Constitutional Attorney Dan Barr talks about how the State’s open meetings law applies to the state legislature and the Independent Redistricting Commission as well.
Ted Simons: Good evening, and welcome to "Horizon." I'm Ted Simons. Congressman Ben Quayle's mother denies allegations that she tried to help her son retain his congressional seat by asking Governor Brewer to remove the chairwoman of the Independent Redistricting Commission. The allegation was circulated by Democrats in the national media after the governor ousted Colleen Mathis from the commission, allegedly at the behest of Representative Quayle and three other Republican congressmen. The governor's office also denies the alleged conversation with Marilyn Quayle took place. The Tohono O'odham tribe is talking about doubling down, as it were, on its plans for a West Valley casino. A recent state Supreme Court victory has the tribe look again at earlier plans for a bigger casino with more amenities. The governor and the state senate last week removed Colleen Mathis from the Independent Redistricting Commission. That's the group responsible for redrawing Arizona's congressional and legislative district boundaries. It's a five-member panel of citizen volunteers. Two Republicans, two Democrats, and one Independent. Until recently, Mathis was the commission's independent member and its chairwoman. Several reasons have been given for removing her from office, and tonight we consider one of those allegations. That she prearranged votes in violation of the state's open meetings law. Here to talk about that law and how it applies to the redistricting commission is Attorney Dan Barr, a constitutional expert from the Phoenix law firm of Perkins Coie. Thank for joining us. What is the open meetings law in Arizona?
Dan Barr: The open meetings law was enacted about 50 years ago in 1962 by the legislature. And it applies to all public bodies in the state. It applies to the legislature, all boards and commissions in the state, city councils, school boards, and the like.
Ted Simons: What constitutes a violation?
Dan Barr: There are all sorts of violations. Having a meeting in secret, a meeting is defined as a quorum of the public body, say if you have a five-member board, and three of them meet in secret, that's a violation of the open meetings law. It also requires that notice be given of the meeting at least 24 hours ahead of time and the notice be specific enough to allow people to know what the public body is going to discuss. So if the public body has a meeting within 24 hours of the notice, that's a violation, if they discuss matters that are not on the agenda, that's a violation. If they take legal action on things that are not listed on the agenda, that's a violation.
Ted Simons: And if it's a five-member commission, let's say, and the chairperson speaks to two other members individually, not together, not in a group, but individually, that's a violation?
Dan Barr: That could be a violation. There's no case law on that. There's two Arizona attorney general opinions on it. It's basically a hub and spoke method of violating the open meetings law. It's borrowed from conspiracy law. If you have one person reaching out to several people and sort of achieving consensus without a quorum talking to each other, that could be considered a violation of the open meetings law. But again, that's a highly factual determination, and you have hearings to determine whether or not that's happened or not.
Ted Simons: Is this a criminal violation? Is it a civil matter?
Dan Barr: It's a civil matter. What the open meetings law provides for most cases, if you find a violation that then whatever legal action the public body took is null and void. At that point the public body has option under ratification which is essentially a do-over. They can then have another public meeting and essentially ratify the action that they took in violation of the statute, and go ahead and enact it.
Ted Simons: So what else would be a usual penalty, a slap on the wrist, don't do this again?
Dan Barr: Gikdubg something null and void is a pretty big deal, and you get your attorney fees assessed against you. Other penalties are up to a $500 fine to the individual officials and the ultimate penalty is removal from office. I'm unfamiliar with any court removing anyone from office under the open meetings law. There was a consent decree that the attorney general's office entered into about 20 years ago involving a west side school district, but that's it.
Ted Simons: So let's get to the IRC and the commission here and the allegations that violations occurred regarding the open meetings law. Let's say before we get into nuts and bolts, let's say a violation did occur. Does it seem as though, I think I just heard you suggest as much, that removing someone especially the chairperson of a commission, is unusual to say the least?
Dan Barr: It's never happened, so yes, it would be unusual. The usual penalty would be to nullify the legal action, in this case hiring the mapping firm, the mapping consultant, you would nullify that and you would then have the IRC with the opportunity to ratify its action. And to do that they'd have to give 72-hours' notice of a meeting, they'd have to give more detailed agenda of what they were going to do, but they could go ahead and do the same decision over again.
