HomeMy WebLinkAbout2011.0809.TCWSM.Minutesz:\council packets\2011\r9-15-11\110809wsm.docx Page 1 of 9
TOWN OF FOUNTAIN HILLS
MINUTES OF THE WORK STUDY SESSION
OF THE FOUNTAIN HILLS TOWN COUNCIL
AUGUST 9, 2011
AGENDA ITEM #1 - CALL TO ORDER AND ROLL CALL
Mayor Schlum called the meeting to order at 5:35 p.m. in the Town Hall Council Chambers.
ROLL CALL:
Present for roll call were the following members of the Fountain Hills Town Council: Mayor Schlum, Vice Mayor
Contino, Councilmember Leger, Councilmember Hansen, Councilmember Brown, Councilmember Elkie and
Councilmember Dickey. Interim Town Manager Julie Ghetti, Town Attorney Andrew McGuire, and Town Clerk Bev
Bender were also present.
Councilmember Brown was absent.
Mayor Schlum announced that Councilmember Brown was out of the Country so the Work-Study Session was being
recorded so that he could witness it first-hand as well.
AGENDA ITEM #2 – PRESENTATION AND TRAINING SESSION BY GARY VERBURG, PHOENIX CITY
ATTORNEY, RELATING TO THE ARIZONA OPEN MEETING LAW.
Mayor Schlum welcomed Mr. Verburg noting that Mr. Verburg’s PowerPoint presentation (copy of file in the Town
Clerk’s office) had been printed out for the Council and that the presentation could be found on the Town’s website in the
Town Council packet. He encouraged the public to take a look at that presentation as it was an interesting topic that was
unique to public bodies.
Phoenix City Attorney Gary Verburg addressed the Council and asked how many councilmembers had attended open
meeting law training in the past; all Councilmembers present indicated they had. Mr. Verburg indicated that this then
would be more of a refresher course for them.
Mr. Verburg said he would be providing the Council with an overview and that presentation that they were about to see he
had given to the City of Phoenix Council about 2 ½ years ago. He explained that the Attorney General’s office was
concerned about people understanding the law and their motivation was to get people educated He stated the same thing
had happened to the City of Phoenix Council in the past as well. He gave an overview of the relationship between the city
attorneys and the Attorney General’s office. He stated that city attorneys were practitioners in the open meeting law at
every single meeting that they attend with questions often coming up unexpectedly that the city attorney may have to
address and they have to apply the law very quickly. He said it had been his experience with the Attorney General’s
office that most of the people on Open Meeting Law Enforcement Task Force (OMLET) really had not had the experience
in dealing with governing bodies and applying the open meeting law. He noted that as a consequence oftentimes they had
differences of opinion, which was not unusual for lawyers. He indicated that he would be talking about best practices that
he thought would be important to learn.
Mr. Verburg gave a brief overview of his professional background noting that he has had quite a bit of experience in this
area. He stated that he is currently the City Attorney for the City of Phoenix and has been for the past twelve years, he has
been practicing law since 1978, prior to this position he was the City Attorney for Glendale (3 to 3 1/2 years), and before
that he had been in private practice in Arizona with a large part of that practice similar to what Mr. McGuire does (i.e.
provides legal services to small cities and Indian tribes). He commented that he had provided services to the Town of
Paradise Valley and City of Williams.
Mr. Verburg reviewed the PowerPoint (copy of file in the Town Clerk’s office). 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
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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. He explained that the Attorney General’s office is the agency that has
been given the authority to enforce the law so it was important to know what their perspective is, particularly when talking
about safe harbors or best practices.
Mr. Verburg discussed that all public bodies must comply with the open meeting law. He clarified that with regard to
subcommittees or advisory committees (or things of that nature) the open meeting law applies to them as well. He
acknowledged that sometimes it might be a bit confusing such as a task force consisting of some councilmembers and
some staff, whereby it might be tricky to answer; he stated he would not get into that too much unless there was a specific
question.
Mr. Verburg continued his overview stating that public bodies must allow interested persons to attend and listen to their
deliberations and proceedings. He discussed remote meetings with the point taken that local residents should be able to
attend and hear the deliberations and proceedings. He noted that although he has not seen a challenge based upon a
Council holding a remote meeting, he was bringing that forward as a potential issue and he advised his clients that was
best not to do that. He discussed that occasionally Councilmembers may want to go on retreats, which was not a bad idea,
but he wanted the Council to be aware that some people may complain that they did not have access to the Council and
their discussions and that there was a potential for public criticism. He clarified that he was not sta ting retreats were a
violation of the law but he had brought it up as a best practice that some people may complain if the Town engages in that
type of venue (shifting of where meetings are held and when they don’t meet).
