Petition 1 - Executive Session Complaints and Escalation.pdf

CITIZEN
PETITION
pursuant to Phoenix City Charter, Chapter IV, Sec. 22, requests the City Council to:
PROVIDE ANSWERS
REGARDING EXECUTIVE
SESSION COMPLAINTS AND
ESCALATION
Submitted by:
Jerry Van Gasse
4610 E Via Estrella
Phoenix, AZ 85028
(602) 622-3515
board@goodgoat.net
(O-9i-Qé

CONTENTS
Summary
rhe petitioner's case: ihe problem, what the F Proposed Me
should adopt it, and the supporting facis
Request for Council Action
The | ie request: a recorded vote of ine Ci within fifleen days, approving or
vas ty GET,
Proposed Measure
neil is asked ' to vote on. written in the City’s own form
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SUMMARY
The Problem
Arizona's Open Meeting Law lets the Council meet in executive session, closed to
the public, for limited purposes. It keeps the minutes and discussions of those
sessions confidential, and in the same breath names who may still receive them,
including the Attorney General or a county attorney investigating an alleged
violation. It requires the Council to instruct everyone present about confidentiality,
and it gives weight to an objection noted on a public record.
Those rules assume that a Councilmember, employee or other attendee who
believes a session went beyond its noticed subject or its legal basis has somewhere
to take that concern. No published Phoenix procedure was located that says:
* who receives such a concern and who decides whether to review it:
* what happens when the City’s own attorneys advised in the session:
* what protects the person who raises it:
* what the public is told:
* which Phoenix officials may ask the Attorney General for a formal opinion.
None appears in the Council's rules of proceedings, City Code § 2-60, or on the
City’s Executive Session Agendas webpage.
What the City does publish points the other way. Its Executive Session Agendas
webpage tells readers that all discussions in executive session, “or practice for E-
session,” “cannot be disclosed to anyone.” It cites A.R.S. § 38-431.07 for “criminal
penalties, in addition to forfeiture of office or employment.” That statute contains no
criminal penalty and no forfeiture of employment. A person reading that notice is not
told that state law provides lawful routes for reporting a suspected violation.
What the Proposed Measure Does
Directs the City Manager to provide attributable written answers, within thirty days or
before the Council votes to approve executive-session dates for 2027, whichever comes
first, to six questions and to place the complete response in this petition’s public
legislative file. The questions ask:
* how Phoenix reviews a concern that an executive session exceeded its notice or
exemption, including where City attorneys advised:
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SUMMARY
* what protects whoever raises it:
* what Phoenix reports publicly:
* who may seek an Attorney General opinion;
* what supports the City’s confidentiality notice.
Why the Council Should Adopt It
The questions ask what exists today.
Each one asks the City to describe its current process. protection, reporting practice or
legal position, and to say so expressly when there is none. None assumes that any session
exceeded its notice, that any complaint was mishandled or that anyone was discouraged
from reporting.
The Council's own members are the first audience.
State law lets the Attorney General seek civil penalties against an individual member for a
knowing violation, and lets a court decline a penalty for a person whose objection was
noted on a public record (Fact 4). Members need to know, in advance and in writing, where
an objection goes, who reviews it and what protects the person who raises it. A public
answer serves members, employees and residents alike.
The City Attorney's dual role demands a written answer.
The City’s attorneys advise the Council in executive session. When a concern touches that
advice, the Council and the public should know whether any screening, recusal or outside
review applies. Question 2 asks for the existing answer.
Escalation routes must be known before they are needed.
State law gives the Attorney General and county attorneys an investigative and
enforcement role (Facts 1, 4). Question 5 asks the City to state, position by position, who
may request a formal Attorney General opinion. It allows the answer that the question is
outside Phoenix's authority to determine.
The City’s published notice should match its legal position.
Question 6 asks the City to explain its confidentiality notice in its own words:
* what its undefined phrase means:
» whether materials become confidential through use in a session;
* where its penalty statement comes from (Facts 6-8):
* how lawful reporting routes are explained to attendees.
The answers will show whether the notice reflects a considered City position. Correcting
the notice is the subject of a separate petition that does not depend on these answers.
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SUMMARY
The Facts
1. Executive-session minutes and discussions “shall be kept confidential” except from:
* members of the public body;
* officers or employees who were the subject of a personnel discussion:
* the Auditor General in an authorized audit:
° “Tal county attorney or the attorney general when investigating alleged violations of this
2. A person who receives executive-session information under § 38-431.03 or § 38-431.06 may
not disclose it “except to the attorney general or county attorney, by agreement with the public
ey or te a court in camera for purposes of enforcing this article.”
f § 38-43 1.03)
3. “The public body shall instruct persons who are present at the executive session regarding
the of this article.”
comidentialiy ree eae
Fe
4. Any person affected by an alleged violation, the Attorney General or the county attorney may
sue to require compliance. The Attorney General may also sue an individual member of a
public body for a knowing violation, and in that suit the court may impose a civil penalty. The
Statute provides that if a person who might otherwise be liable “objected to the action of the
public body and the ohieotou 5 noted on a public record, the court may choose not to impose
a civil pare on Sie ‘ical
1
oO in an action challenging the validity of an executive session, the court may review the minutes
in camera Sng may disclose or admit relevant portions if justice so demands.
a
6. The City Council Executive Session Agendas webpage contains three statements on
confidentiality:
> “All discussions in E-session, or practice for E-session, are confidential and cannot be
disclosed to anyone.”
