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.