Mr. Verburg stated that the open meeting law requires that the public body take all legal action in public; he provided a
definition of “legal action” as being anytime the public body acts in any way that takes official action ; he clarified formal
action approved by City Council as certain actions, transactions, acquisitions, purchases, ordinances, resolutions, etc. He
noted that there may be times when no action is taken by the public body and that there may be some vagaries about
whether there was an open meeting law violation or not. He stated that minutes must be taken at all open meetings and
meeting notices must be posted at least 24 hours in advance.
Mr. Verburg defined a public meeting as a gathering of a quorum of members and pointed out that it did not require that
simultaneous participation of members occur, it might include separate or serial discussions, and it is not when members
merely hear or read a comment, including a proposal for legal action made by another member of the media. He referred
to and discussed a prior Scottsdale issue with their city attorney who had advised the Scottsdale City Council that making
announcements in the media might be a violation of the open meeting law due to an Attorney General Opinion that stated
if there was any communications between councilmembers, regardless of the form of technology used, and a quorum of
them heard it and reacted to it, that it could be an open meeting law violation. As a consequence there had been some
controversy over that, which led to an amendment to the open meeting law that clarified public announcements to the
media would not be considered violations of the open meeting law. He stated that he had had a contrary opinion than the
Scottsdale city attorney and he had never believed that public announcements were a violation of the open meeting law,
which showed there was a difference of legal opinions among attorneys. He continued stating that a meeting could take
place in person or through technological devices noting that the open meeting law applied to discussions and
deliberations. He pointed out that it required an exchange between members and collective activity. Oftentimes a
councilmember may pronounce a position or that they want an item on the agenda and he stated that was not really a
discussion or an activity, even though the suggestion of an item might suggest that this was an issue the city needed to
face. But that would not be considered an open meeting law violation because there was no discussion and not collective
action when that type of conduct occurs.
Mr. Verburg stated that proposals did not require collective action and could be a one-way communication. He gave two
examples:
#1: Councilmember Dennis Brown will not be here today. If that were communicated broadly to all of the Counci l from
one member to another that was not a discussion or deliberation and was a statement of fact; it was n ot even a proposal
and would not be a problem if that type of communication occurred.
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#2: We should install a crosswalk where Councilmember Smith was hit by a car. In this instance a proposal was being
made and that alone would not be an open meeting violation problem, but if Councilmembers started talking about it
through the e-mails or calling one another and then a quorum discussed that topic t hen the line had been crossed where an
open meeting issue might occur.
Mr. Verburg suggested a best practice would be to not discuss things in e-mails; it is too easy to unintentionally
communicate with one person who then forwards it to another, not knowing that person may forward it to another when
they don’t even know that a quorum has read a communication. He said this would be an inadvertent mistake, and the
best way to avoid an inadvertent mistake, is to not use e-mail to discuss items. Councilmembers would be better off, if
you have to talk to someone, to call them on the phone and make sure they have not spoken to the others about that topic.
Mr. Verburg defined legal actions as the collective decisions, commitments or promises made by a governing body.
Mr. Verburg discussed executive sessions noting that the public for one reason or another does not like executive session
and they ask what is happening behind those closed doors. He explained that executive sessions were a recognized
exception in the open meeting law because the public policy of the State (across the country) realizes that certain types of
discussions and deliberations should be held in private or in confidence and that was for the benefit of the public body.
He stated that executive session law allowed officers, appointees, employees, and those reasonably necessary to carry out
executive session responsibilities to attend the session. He pointed out that this was an area where city attorneys
oftentimes will have a disagreement with the Attorney General’s office; however, he felt it important for the Council to
understand why that disagreement existed and again what the best practice is to avoid it. Because of this provision
oftentimes staff, in technical matters such as construction, design defects, etc., will be more familiar to provide
background information and a framework than the attorneys sitting in executive session from which the legal advice will
be given. He stated the opinion that was a person who was reasonably necessary to carry out the executive session
responsibilities. Then the attorney should provide the legal details that relate to those facts; therefore it wasn’t unusual for
a non-lawyer speak in executive session, if it is related to the discussion that the lawyer would be providing legal advice
about.