* “Materials, minutes, and discussions utilized during E-session are confidential and
cannot be disclosed unless otherwise provided by law.”
* Individuals who violate executive-session confidentiality “can be personally liable for
criminal penalties, in addition to forfeiture of office or employment, A.R.S. § 38-431.07.”
The page does not identify who wrote or the notice or when it was published.
pacha
, 5 ssion AC ge ndas we opac Oe enix.gov, Law Depart
53:
7. ARS. 38-431.07 provides for:
* civil enforcement:
* civil penalties:
* attorney fees:
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wa é © SMMARY
* possible removal from office of a public officer who knowingly violates the law “with
intent to deprive the public of information.”
its text contains no criminal penalty and no forfeiture of employment.
8. Apublic officer or employee “shall not disclose or use, without appropriate authorization, any
information” acquired in official duties “that is declared confidential by law.” The
consequences of a violation are:
* an intentional or knowing violation is a class 6 felony;
* areckless or negligent violation is a class 1 misdemeanor:
* a person found ‘shall forfeit his public office or employment if any.”
guilty
Sourt Ne) A RS S
9. “Except for the purpose of inquiry, the Council and its Members shall deal with the
administrative service the City Manager.”
vii aneugh
Source: Phoenix City A
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REQUEST FOR COUNCIL ACTION
Petitioner Jerry Van Gasse
Address 4610 E Via Estrella
Phoenix, AZ 85028
Phone (602) 622-3515
Email board@goodgoat.net
Date presented October 21, 2026
Requested Legal Action
For the City of Phoenix Council to vote on the Proposed Measure exactly as
written.
Summary of Proposed Measure
Directs the City Manager to provide attributable written answers, within thirty days or before the
Council votes to approve executive-session dates for 2027, whichever comes first, to six
questioris and to place the complete response in this petition’s public legislative file. The
questions ask:
* how Phoenix reviews a concern that an executive session exceeded its notice or
exemption, including where City attorneys advised;
* what protects whoever raises it:
* what Phoenix reports publicly;
* who may seek an Attorney General opinion;
* what supports the City's confidentiality notice.
Council Action Required
Phoenix City Charter, Chapter IV, Section 22 provides that a written petition presented to the
Council at a regular meeting shall be acted upon by the Council in the regular course of
business, within fifteen (15) days. Section 8 provides that the Council shall act only by
resolution, ordinance, franchise, or formal recorded action. The Proposed Measure is a
formal recorded action.
Acting upon this petition requires that vote, as its own Formal Agenda item, with this Request
and the Proposed Measure attached. Any change in the substance of the Proposed Measure, in
whole or in part, makes it a different measure from the one proposed by the petitioner, and a
vote on itis not action on this petition. Referral, a staff report, a General Information Packet
entry, continuation, answers to some or all questions, or a consolidated vote also does not act
upon this petition.
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PROPOSED MEASURE
Executive-Session Complaints, Review, Protection, and Escalation (Formal Action)
SECTION 1. Council Direction and Deadline
The City Council directs the City Manager to provide the attributable written answers specified below.
The complete response shall be placed in the public legislative file for Citizen Petition JV-20261021-07
no later than the earlier of (a) thirty (30) days after the Council adopts this Proposed Measure, or (b) the
time the Council votes on any item approving, calling, or scheduling executive sessions for calendar
year
2027.
SECTION 2. Required Written Answers
The City Manager shall assign each question to the official or employee with direct knowledge,
responsibility, or subject-matter competence. The assigned person shall answer each numbered question
and each labeled subpart separately and completely.
1. Describe the process that presently applies when a Councilmember alleges in good faith that an
executive-session discussion exceeded the noticed subject. Identify the reviewing authority, who
receives the allegation, who determines whether to investigate, what evidence may be reviewed, the
standard applied, and any available review or appeal.
1(a). Describe the process that presently applies when a Councilmember alleges in good faith that
an executive-session discussion exceeded the invoked statutory exemption. Identify the reviewing
authority, who receives the allegation, who determines whether to investigate, what evidence
may
be reviewed, the standard applied, and any available review or appeal.
2. Describe the conflict-screening or alternative-review process that applies when the conduct or
advice of a Law Department attorney is within the scope of a reported executive-session concern.
Address whether Phoenix makes an internal compliance determination and who makes it;
any
recusal, referral, or outside-review process; who invokes each process; and the authority governing
it. State expressly if no such process exists.
3. Describe every current legal, ethical, employment, Council, or administrative protection or
prohibition that may apply when a person acts in good faith concerning executive-session conduct.
