about is and should be ALARMING. The Republic reporter who wrote the story claims both sides "took turns grandstanding after the vote."

There they go again on the false equivalence bullshit. We really must insist corporate media tell the truth instead.

Knowing the legislature has set itself up for problems, Sen. Sylvia Allen (R-LD6/Snowflake) has now introduced SB1435 apparently hoping to head those problems off by dramatically altering the Open Meeting Law. Her bill will change the definition of "meeting."

If enacted, the Not Quite As Open Meeting Law will only require disclosure/open meetings if the public body actually makes a decision or takes action. In pertinent part, the bill also adds a definition of "action."
1.  "ACTION" MEANS THE CONDUCTING OF THE OFFICIAL BUSINESS OF A PUBLIC BODY AT WHICH LEGAL ACTION IS TAKEN. [...]
4.  5.  "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 IS TAKEN.
In other words, ALL public bodies in Arizona would be allowed to do anything they wanted behind closed doors, except for taking official votes. They could do all sorts of conspiring behind the backs of the public. Of course, the GOP caucuses of the legislature already do that. But this bill, massive unintended consequences notwithstanding, seems blatantly intended to keep the Lege from being sued to discontinue the closed caucuses.

Besides further empowering the GOP dominated legislature to conspire against the people of Arizona, other likely unintended consequences arise like Pandora's Box on steroids when you consider how easy it is to get a quorum together of the many small public bodies in our state. From the Arizona Corporation Commission (a quorum is only three commissioners), to the Independent Redistricting Commission (remember the fuss over alleged Open Meeting violations in 2011?), to hundreds of city and town councils, school boards, special taxing district governing boards and boards of county supervisors.

Again, WTF was she thinking? And more importantly, are you going to let her, and Andy Biggshot and David Gowan (the new House Speaker) get away with this??? Here's the statutory language declaring the intent of the Arizona Open Meeting Law, in ARS § 38-431.09:
A. It is the public policy of this state that meetings of public bodies be conducted openly and that notices and agendas be provided for such meetings which contain such information as is reasonably necessary to inform the public of the matters to be discussed or decided. Toward this end, any person or entity charged with the interpretations of this article shall construe this article in favor of open and public meetings.
B. Notwithstanding subsection A, it is not a violation of this article if a member of a public body expresses an opinion or discusses an issue with the public either at a venue other than at a meeting that is subject to this article, personally, through the media or other form of public broadcast communication or through technological means if:
1. The opinion or discussion is not principally directed at or directly given to another member of the public body.
2. There is no concerted plan to engage in collective deliberation to take legal action.
There doesn't seem to be much ambiguity in that language, does there?

Currently, legislative caucus meetings DO have published agendas. But the entire intent of SB1435 appears to be to allow the Republicans to circumvent the underlying intent of the Open Meeting Law.

In 2011, then Phoenix city attorney Gary Verburg made a presentation to the Fountain Hills Town Council on the Open Meeting Law.
He covered that the open meeting law applies to all governing bodies; the public policy behind the open meeting law is to conduct public business in the public, and to make decisions in front of the public with decisions not made secretly. He stated that all interpretations of the open meeting law favored open and public meetings; the Attorney General’s office to the extent that they see an ambiguity in the law, noting that the courts are somewhat deferential to the law as well, will error on the side of disclosure. Their viewpoint was that if the law was ambiguous, the public policy is that there should be disclosure to the public and therefore, they would interpret the law that way. [...]
Councilmember Dickey asked since all public bodies were subject open meeting laws if the state legislature operated under the same rules. Mr. Verburg confirmed that the law did say legislature but the difficulty with the legislature was that it was hard to get a quorum of them to meet in secret. He stated they were to conduct their meetings in the public.
Well, in 2015, the legislature (both chambers, though the Senate did so before 2015) has solved that problem. And the intent of SB1435 is to solve one foreseeable problem. But I'm wondering how much thought any of them gave to the problems and issues that will certainly arise if they succeed in protecting themselves from citizens who may take legal action to prevent them from having those closed caucus meetings.

Here's more of the language in the Open Meeting Law:
A. All meetings of any public body shall be public meetings and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings. All legal action of public bodies shall occur during a public meeting.
B. All public bodies shall provide for the taking of written minutes or a recording of all their meetings, including executive sessions. For meetings other than executive sessions, such minutes or recording shall include, but not be limited to:
1. The date, time and place of the meeting.
2. The members of the public body recorded as either present or absent.
3. A general description of the matters considered.
4. An accurate description of all legal actions proposed, discussed or taken, and the names of members who propose each motion. The minutes shall also include the names of the persons, as given, making statements or presenting material to the public body and a reference to the legal action about which they made statements or presented material.
So, how "awkward" is it for the legislature to even be doing closed caucuses, let alone trying to prospectively circumvent any citizen action to hold them accountable for compliance with the law?

If corporate media doesn't make a stink about this bill, then they will have failed you and me.

This by no means is the only troubling legislation on the table this year. But really, can we allow them to get away with conspiring behind closed doors with a quorum of members?

UPDATE           UPDATE           UPDATE

H/T to Donna Gratehouse of Democratic Diva for this reference, text in ARS § 38-431.08, which states in pertinent part,
     A. This article does not apply to:
1. Any judicial proceeding of any court or any political caucus of the legislature.
That, of course, does NOT change the stated intent of the Open Meeting Law (cited above). But it then does broaden the apparent intent by Ms. Allen. As she has been a member of the Navajo County Board of Supervisors, perhaps it is there that she wants to make back room deal making lawful.

It also lets corporate media off the hook (not in my eyes). They probably won't push this issue because at some point in the past, they exempted themselves.



1 comment:

  1. As you pointed out, all the Republican House Caucus needs to do is "declare" a quorum, vote on whatever they just discussed and bam, the Democrats don't even get recorded. They have never liked the fact that the Democrats in the Legislature actually have a small voice, let alone the ability to vote, and this would allow them to completely shut out the Democrats.

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