Mr. Verburg acknowledged that was what had occurred in Phoenix and which lead to this presentation. He stated that he
had personally disagreed with the Attorney General’s office interpretation because w hen they reviewed their executive
session minutes they thought since a non-lawyer spoke it couldn’t be legal advice and he had respectfully disagreed with
their interpretation. In the end, he pointed out that the Attorney General’s office did not find an open meeting law
violation and the City was not going to say they violated the open meeting law; the remedy was that they (City Attorney)
would provide training to their Council and that was what they did. He stated the opinion that it never hurts to get training
and it was the path of least resistance and preferable over litigation. He suggested a best practice and was important for
town managers to hear: It’s probably best if going into executive session for legal advice it was better to let the lawyer
introduce the matter and explain the legal framework as to why background information is needed so the record reads
correctly. Mr. Verburg pointed out that way the minutes reflect that the lawyer is setting up the issue for the Council and
is giving the Council the reason why legal advice is going to be provided, and then it would be appropriate to have the
support staff, which are more knowledgeable about the facts in the matter, provide the background and information. He
commented that there would probably be a discussion that ensues after that, which was permissible. He pointed out that if
the minutes reflect that the city manager or support staff has spoken for 20 minutes, and in the end the attorney says we
might get sued on that, then that was probably not a good record for anyone to look at or review.
Mr. Verburg stated that an executive session must be called in public and cannot call an executive session in an executive
session; it requires a majority vote of the quorum; all minutes and discussions are confidential. He acknowledged it he
has happened to him and gave an example of a lawsuit negotiation whereby the opposing attorney knew of the city’s top
number was before he had called them. He said the only way that could have happened was a br each of this
confidentiality requirement. In that particular case the city ended up paying more money than they probably would have
had to if the confidentiality had been kept and, because there was a disclosure of that confidentiality, the city, as the
governing body was hurt in terms of an expenditure of funds. He remarked that he had provided the example to explain
why confidentiality was important and noted that lawyers cannot do their best work if the other side knows what the
bottom line position is and oftentimes a Council will go into executive session so they can instruct their lawyers as to how
they should negotiate or settle a lawsuit.
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Mr. Verburg pointed out that legal action could not be taken in executive session and explained the dilemma that exists.
While open meeting law does recognize that instruction can be given to the attorney what to do, you (the Council) can’t
take legal action, which means you can’t take a vote and there might not be clear instruction provided to the attorney so
that they know what they are to do when they leave that meeting. He discussed that there was a natural tendency amongst
Councilmembers to poll and he pointed out that can’t be done. More experienced city attorneys realize that and what they
will try to do is to get the Councilmembers to talk and then glean what he would refer to as a consensus of the discussion
or a majority of the consensus without taking a vote and going forward knowing full well that nothing was ever binding
until it came back to a public meeting and a vote was taken in a public meeting. He stated the opinion that was really the
safe guard for the public.
Mr. Verburg reviewed the seven exceptions for executive sessions under the open meeting law: (i) Employment issues for
individual employees or officer of the city noting his interpretation that it would only apply to those employees that the
City Council would have the ability to hire (i.e. attorney, manager, judge). If the Council were to talk about an existing
employee, they need to be provided a 24 hour notice that you will be discussing their employment and they a right to
demand that the discussion be held in public. He was of the opinion that if the Council wanted to bring that employee into
the executive session they could, because they were “reasonably necessary” to be present for the Council to do their
business; (ii) Discussion of records exempt from public records law or required to be confidential by federal or state law.
He pointed out that he has been practicing law for a long time and has not had this one; (iii) Discussion or consultation for
legal advice. He noted he had covered this one; (iv) Discussions or consultations with attorney about contracts, the
subject of negotiations, in pending or contemplated litigation, in settlement discussions to avoid or resolve litigation. He
pointed out that the first two seemed to be the ones used most frequently; (v) Labor negotiations with employee
organizations. He commented that he suspected that Fountain Hills did not have labor organizations but the City of
Phoenix did (i.e. collective bargaining) and his Council was very involved in those discussions and they are briefed
regularly. If the labor unions knew what the City’s position, bargaining to the City’s advantage could not take place and
that is why this was an exception to the open meeting law; (vi) International, interstate or tribal negotiations. He pointed
out that with the neighboring tribe (Fort McDowell) this Council may encounter this from time -to-time. He stated that
this would allow the Town Council to hold and executive session with the Tribal Council, which is unique ; and (vii)
Negotiations related to purchase, sale or lease of real property. He commented that with the City of Phoenix and the light
rail project there were a lot of land acquisitions, condemnations etc. so this was frequently used for them. He pointed out
that attorneys did not need to be present for this one. He said they had a real estate department that does the negotiating
and they present to the Council and that was perfectly fine.
