What is being decided behind closed doors?

Posted 9/30/19

Apache Junction council members Christa Rizzi, Robert Schroeder and Robin Barker at a recent City Council meeting. Closed-door executive sessions are held in a different room. (Arianna …

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What is being decided behind closed doors?

Posted
Apache Junction council members Christa Rizzi, Robert Schroeder and Robin Barker at a recent City Council meeting. Closed-door executive sessions are held in a different room. (Arianna Grainey, Independent Newsmedia)

Queen Creek Town Council has met behind closed doors several times in recent months to discuss a lawsuit filed against the town by Johnson Utilities and the Apache Junction City Council separately did the same to discuss obtaining authority to engage in a utility business.

Agendas of the meetings --- called executive sessions --- are posted for the public to view.

The Town of Queen Creek for years has included the agendas online, while Apache Junction only started doing so this summer.

State law allows the meetings per Arizona Revised Statutes 38-431.03, which states, in part, that upon a public majority vote of the members constituting a quorum, a public body may hold an executive session. It goes on to list seven subsections detailing the types of meetings that may be held, according to azleg.gov.

The Independent in May requested the last five executive session agendas and minutes for the two municipalities. Queen Creek responded in May and Apache Junction didn’t do so until a second request was made in September.

Apache Junction

Water and sewer utilities may have been the topic of City of Apache Junction executive session agendas in April, May and June.

Apache Junction Mayor Jeff Serdy. (Arianna Grainey, Independent Newsmedia)

No surprise, since at the State of the City, hosted by Apache Junction Mayor Jeff Serdy on Feb. 13, it was reported that “(T)he city is beginning discussions … to bringing our strong, reliable utilities --- water and sewer systems --- into the city,” Mayor Serdy said at the time. “Right now they’re separate entities. If it was all under one umbrella, we could adapt to major growth so much better. We’re researching the feasibility for a one-source contract for trash pickup also; now we have three.”

The executive-session agendas don’t mention what utility, but refer to Arizona Revised Statutes §9-514. It is, according to azleg.gov/ars/9/00514.htm:

• A. Except as provided in section 9-571, before construction, purchase, acquisition or lease by a municipal corporation, as authorized in sections 9-511, 9-511.01, 9-511.02, 9-512 and 9-513, of any plant or property or portion of plant or property devoted to the business of or services rendered by a public utility shall be undertaken, the construction, purchase, acquisition or lease shall be authorized by the affirmative vote of a majority of the qualified electors who are taxpayers of the municipal corporation voting at a general or special municipal election duly called and held for the purpose of voting on the question.

• B. This section does not apply to the construction, purchase, acquisition or lease of water or sewage system utilities by a city or town incorporated pursuant to section 9-101.02.

The three items on the April 1-2 executive session agenda included authority to engage in utility business pursuant to A.R.S. § 9-514; purchase of land for public purposes; and discussion or consultation with the city’s attorneys on litigation regarding Mehmood Mohiuddin, Hitching Post Pizza and Pub LLC v. City of Apache Junction et al.-District Court Case No. 2: 18-cv-01801-GMS.

The three items on the May 20-21 City Council executive session agenda included the authority to engage in utility business pursuant to A.R.S. § 9-514; purchase of land for public purposes; and discussions on Mehmood Mohiuddin, Hitching Post Pizza and Pub LLC v. City of Apache Junction et al.-District Court Case No. 2:18-cv-01801-GMS.

There was one general item on the first of two June 3-4 executive session agendas: Discussion or consultation with the city attorney for purposes of legal advice.

The three items on the second June 3-4 executive session agenda included authority to engage in utility business pursuant to A.R.S. § 9-514; and purchase of land for public purposes.

There was one item on the July 16 executive session agenda: litigation regarding Mehmood Mohiuddin, Hitching Post Pizza and Pub LLC on the potential fourth amendment development agreement.

There were two items on the Aug. 6 executive session agenda, including the Mehmood Mohiuddin, Hitching Post Pizza and Pub LLC on the potential fourth amendment development agreement; and negotiations for the purchase, sale or lease of real property.

The Town of Queen Creek

Town Manager John Kross (Independent Newsmedia/Arianna Grainey)

Johnson Utilities, which provides water and wastewater service to the public in portions of Pinal County, including San Tan Valley and Queen Creek, was the most-often mentioned agenda topic in five Town of Queen Creek executive session agendas between June 5 and Sept. 4. Some concerned a pending lawsuit, Johnson Utilities vs. Queen Creek, and others were on the Arizona Corporation Commission’s discussions of the company, as the ACC in August 2018 appointed Epcor Water Arizona Inc. as the interim manager for Johnson Utilities.

The ACC on July 18 ordered Epcor to commence work on 70 projects identified in a three-year capital improvement plan. The plan anticipates 22 wastewater projects totaling $67,760,000 and 48 water projects totaling $61,720,000 for an overall 2019-22 capital improvement project total of $129,480,000, according to a release from the commission.

There were a total of five topics at the June 5 Queen Creek Town Council executive session, including discussion with the town’s attorney and representatives regarding the Arizona Corporation Commission actions related to Johnson Utilities; and to consider the town’s position and instruct its attorneys regarding the pending lawsuit(s): Johnson Utilities vs. Town of Queen Creek.