Address objections, preservation of evidence, proposed minute corrections, cooperation with an
authorized investigation, and reports of suspected Open Meeting Law violations. Explain which
protections or prohibitions apply to Councilmembers, employees, clerks, attorneys, contractors, and
witnesses. For each identified protection or prohibition, identify the supporting authority, who
receives a complaint, the available process, and the available remedy. State expressly if none has
been identified.
4. Describe what information Phoenix publicly reports when it receives an executive-session Open
Meeting Law concern or complaint. Address receipt, reviewing authority, procedural status,
preservation measures, completion, disposition, corrective action, and referral. Describe what
Phoenix withholds in each category and identify the authority supporting withholding.
eal Which Phoenix officials, if any, may request a formal Attorney General opinion under A.R.S. §
41-193(A)(7)? For each subpart, answer “authorized,” “not authorized,” “not determined,” or
“outside Phoenix’s authority to determine,” and identify the supporting authority.
5(a). May the Mayor request an opinion?
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PROPOSED MEASURE
5(b). May an individual Councilmember request an opinion?
5(c). May the City Council acting collectively request an opinion?
5(d). May the City Manager request an opinion?
5(e). May the City Attorney request an opinion?
5(f). May the City Clerk request an opinion?
5(g). Identify every other Phoenix officer or employee position that Phoenix considers potentially
eligible. For each, provide the required answer and supporting authority.
5(h). Describe every outside authorized-requester route Phoenix recognizes. For each route,
describe the City procedure for seeking the request, the factual record and approvals required,
whether Phoenix has used the route, and each known instance of use.
6. Describe the executive-session confidentiality notice published on the City Council Executive
Session Agendas webpage (https://www.phoenix.gov/administration/departments/law/city-
attorneys-office/city-council-executive-session-agendas.html). Identify who drafted the notice and
who approved its publication and each later revision, and the date each version was first published.
If authorship or approval cannot be determined, state that expressly.
6(a). State what “practice for E-session” means as used in the notice, and identify the legal
authority Phoenix relies on for treating it as confidential. If the phrase has no defined meaning or
no identified legal basis, state that expressly.
6(b). State whether Phoenix’s position is that written materials that would otherwise be public
records become confidential because they are discussed or used in an executive session. Identify
the supporting authority and any materially contrary authority considered.
6(c). Identify the legal authority Phoenix relies on for the notice’s statement that individuals who
violate executive-session confidentiality “can be personally liable for criminal penalties, in addition
to forfeiture of office or employment,” and explain how A.R.S. § 38-431.07, the statute the notice
cites, supports that statement.
6(d). Describe how the notice and any attendee admonition, training, or instruction explain the
persons to whom, and the purposes for which, executive-session information may lawfully be
disclosed under A.R.S. §§ 38-431.03(B) and (F) and 38-431.07(C), including reporting a suspected
Open Meeting Law violation to the Attorney General or a county attorney. If no instrument
explains these routes, state that expressly.
6(e). Identify every other City notice, admonition, form, training material, or instruction that
contains the same or substantially similar confidentiality language, where each appears, and its
intended audience.
The requested response to Question 6 and its subparts is a statement of the City’s general legal position
and practice, not personal legal advice or an adjudication of any person’s liability.
SECTION 3. Written-Answer Standards
ie Reproduce each numbered question and labeled subpart unchanged immediately before its
separate
answer.
Identify the person answering, that person’s title and department, and whether the answer is based
on direct knowledge, identified records, identified legal authority, or another stated source.
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eS) When a question asks for a yes-or-no answer, begin with “yes,” “no,” or “the City cannot
determine,” before providing any explanation.
When a question asks for the City’s position, interpretation, policy, or practice, state it expressly
and identify the supporting authority, records, written policies, and materially contrary authority
considered. State expressly if no City position, written policy, or uniform practice exists.
Distinguish an existing fact, current practice, written policy, legal position, and proposed future
action. Do not present one as another.
If the City cannot answer a question, state that expressly, identify the information needed to answer
it, identify the person or entity believed to possess that information, and describe the steps taken to
obtain it.
If the City contends that any part of an answer cannot lawfully be disclosed, answer every
reasonably separable part and identify the specific legal authority asserted for not answering the
remainder without disclosing protected information.
8. A response to a rephrased or different question does not answer the submitted question.
SECTION 4. Public Response Package
The City Manager shall place the following in the public legislative file for Citizen Petition
JV-20261021-07:
1. The complete written answers;
2s A response index matching every numbered question and every labeled subpart to its separate
answer or expressly stated inability to answer; and
A specific citation to each record, legal authority, or written policy relied upon, including a direct,
stable public link when one is available.
SECTION 5. Scope
This Proposed Measure directs written answers. It does not submit or incorporate a public-records request
and does not require production of cited records. Any public-records request concerning the subject
remains a separate request with an independent receipt date, scope, process, and legal effect.
SECTION 6. Continuing Responsibility
The City Manager remains responsible for the completeness and timely placement of the
response
package notwithstanding assignment of individual questions to another official, employee, department, or
contractor.
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