Mr. Verburg discussed what happens if there is a violation of open meeting law. He said all legal action transacted was
null and void, but noted the public body could ratify. He explained that there was a court decision that said it was not
necessarily null and void; in certain circumstances the action is voidable. Since Council cannot take legal action in
executive session some people would say there was no violation to the law because the Council cannot take the legal
action until a public meeting is held and a public vote is taken. When the Council takes the public vote, the public is
appraised, all the required posting requirements have been met, the agenda has been set forth, and the matter is debated
and discussed in the public. In those instances, where the Court says there may have been a technical violation in the
executive session, they have the discretion to say it’s not void but that it’s a voidable act, since the Council would have
ended up complying anyway. He stated there were circumstances where ratification may be important and that would be
if you want to go back to the date of the original action that maybe was a violation of the open meeting law. The open
meeting law recognizes that you could do that and there was a ratification procedure that could be followed. He felt the
ratification procedure was probably more applicable in real life circumstances to those situations where maybe something
was not properly posted on an agenda or the discussion was in a public open meeting but often things go off in tangents
and the vote was on the tangent and not on the topic listed on the agenda. In that circumstance, ratification may be the
route to go to get back to the original date that the action was taken up on. In reality those are the factual situations
whereby the ratification process would be necessary.
Mr. Verburg continued stating that the Attorney General’s (AG) office or County Attorney (CA) could conduct an
investigation if they receive a written, signed complaint. The AG or CA could initiate their own investigation; however,
he commented that he has not known the County Attorney that has really wanted to venture into this area . He stated that
individuals could also file a lawsuit if they think there has been a violation. An action can be filed by the affected person,
AG or CA. He stated the following could occur if there was a violation: (i) the court could impose a $500 civil penalty for
each violation that would assessed against the violating individuals and was not something that the city could pay for; (ii)
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equitable relief could be ordered by a court (injunction) if there was on-going conduct of violating the open meeting law;
(iii) a political subdivision could be required to pay the attorney fees if someone brings a lawsuit and the city loses the
case; and (iv) an individual could be removed from office if there is an intent to “deprive the public of information. If
people are meeting in secret and they know they are meeting in secret and making pre-decision determinations on public
issues that are going to come before them at a future meeting and there is clear evidence of intent to do that, that
individual could be removed from office. The only situation that he could think of in practice where this had occurred
was with school boards and that he has never really seen this occur in the city context where there has been an
intentionally violation. He stated he did not know of anyone who had been removed from office by the Attorney General.
He said he mentioned it so that the Council was aware of it. If it was a particular person that was intending to deprive the
public of information that individual could be assessed the associated attorney fees and costs.
Mr. Verburg reviewed the ratification process noting that a public meeting had to be held within 30 days of the discovery
of violation, a 72-hour notice posting was required instead of a 24-hour notice, the ratification posting includes a
description of the action to ratified, clearly states that the public body proposes to ratify a prior action, and informs the
public how to obtain detained written description of the action to be ratified.
Mr. Verburg stated he was willing to take the Council’s questions and would fore go the legal rev iew section of the
PowerPoint (it would be more appropriate for staff training).
Councilmember Dickey asked since all public bodies were subject open meeting laws if the state legislatur e 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.
Councilmember Dickey noted that there were committees of the legislat ure that have as little as seven people on them
where a majority would be meeting and deciding how they would vote on a particular bill in a committee and also they
have closed caucuses once in a while, which was definitely a majority of the legislature in one room or at least a majority
of almost any committee. She questioned how that came into play when votes are counted before they actually do have
the committee meeting or floor session. Mr. Verburg said that fortunately as a city attorney he did not h ave the
responsibility of enforcing the law against the State Legislature and he read the exact definition language in Statute,
“public body means the Legislature”, noting that it went on to list all boards and commissions of the State, or political
subdivisions.
