Raeder Unilaterally Waived Legal Privilege?

The last post leads me to what Knecht had to say about the "lawyer contact" issue. There is at least one closely related question (unasked until now) that remains publicly unanswered: Was the letter Raeder referred to from the attorney (Haws) and, if so, was it, a) public record or , b) attorney-client privilege? I can guess, but have you ever gotten a letter from an attorney that they didn't consider privileged? I seriously doubt it.

That raises a very serious question: If privileged, what violation(s) did Raeder commit by disclosing the contents in a public meeting without a vote of the board (or even a non-voting "consensus") to do so in a lame attempt to slam Murphy? After all, Raeder herself went way out of her way to make the point that only the whole board is represented by counsel and can make legal decisions (or even contact the attorney, apparently). What effect does her unilateral waiving of attorney-client privilege have on PUSD?

It is common sense that Raeder's unethical conduct will scare off more potential legal representatives than the hiring of an additional law firm ever could.

Reporting Questionable Conduct Is A "Threat" (Unless You're Debra Raeder)

Sometimes I get such a kick out of the Duo's blatant hypocrisy!

With regard to contacting the lawyer directly (discussed at the July meeting), they both recently cast aspersions on Murphy's explanation with empty rhetoric, leaving out the actual facts of which they claim to be so fond. They completely omitted any mention of Erb's extremely defensive outburst, in which he said that he was the "staff" person in question. He never once disputed the timeline or substance of Murphy's description of events.

Apparently, Murphy was telling the truth. Otherwise, Erb would have specifically refuted at least some of the substance of Murphy's statement once he identified himself as the "staff" person.

As for Erickson's "Clintonesque" comment, that is pure sophistry, and he knows it! There is a huge difference between asking for the definitions of "threat" and "is." The word "is" has one clearly understood meaning. The word "threat" (when speaking of lawyers in particular) can have any number of meanings and was purposely used to inflame the situation. Saying you will report questionable conduct (is that really a "threat" anyway) is totally different from a physical threat. Raeder was using the timeless "Do you deny you beat your wife?" tactic. Speaking of being "worthy of the best litigator," it was quite artful for Murphy to force Raeder to define the "threat" rather than sounding defensive by doing it himself.

Where the Duo is concerned, here's the clincher. Several meetings ago, didn't Raeder "threaten" Douglas with possibly reporting her for an open meeting violation? For some strange reason, the Duo failed to chastise Raeder for that "threat." Unfortunately for all of them, Douglas' comment turned out not to be a violation at all. In fact, the statutory reason it was allowed was printed right on the agenda under Raeder's nose!

That wasn't just a "threat," it was an "empty threat" and the height of hypocrisy. But hypocrisy is nothing new for Raeder. Apparently when you're motivated by irrational hatred (with a lot of butt-covering thrown in), your own hypocrisy is tough to notice.

Erb Got Illegal Raise? - Statutory Detail

Due to the level of detail, I'm posting my response to a post on Debbie Lesko's azcentral blog by Veronica1422 on Jul 12, 2007 at 05:58 PM as a separate post here.

You said: "You showed papers or a contract. You didn't show how it was illegal..."

Yes, I explained in specific detail how and why it is illegal. After all of the discussion related to open meeting law that has taken place on various blogs, I presumed, perhaps in error, that most bloggers understand that every action of the board must be noticed on an agenda and happen at a public board meeting by way of a vote.

Incidentally, you said: "get a lawyer, take the governing board to court. Report it to the attorney general's office. If it was illegal prove it!"

How about being consistent, please? Joe has been telling everyone how and why the closed campus decision is illegal for weeks. Have you said the same thing to him? In fact, when someone else suggested that to him, were you one of the people who criticized the suggestion? Hypocrisy isn't a winning persuasive technique. Perhaps you simply didn't realize you were being inconsistent, and plan to remedy that. We'll see.

The recent precedent in PUSD has been to construe the open meeting requirement extremely narrowly. Case in point: changing the agenda items to "possible consideration." Regardless of your opinion of the decision that was made on that issue (irrelevant since we are discussing process here), two board members didn't think the "board meeting protocol" agenda item was sufficiently specific to make the vote valid. Galbraith, Raeder and Erb got a "legal opinion" and forced the board to re-vote the item at subsequent meeting with a more specific agenda item.

Ironically, those are three of the six people who apparently approved a pay increase and a retirement package under an agenda item (and a motion) that only mentioned an extension of the contract end date. Looks like they didn't hold themselves to the same standard when they had monopoly control of the board, did they? By any reasonable standard, the contract issue is of much greater importance and, if anything, one would want to err on the side of prior public disclosure of the various elements of the addendum in that instance.

