The Arizona Republic made waves yesterday when it reported that Glendale Mayor Jerry Weiers would be filing a Open Meeting Law (OML) complaint with the Arizona Attorney General's Office. In particular, one passage set many a Coyotes fan's heart aflutter:
Media attorney David Bodney, who represents The Republic, said the deliberations by the four council members who voted for the Coyotes deal were not held in a public meeting and "would be a likely violation of the Open Meeting Law."
The council approval of the Coyotes deal would be voided if it is determined that the Open Meeting Law was violated, he said.
So let's take a look at the information provided by the Republic, and existing Arizona law, to figure out how serious these allegations are and whether or not they pose a threat to the Jobing.com Arena lease agreement.
The Open Meeting Law
Open Meeting Laws in Arizona are codified under A.R.S. § 38-431. A "meeting" is defined by the law as:
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.
In the City of Glendale's case, a quorum is four members of the seven member city council. The allegations set forth by the mayor relate to a meeting between Renaissance Sports & Entertainment attorney Nick Woods and councilmembers Yvonne Knaack, Sam Chivara, and Gary Sherwood. By itself, there is no OML violation here because there are only three councilmembers present, which isn't a quorum. But the story doesn't end here.
What's in an Email?
The event in question that potentially results in an OML violation is an email sent by CM Sherwood to CM Manny Martinez, during which he discusses the product of the conversation with Woods:
In the e-mail from Sherwood to Councilman Manny Martinez, Sherwood wrote that he and Knaack "spent over an hour with Nick Woods last night." Woods is an attorney representing IceArizona, the entity that owns the Coyotes.
He went on to write that, "Sammy (Chavira) is already on board as he was with us last night" and closed the e-mail by writing "Manny, please delete this email after you've read it."
So it seems apparent that CM Sherwood engaged in some conversation with CM Martinez via email (though to be fair, CM Sherwood maintains that CM Chavira was not actually present during the conversation with Woods, but more on this in a little bit). The problem here is that CM Sherwood's email exchange with CM Martinez falls under the definition of "meeting" established above.
The fact that the events did not happen simultaneously does not matter either. Arizona Attorney General's Opinion I05-004 (2005) established that
The OML does not specifically address whether all members of the body must participate simultaneously to constitute a "gathering" or meeting. However, the requirement that the OML be construed in favor of open and public meetings leads to the conclusion that simultaneous interaction is not required for a "meeting" or "gathering" within the OML.
So even though the conversation between CMs Sherwood and Martinez was not in person and did not occur during or immediately after the conversation with Woods, the fact that the subject matter was the same means that the OML still applies. And this makes sense because it would be easy to circumvent the OML if such serial communications were allowed to happen.
The Consequences of Disobedience
State law empowers the Attorney General's Office to investigate violations of the OML. While there are civil penalties for public officers who are found to have violated the OML, Coyotes fans are undoubtedly concerned about A.R.S. § 38-431.05, which says that:
All legal action transacted by any public body during a meeting held in violation of any provision of this article is null and void
Therefore, it is possible for a court to decide that the Jobing.com Arena lease agreement was a product of legal action that occurred during the OML violation, and therefore is no longer valid. The City Council would have the ability, under Subsection B of the same statute, to re-vote on the Arena lease agreement within thirty days after the discovery of the OML violation, but if there are changes to the composition of the City Council in the interim, then it is possible the re-vote doesn't happen or turns against the lease agreement.
Unless the process doesn't get that far.
There are two ways that the OML investigation could have zero impact on the agreement between the City of Glendale and Jobing.com Arena. The first, and most straightforward, is if the Attorney General's Office agrees with CM Sherwood's assertion that CM Chavira was not in fact present during the meeting with Woods. If that was the case, then even with Martinez's involvement only three councilmembers discussed the agreement, which is still not an OML violation.
This is speculation on my part so it should not be interpreted as CM Sherwood's argument, but it is conceivable that Sherwood meant by "he was with us last night" as Chavira was on board with supporting the arena lease agreement. This seems like a stretch, but if there is no evidence to the contrary, the AAG's Office may not have enough evidence to rule an OML violation actually occurred.
The stronger argument has to do with existing Arizona caselaw. The Arizona Court of Appeals addressed the issue of what extent OML violations nullify the previous actions in the 1980 case Cooper v. Arizona Western College District Governing Board (125 Ariz. 463, 610 Pd.2 465). The Court said that:
We find no provision in the Arizona statutes relating to public meetings which precludes a public body from adopting at a subsequent public meeting action which was legally ineffective from a previous meeting of the public body.
In other words, actions that occurred during an OML violation are not necessary nullified if they were subsequently enacted in a meeting that did comply with the OML. The Court of Appeals again in Valencia v. Cota (126 Ariz. 555, 617 P.2d 63) determined that:
Two separate appellate cases in the same year concluded that an Open Meeting Law violation does not negate the legal action taken if the final action occurred in a normal meeting. Since the final vote on the Coyotes lease agreement occurred in public, with proper public notice posted beforehand, the agreement could still be found valid if the AAG's office concluded that an OML violation did occur.
All of the above analysis would inevitably have to be litigated, should the AAG's Office find an OML violation did take place. The presence of existing caselaw does not preclude the court from taking a different stance now. But if nothing else, Coyotes fans should breathe a little easier knowing there is law that supports keeping the arena lease agreement in place.