Councilmember Dickey asked for confirmation that Mr. Verburg had said with regard to land acquisitions that there may
not be an attorney present; Mr. Verburg confirmed that they did not need to be there ,but oftentimes they were present
since they may be working on the documents that need to be drafted to consummate the transaction. He commented it
was probably wise they be present so they know what the Council’s wishes are and so they know how to draft those
documents, but they don’t need to be there.
Councilmember Dickey asked how those played in with Mr. Verburg’s best practices and having the lawyer introduce the
matter and that kind of thing. Mr. Verburg noted that was a good question and explained there were seven exceptions and
that would happen if you were operating under the exception of legal advice. The posting requirement to go into
executive session requires identification of which one of the seven exceptions the meeting would be operated under . So if
operating under exception #3 (legal advice exception), the best practice would be to have the attorney introduce it; if
operating under exception #7, no attorney needs to introduce it or be present; it can be just staff.
Councilmember Elkie thanked Mr. Verburg for taking the time to come out and speak to the Council. He asked about e-
mails and a situation whereby citizens e-mail all the councilmembers a question that all could answer individually or it
might be more appropriately directed to town staff. Should a councilmember respon d directly to that resident or reply all?
Mr. Verburg’s said that each councilmember could individually respond to the citizen as long as they did not respond to
each other but his recommendation was that when that happens the Council would be better off turning it over to the
Manager (staff) and ask they respond to the citizen inquiry.
Councilmember Elkie asked what his recommendation would be if it was a citizen question relating to a specific vote on
something. Mr. Verburg stated that as a matter of practice he would never advise hitting the “reply to all” button but
respond one to one with that citizen.
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Councilmember Elkie asked if there was any scenario that he could see where a Councilmember or Mayor would be e -
mail all Councilmembers. Mr. Verburg responded yes, noting that although he was not sure what Fountain Hills’
practices were, he explained the Mayor for the City of Phoenix sets the agenda particularly for work-study sessions and
policy sessions, so he may send an e-mail blast I’m putting the following five items on the agenda. Mr. Verburg stated
there would be no problem with that; however, he pointed out that was technically done that through the Manager’s office
noting that the Mayor goes to the Manager and the Manager does it. He gave the example: the Mayor could sent an e-
mail that Councilmember Brown will not be attending this meeting tonight and things of that nature (informational) would
not be a problem under the open meeting law because they were not deliberations or discussion of matters that would
come before the public body for a vote.
Councilmember Hansen discussed the Town’s provision that requires three Councilmembers to put an item on the agenda.
She commented that was somewhat uncomfortable because if you go to two of your friends and one does not want to do
it, then you have to go to a forth; it feels like we are walking on shaky ground. Mr. Verburg said he has confronted the
problem frequently and noted that depending upon which AG you talk to they would have differe nt opinions on that. He
stated the safe practice would be to go to your Manager; he asked if the Mayor set the Fountain Hills agenda.
Councilmember Hansen responded it could be the Manager, the Mayor, or three Councilmembers. Mr. Verburg
responded that he would suggest that Councilmembers exhaust the first two avenues (Manager and Mayor) and if that did
not work, then they would need to go to three Councilmembers. He stated that it was his legal position as city attorney
that to request to place an item on the agenda does not violate the law; but he stated that was his position and there were
others who would not agree with that.
Mayor Schlum interjected that another option existed, whereby any Councilmember can add an item to the agenda to be
discussed to see if there is support from a quorum Council for further discussion/action and asked if that was typical. Mr.
Verburg said most cities have something similar and it was in order to have what he called an efficient flow of business.
Otherwise there would be a lot of things on an agenda where there was only one Councilmember’s support and there
could be fifty items where there would be only one aye vote and six are nays. He acknowledged that most cities had a
similar process, which was almost identical to Fountain Hills; this was not an unusual process. He stated that in Phoenix
in order to put something on the agenda they needed to have four Councilmembers to request it, but again they had a nine
member Council. He said they were similar in process to Fountain Hills in that the Manager and Mayor could place an
item on the agenda under their Council rules.
Councilmember Hansen asked Mr. Verburg to speak to formulating a motion when you come out of executive session.
She noted that oftentimes, its move to approve the recommendation made in executive session and she questioned how do
you say enough?