So, since you apparently need "more information" I'll spoon-feed you a link to the exact statutes that were broken. I'll even quote them here, just in case you can't follow the links (in the statute headings below). The statute quotes (with pertinent/violated items highlighted) are copied and pasted directly from azleg.gov.

38-431. Definitions

3. "Legal action" means a collective decision, commitment or promise made by a public body pursuant to the constitution, the public body's charter, bylaws or specified scope of appointment and the laws of this state.

38-431.01. Meetings shall be open to the public

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.

38-431.02. Notice of meetings

H. Agendas required under this section shall list the specific matters to be discussed, considered or decided at the meeting. The public body may discuss, consider or make decisions only on matters listed on the agenda and other matters related thereto.

38-431.03. Executive sessions

D. Legal action involving a final vote or decision shall not be taken at an executive session, except that the public body may instruct its attorneys or representatives as provided in subsection A, paragraphs 4, 5 and 7 of this section. A public vote shall be taken before any legal action binds the public body.

38-431.05. Meeting held in violation of article; business transacted null and void; ratification

A. All legal action transacted by any public body during a meeting held in violation of any provision of this article is null and void except as provided in subsection B. [ed: which requires a new notice and vote.]

38-431.09. Declaration of public policy

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 any provision of this article in favor of open and public meetings.

Whew!

Now, before you hang your hat on the part of ARS 38-431.02(H) that states, "and other matters related thereto" you should remember that all statutes are interpreted in context (which is why I have erred on the side of being thorough). ARS 38-431.09 makes it very clear that if the board wanted to approve an extension of the contract end date, a retirement package and a pay increase, they have to clearly state in the agenda that they intend to do each of those things or, if they simply mention approving a contract, have a copy of the proposed contract available for public inspection.

If you still have any doubt that there is a pattern of serious open meeting violations regarding Erb's various contracts, you simply aren't willing to listen to the truth.

Erb Got Illegal Raise? - The Sequel

A review of PUSD Superintendent Jack Erb's contract, which is public record, shows that there was more than one occasion where he recieved a pay increase that was not approved in a public meeting as required by law.

His contract, as provided upon request by the district, includes this document. It is a contract dated May 10, 2005 which increases Erb's base salary (effective July 2005) from $130,000 (see previous post) to $135,000. This increase is an even bigger problem than the first one. There are multiple problems with this document, namely:

1. There are no original signatures from either the board or Erb. When asked, the district has repeatedly said there is no other version with signatures to provide.
   
2. The document refers to legal action by the board on May 10, 2005. The agenda for that meeting makes no mention whatsoever of any action related to the superintendent's contract.

To say this is highly unusual is the quintessential understatement. There is absolutely no circumstance that adequately explains how Erb got another raise to his base salary less than six months after his previous raise when there wasn't even an agenda item. At least the board members knew about the first raise, even if they broke the law in giving it to him. A reasonable person might ask if they were even aware of this raise since none of them signed it. Erb didn't even bother to sign it, which, according to its own terms, makes the contract void. But we know he took the money because his current third-party employment contract amount was based on this salary amount.

It sounds like Jack has "a lot of splainin' to do!"

Erb Got Illegal Raise? (Where There's Smoke...)

It appears Greg Donovan and the "old board" wanted to give Jack Erb a gift before Donovan left the board, but after the voters unceremoniously dumped him in favor of Diane Douglas. Everything they did might have even been legal in and of itself. There was only one problem...they didn't bother to do it in a public meeting.

As of the beginning of December 2004, Erb's base salary was $125,000, with several other monetary "perks" thrown in. At the December 14, 2004 board meeting the final agenda item (minutes here) was listed as considering extending the superintendent's contract. So far, so good. The board went into executive session (for about 2-3 minutes, tops) and then came out and voted to extend Erb's contract until 6/30/07. If that was all they actually had done, that would have been fine, too. But it wasn't!

The actual contract addendum the board and Dr. Erb signed did three other things:

1. Increased his base salary by $5,000
2. Gave him an additional $1,500 stipend for having his doctorate degree
3. Allowed him to take a retirement buyout package "at any time" as agreed to by the board in place at the time he decided to retire

None of those three things were ever mentioned in public! They weren't on an agenda. They weren't discussed in the board meeting. They weren't part of the motion Pat Galbraith made and, most importantly, there was NEVER A PUBLIC VOTE! Listen for yourself. The actual motion and vote is in the last 20 seconds of the clip.

So far, Jack Erb has been paid at least $12,000 (that we know of) that was never legally approved in a public meeting. That doesn't include the fact that his AZ state retirement is probably inflated by this improper raise, as well. That means he'll get about $4,000 extra every year for the rest of his life!

I can only hope the proper authorities look into this ASAP. This was too carefully orchestrated to have been a simple oversight. How many other "mistakes" would they would find?

Where there's smoke...