Ted Simons: Now let's get to nuts and bolts here. What did the governor and Republicans in the state senate, what are they saying that Commissioner Mathis did?
Dan Barr: My understanding what they're saying, they're saying there are allegations that Commissioner Mathis and the two Democratic members on the telephone agreed with one another that they would hire this mapping firm. And did so outside of an open meeting. That is a factual determination. I'm unaware of any facts that support that. What would happen in the ordinary course is you would file a lawsuit, and then you'd take the depositions of Commissioner Mathis and its other people and find out what happened. Here what the governor has done is saying, "There are allegations of this." And I'm unaware of any sort of conclusive proof one way or the other what happened. Just merely making a phone call is not enough to make a violation. You have to make a phone call and try to achieve consensus outside of the public meeting. If one member of a public body calls the other and says, "What are you doing for dinner tonight?" that's not a violation of the open meetings law.
Ted Simons: We don't know, because we haven't really heard from the chairwoman yet.
Dan Barr: Exactly. And that's what would happen in a court proceeding. You would take the testimony and a fact finder would decide what had happened. That hasn't happened yet.
Ted Simons: What's the difference between the allegations against the commission and what I would imagine happens quite often at the legislature regarding a variety of issues. I mean, is there a difference there?
Dan Barr: Well, first of all, the commission, one of the issues that's going to be decided by the Supreme Court and the superior court by Judge Finkon September 16th and by the Supreme Court possibly on November 17th, excuse me, is what open meetings law provision applies to the IRC. There is a provision in the state constitution that says when a quorum is present, the Independent Redistricting Commission shall conduct business in an open to the public with 48 or more hours of notice. Commissioner Mathis and the two Democratic commissioners are arguing that provision applies to the IRC specifically, and not the statutory open meetings law. So the issue is, do you read the constitutional provision together with the statute, or does the constitution trump the statute? If the commissioner and others are correct, then if these telephone conversations took place, their argument is that doesn't apply to deliberation and such that the statutory open meetings law applies to, so we're not in violation. If the constitution doesn't apply and the statute does, their argument is, you haven't established sufficient facts that show there's a violation. But getting to your question about the legislature, the open meetings law does apply to the legislature. There's an exception for political caucuses, and an exception for committee meetings. However, Attorney General Bob Corbin in an opinion 28 years ago held that the political caucus exception has to be very narrow in scope, it applies only to determining what your party policy is, and not taking a vote and achieving consensus on a bill, especially when your political caucus has a majority, which the Republicans and the state senate do. So what happened here was my understanding is the Republicans caucus and the state senate met briefly, and then they went about and they tallied the votes amongst each other. They did so outside of an open meeting. And eventually the time line is this: at 4:30 p.m. on November 1st, Secretary of State Ken Bennett, the acting governor, sends as letter to Colleen Mathis saying, "You're out of here." 35 minutes later, they conduct a special session of the legislature of which my understanding there was not 24 hours notice of. The special session lasts for all of an hour and 25 minutes, and so only two hours after Commissioner Mathis gets notice she's been removed from office, the state senate votes two-thirds majority to remove her from office.
Ted Simons: Question marks?
Dan Barr: A lot of question marks. It doesn't seem to be complying with the open meetings law.
Ted Simons: Oh, my goodness. What's next here? We have a hearing November 17th? Oral arguments for this?
Dan Barr: Right. There are two cases. There's a case in superior court, which is the open meeting suit originally filed by Attorney General Tom Horne, who's now been disqualified because the attorney general's office gave advice originally to the Independent Redistricting Commission on the open meetings law. There's a hearing in that case on November 16th. And one of the issues will be does the state constitution open meetings law provision prevail or does the statutory provision? Then on November 17th, there will be a hearing on the special action before the Arizona Supreme Court.
Ted Simons: All right. Keep an eye on both. Good to have you here. Thanks for joining us, we appreciate it.