Mr. Verburg said you can’t do that and reviewed a past situation. He stated that oftentimes decisions are made on the fly
at council meetings and the agenda (for an executive session) requires that you describe with at least general specificity
what it is that you are going to talk about. He said they actually had a complaint about this (changing a zoning
designation) and the when the Council get complaints from the neighborhood and they obviously want to mitigate those
complaints so they start suggesting they want to stipulations on that re-zoning, then maybe the property owner says you
will violate the open meeting law if you do that because you never notified the public you were going to put the se
stipulations on. He acknowledged that was an issue that they confront. He stated that it has been his position that if it is
reasonably related or foreseeable to the underlining posted action, an amendment could be made from the floor and it was
not an open meeting law violation. However, he noted that this was an area that he had disagreed with the Attorney
General’s office, who had thought they would have to post it for a future meeting (with the stipulations on the agenda).
He had responded to them that they (Phoenix) were not doing that as the city did not do business that way; they had
agreed to disagree and moved on. He noted that had it been way off topic, their (the Attorney General) position may have
been well taken. Hopefully, the Council will work with staff to draft the motion on the fly as quickly as they can. He
acknowledged that sometimes it’s difficult because it’s a minority position that the amendment is trying to take and it puts
staff in a tough spot, but they should try and help draft the language so that it is understandable. He said one thing to
understand is that the language that is used by the Council to take action oftentimes does not need to be as precise as
people think it needs to be. Usually, when making a motion the Council is not making code amendment and you are here
taking a formal action; the legal test, as long as the “intent” of the governing body can be discerned from the motion and
discussions that follow, it’s a legally defensible action. Oftentimes people will disagree as to what that language was and
sometimes it leads to lawsuits but that was nature of government.
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Councilmember Hansen returned to her previous question regarding coming out of an executive session and a motion.
She said we move to approve the recommendation as made in executive session and Mr. Verburg had indicated that it
can’t be done that way and asked for clarification. Mr. Verburg’s recommendation was that the attorney state, for the
purposes of the meeting, what the recommendation was and let him articulate it and then the motion could be to move that
we adopt that recommendation; then the words are out in the public. Councilmember Hansen reiterated that there would
have to be some type of mini summary and Mr. Verburg concurred, noting that just saying I move that we adopt the
recommendation as stated in executive session did not inform anyone what the Council was doing. Mr. Verburg said that
in some fashion the general concept of what they want to accomplish needs to be articulated.
Councilmember Dickey asked what should occur if it was about a settlement amount and Mr. Verburg said perhaps it was
how the Town schedules its executive session. He asked if the Town prepares an agenda that says here are the twenty
items that we are going to discuss and that on any of these items we may move to go into executive session . He said then
he did not know when that would occur, because with an item such as a settlement the Council would have a discussion
with their attorney, the Council would give them instruction and they go forth and do the best they can to accomplish their
goals and they come back to the Council and say I can’t get it for $25K but I can get if for $50K, is that ok, they talk to
the Council and if it looks like there is an agreeable consensus it would be put on an agenda saying accepting the
settlement of this matter for $50K. Town Attorney McGuire interjected that it would help Mr. Verburg to understand the
context of this and stated that following the Tempe Union (School Board) case that said you can’t really give direction to
your attorneys regarding litigation in executive session, we put that extra motion on there; it’s related to negotiations and
was not in all context it was in that one specific area. Mr. Verburg said he knew about that case and stated he felt the case
was wrong and that he did not think the courts understood the role that the city attorney has versus the school board
attorney. He stated that again the best practice would be to avoid the issue by having the Council vote any appeal taken.
He noted that he would talk to them (the Council) beforehand letting them know he has an appealable issue, stating that
his recommendation would be to appeal, if that seemed to be the consensus of the Council, he would then put it on an
agenda that would authorize him to file an appeal. He opined that the reason why the school board decision was incorrect
for city attorneys was because he already had authority to handle all legal affairs for the City of Phoenix and he did not
need the Council to tell him to be their lawyer as it was in the City Charter . He stated that the Town probably had an
ordinance that was similar. That being said, the Council was his client; he wanted to do what his client wants, so he
always talks to them to get advice and direction and he wouldn’t take action it they did not w ant him to. He pointed out
that the Council ultimately controls the litigation, but that oftentimes, with court rules, there were tight deadlines. Mr.