There were nine topics at the July 17 Town Council meeting, including on annexations and providing utility services; potential water rights agreements; the Arizona Corporation Commission actions related to Johnson Utilities; and the pending lawsuit(s): Johnson Utilities vs. Town of Queen Creek.

Early in the day Aug. 7, at a special meeting, there was one topic pertaining to the resignation of the town clerk:

• Discussion or consideration of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of a public officer, appointee or employee of the public body. This is regarding the interview and appointment of a town clerk. Interviews were to be held in the executive session.

At the Aug. 7 Town Council meeting, there were five executive-session topics, including the Arizona Corporation Commission actions related to Johnson Utilities; annexations and providing utility services; and potential water rights agreements.

There were 10 topics in the Sept. 4 agenda, including development impact fees and non-residential uses; Arizona Corporation Commission actions related to Johnson Utilities; annexations and providing utility services; pending lawsuit(s): Johnson Utilities vs. Town of Queen Creek; and potential water rights agreements.

Request for records

The Independent on May 25 e-mailed the town and city records requests asking for the minutes of the last five council executive sessions and copies of the agendas.

Queen Creek Town Clerk Jennifer Robinson, who is retiring in October, replied May 28: “In response to your request for executive session minutes --- those are not considered public records per A.R.S. 38-431.03(B)(1-4). However, the executive session agenda items are listed on the regular session agendas and are available on the town’s website: queencreek.org/town-hall/town-council/watch-town-council-meetings,” she said.

The City of Apache Junction never replied to the initial records request.

A second e-mail was sent Sept. 4 seeking the records, to both records@ajcity.net and to the Apache Junction city clerk.

David Williams, senior records clerk for the Apache Junction Police Department, said he had forwarded the May 25 e-mail to the City Clerk’s Office when it had been received.

“I apologize. I received and forwarded your request over to our city clerk on 5/28 as these are non-PD records. I just spoke with them and re-sent the request, asking if they would please contact you about how soon this could be ready. Thank you for your patience. I will continue to check with them on getting this information to you,” he wrote in a Sept. 4 e-mail.

Maureen Fredrickson, office support specialist for Apache Junction, said in an e-mail Sept. 4 that the initial e-mail had been sent to the city clerk.

“Thank you for bringing this to my attention. As you may know, (City Clerk) Kathy Connelly has been out since early May and this request was sent to her email. If you would like any further public records requests, it would be great if you would send them to my email address above,” Ms. Fredrickson said.

“As for this request: 1. Executive session minutes: Please see Statute 38-431.03B. No one receives executive session minutes pursuant to this statute. 2. Executive session agendas: These are available on the city of Apache Junction’s website, apachejunction.legistar.com/Calendar.aspx Go to the ‘search’ box and type in “Executive Session” and you should be able to find what you need there. Please let me know if this was what you needed, and thank you for your patience,” she said.

Since Apache Junction City Council executive session agendas only became available at apachejunction.legistar.com/Calendar.aspx starting with the June 3, 2019, meeting, there were only executive session agendas for Aug. 6, July 15 and June 3.

The Independent had a copy of an April 1-2 agenda, so a fifth one was sought.

“I appreciate your patience on this and would be glad to send the agenda to you at no charge. It looks like the one missing is from May 20, 2019. Please see attached,” Ms. Fredrickson wrote in a Sept. 5 e-mail.

City Clerk Connelly has left the city, Al Bravo, public information officer, said.

“Kathy Connelly is no longer employed by the city. As this is a personnel issue, we cannot comment further,” he said in an e-mail.

Arizona state law

State law allows executive session meetings per Arizona Revised Statutes 38-431.03. According to azleg.gov, it states:

A. Upon a public majority vote of the members constituting a quorum, a public body may hold an executive session but only for the following purposes:

  1. Discussion or consideration of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of a public officer, appointee or employee of any public body, except that, with the exception of salary discussions, an officer, appointee or employee may demand that the discussion or consideration occur at a public meeting. The public body shall provide the officer, appointee or employee with written notice of the executive session as is appropriate but not less than twenty-four hours for the officer, appointee or employee to determine whether the discussion or consideration should occur at a public meeting.
  2. Discussion or consideration of records exempt by law from public inspection, including the receipt and discussion of information or testimony that is specifically required to be maintained as confidential by state or federal law.
  3. Discussion or consultation for legal advice with the attorney or attorneys of the public body.
  4. Discussion or consultation with the attorneys of the public body in order to consider its position and instruct its attorneys regarding the public body’s position regarding contracts that are the subject of negotiations, in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation.
  5. Discussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations with employee organizations regarding the salaries, salary schedules or compensation paid in the form of fringe benefits of employees of the public body.
  6. Discussion, consultation or consideration for international and interstate negotiations or for negotiations by a city or town, or its designated representatives, with members of a tribal council, or its designated representatives, of an Indian reservation located within or adjacent to the city or town.
  7. Discussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations for the purchase, sale or lease of real property.