Verburg spoke to the issue of Council summer breaks (his Council takes a 60 day break) and there was an appeal looming
he would not even have anyone to talk to get authorization, so he just files the appeal. He commented that he had had one
person claim that was an open meeting law violation but he had explained the circumstances to the Attorney General’s
office and his authority under the City Charter. The Attorney General’s office had agreed with him that the school board
case did not apply to him; that being said, that case does exist. He reiterated that best practice would be to get the
Council’s approval.
Councilmember Dickey made the observation that perhaps executive sessions should not be held prior to the meeting
where that item will be discussed and a decision made, which was just talked about in that executive session, as that
would avoid what Councilmember Hansen had just talked about. Mr. Verburg stated that oftentimes timing was critical
so the circumstances need to be looked at.
Councilmember Leger thanked Mr. Verburg for his presentation and commented that he brought a lot of experience to the
table and he appreciated his case studies. He asked if there were any appropriate circumstances where Councilmembers
could go into executive session to discuss personnel issues that are not directly related to the personnel that are contract
employees that the Council manages (i.e. matters that don’t involve the contracts for the Town’s manager, attorney and
judge). He stated he thought he had heard Mr. Verburg state the Council could do that for contract employees. Mr.
Verburg clarified that there could be a circumstance, particularly if a lawsuit is anticipated over the termination of an
employee, so the Council could come in (executive session) for legal advice. He said oftentimes if there is reorganization
for your entire governmental structure, there may be legal advice associated with that in terms of risks and how you
handle the layoffs and such. It wouldn’t come in really for the organizational chart but because there may be legal issues
by taking that type of action that are implicit in that action that the Council would need to be advised about.
Councilmember Leger asked, hypothetically, if there would ever be a situation where in an executive session a town
manager, after perhaps the town attorney does all his disclaiming as to the purpose of the meeting, engages in a
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conversation with respect to say an organizational change that impacts several employees where there perhaps might be a
threat of legal claim or litigation (i.e. would it be appropriate to have that discussion in an executive session). Mr.
Verburg said noted if there was a threat of litigation that would be covered under the open meeting law exception of #4,
any discussion with instruction to the attorneys regarding possible settlements of threatened litigation. He also explained
it would trigger #3, because the Council might need legal advice on how to avoid that potential litigation. He stated the
discussion itself did not, but it would be naive to think that when those types of actions are taken that there weren’t legal
repercussions that went with that. He noted that was the factual predicate or the background for the purpose of the legal
advice that the Council would be receiving, commenting that this would be a good example of that.
Councilmember Leger questioned that in the case of the town attorney would that possibly be a rationale for the town
attorney to call an executive session or advising your town manager that an executive session be held before you go into
public make a decision that was directly correlated to the other situation (he commented that this was all hyp othetical).
Mr. Verburg responded that in any circumstance in which the action that was about to be taken might result in litigation,
he, as a lawyer, would want to tell his client, hey, you need to know that you will be facing this issues and here are th e
pitfalls that might arise from that or the risk analysis that you need to think about so that you can make an informed
decision. He opined that would be appropriate and that was what lawyers did, if they are doing the best they can.
Councilmember Leger thanked Mr. Verburg for giving his opinion on his hypothetical situation. Mr. Verburg commented
that there may be situation where that didn’t fit.
Mayor Schlum said with the world of communication and social media and all those things we do have a web l ink that
allows the citizens to send a comment to all council and asked if it was best practice to not reply all and say we received
your e-mail and we’re forwarding it to staff. Mr. Verburg restated he would not do a copy all, if all other councilmembers
are listed just because it was human nature to want to respond or react and people may do something that may cause
someone to say that is an open meeting law violation, when there is no intention to do that at all. To avoid the issue you
would be better off not to not do a copy all in the e-mail.
Mayor Schlum questioned since everyone wants to have good communication and the citizens have the ability to reach
out to the Council all at once, was Mr. Verburg saying for one or perhaps the Town Manager to be copied on that and for
them to respond directly to the citizen then the Council doesn’t know what the follow -up was. Mr. Verburg said that city
management could provide the Council with reports; they can say they had the following questions; this is how we
responded, and provide that report can be provided to all of the Council; and that was not an open meeting law violation.
Councilmember Hansen said to follow-up on that noting that a lot of the citizens like to hear from their elected officials
directly so was it fine to reply as an individual and they didn’t always have to say they were referring it to staff. Mr.
Verburg concurred, stating that you only ran into problems when you copy all the Councilmembers and you all do the
same thing and you all state your position and that was when you might have a problem. If you did an individual reply,
not copying your fellow Councilmembers, you are not going to have to worry about that discussion that has to ensue in
order trigger the open meeting law. Mayor Schlum commented that was true unless the citizen replies all. Mr. Verburg
said that was always possible although he would like to think that whoever looks at these things has at least some
reasonableness to understand there was no way you can control that. Mr. Verburg said the Mayor had raised a very good
point. He stated that he has heard criticism and that some of their citizens claim he is a technological dinosaur because of
this advice for the very reason stated: these discussions should be freewheeling and open to the public, this is a hot issue
for my group or my constituency, so what’s wrong if we just talk about it all out there on the internet for everyone to see.
He said the difficulty with that is there are a lot of other people who might be i nterested in that issue too and they didn’t
get the benefit of an agenda to know that you were even going to talk about it; so, in effect, what happens then is there are
a lot of people who might have a view point or something to say but because they are n ot a part of a particular
constituency they don’t’ get an opportunity to be heard or to have their position presented. He expressed that when you
explain it that way people have a better understanding and acceptance of it.
Councilmember Dickey asked when they receive communication that isn’t really asking opinion but just a question for
facts sometimes she does this, if it was something that she has been working on I want to let the other Councilmembers
know that I answered so they don’t have to worry about it. But what she is hearing here is that is not a good idea
anymore. Mr. Verburg said it was safe to assume that each Councilmember cares about their constituency and you all
probably do that. Obviously if you are close to one person or something, it’s not a quorum and you can discuss it with
them as long as you are careful when you are making that discussion that you don’t pass it on to four of you (a quorum);
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three of you could discuss something; however, he noted that it was sometimes difficult to control that fourth
conversation.
Councilmember Dickey clarified if someone just asked a question such as how many chimneys are there on that house and
you responded two because you had been working on that all this time and rather than everybody trying to remember she
was just trying to help out by providing the answer. She indicated she would stop doing that.
Councilmember Dickey said in the beginning Mr. Verburg had referenced something that had happened in the City of
Phoenix that sounded very similar to what they were talking about a breach because a non-lawyer spoke too much and the
path of least resistance was something like this, which she thought was very valuable because of the discussion. She asked
if the minutes had shown that all of the questions had gone through the attorney, would that have made a difference. Mr.
Verburg opined that the questions did not have to go through an attorney and if you think about the attorney client
relationship and when you are in executive session to get legal advice or discuss negotiations or settlements things of that
nature and your implicit with an attorney client relationship is a discussion with the client. Actually the open meeting law
recognizes discussions so you don’t have direct questions through the attorney. He stated it was the attorney who needs
the direction from the Council so again the best practice is for the attorney to open the discussion and have the support
staff provide the background information, have the Council discussion with the attorney concluding with the law.
Councilmember Elkie asked if settlements, either through filed litigation or th rough threat of litigation, needed to be
specifically disclosed during a regular meeting. Mr. Verburg responded that before they become final, definitely, as the
executive session can’t be used for the actual approval of the agreement; so whatever agreeme nt is finally reached will
have to come back to the Council in an open meeting for approval. He clarified that he had authority by City Charter to
settle things up to $25K because that authority has already been given to him by the City Council ; however, anything over
that amount would need to come before the Council at an open meeting for approval. He stated he did not know what the
Town’s circumstances were as such.
Mayor Schlum thanked Mr. Verburg again.
AGENDA ITEM #3 – ADJOURNMENT.
Vice Mayor Contino MOVED to adjourn the meeting and Councilmember Leger SECONDED the motion, which
CARRIED UNANIMOUSLY by those present (6-0). The meeting adjourned at 6:30 p.m.
TOWN OF FOUNTAIN HILLS
By __________________________
Jay T. Schlum, Mayor
ATTEST AND
PREPARED BY:
_________________________
Bevelyn J. Bender, Town Clerk
CERTIFICATION
I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Work Study Session in the
Town Hall Council Chambers held by the Town Council of Fountain Hills on the 9th day of August, 2011. I further
certify that the meeting was duly called and that a quorum was present.
DATED this 15th day of September, 2011.
_____________________________
Bevelyn J. Bender, Town Clerk