Petition 2 - Public Preservation of Open Meeting Law Objections.pdf

CITIZEN
ETITION
pursuant to Phoenix City Charter, Chapter IV, Sec. 22, requests the City Council to:
ADOPT AN ORDINANCE AMENDING
THE PHOENIX CITY CODE REGARDING
PUBLIC PRESERVATION OF OPEN
MEETING LAW OBJECTIONS
Gas we he pmitted by: 3
Jerry Van Gasse
4610 E Via Estrella
Phoenix, AZ 85028
(602) 622-3515
board@goodgoat.net

CONTENTS
Summary
a Pe os vat Pt
fo AE
Proposed Measure
wht
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SUMMARY
The Problem
State law protects a Council member who objects to an Open Meeting Law violation,
but only if the objection is on a public record. If the Attorney General sues a member
over a knowing violation, the court may decline to impose a civil penalty on a
member who “objected to the action of the public body” where “the objection is noted
on a public record” (Fact 4).
inside an executive session, there is no public record. Executive-session minutes
and discussions are confidential (Fact 1). People who receive executive-session
information may pass it on only through narrow routes (Fact 2). The City’s own
executive-session webpage tells readers that discussions “cannot be disclosed to
anyone” (Fact 9).
A member who objects behind closed doors therefore has no way to put that
objection where the statute says it counts. No published Phoenix procedure was
located for making such an objection or for noting it publicly. The Council's rules set
a procedure for announcing a conflict of interest, but contain no rule about executive
sessions at all (Facts 7-8).
What the Proposed Measure Does
Adopt an ordinance adding a new section to Chapter 2 of the Phoenix City Code that lets
a Council member object during an executive session that the Open Meeting Law is
being or would be violated, records the objection in the confidential minutes, and requires
the City Clerk to announce publicly, under the Council's agreement in each authorizing
vote, only the member's name, the agenda item and the fact of the objection.
Why the Council Should Adopt It
« It gives a state-law protection a working procedure.
Section 38-431.07(A) lets a court weigh whether a member's objection “is noted ona
public record” (Fact 4). No member should have to choose between keeping a confidence
and preserving that record. The ordinance lets the member do both. The substance stays
in the confidential minutes; only the member’s name, the agenda item and the fact of an
objection become public.
it uses the disclosure route the statute already provides.
Section 38-431.03(F) allows executive-session information to be disclosed “by agreement
with the public body” (Fact 2). The ordinance makes that agreement explicit, in public, in
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SUMMARY
the vote authorizing each session, and confines it to the narrow notice the ordinance
requires. Nothing else is released.
» It keeps a complete record where the law already looks for one.
State law requires executive-session minutes and allows the Council to include “other
matters as may be deemed appropriate” (Fact 5). The ordinance uses that authority to
record each objection and its disposition in the confidential minutes. A court may review
those minutes in camera in a challenge (Fact 6).
it treats objections the way the Council already treats conflicts.
Rule 13 tells a member with a potential conflict to declare it and step aside (Fact 8). The
ordinance gives a member with an Open Meeting Law concern a comparable, defined step.
it decides nothing about anyone's conduct.
The ordinance states that it determines no violation and guarantees no outcome. A public
notice that an objection was made says only that a member raised a concern. That is fair to
members, to the Council and to the public.
The Facts
1. Minutes of and discussions made at executive sessions “shall be kept confidential” except
from:
* members of the public body;
* officers, appointees or employees who were the subject of a discussion under
paragraph (A)(1):
* the auditor general in connection with an authorized audit;
* acounty attorney or the Attorney General investigating alleged violations.
20 4°24 fy27R4
2. Aperson receiving executive-session information under § 38-431.03 or § 38-431.06 “shall
not disclose that information except to the attorney general or county attorney, by agreement
with the public body or to a court in camera for purposes of enforcing this article.” Such a
disclosure does not waive any privilege, including the attorney-client privilege.
3. The public body “shall instruct persons who are present at the executive session regarding
the confidentiality requirements of this article.”
4. The Attorney General may sue an individual member of a public body for a knowing violation
of the Open Meeting Law. The court may impose a civil penalty, which the public body may
not pay on the member's behalf or reimburse. The statute adds: “If the court finds that a
person who might otherwise be liable under this subsection objected to the action of the
public body and the objection is noted on a public record, the court may choose not to
impose a civil penalty on that person.”
S. Every public body must provide for “written minutes or a recording of all their meetings,
including executive sessions.” Minutes of executive sessions must include:
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SUMMARY
« the date, time and place;
* the members present or absent:
* ageneral description of the matters considered:
* an accurate description of instructions given under paragraphs (A)(4), (5) and (7).
. ane Oulet matters as may be deemed appropriate by the public body.”
38.434 OC)
6. In an action challenging the validity of an executive session, the court may review the
minutes in camera. If it determines that the minutes are relevant and that justice so
demands, it them to the parties or admit them in evidence, in whole or in part.
may dlscloge
| awataa
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7. No rule in the Council's rules of proceedings, City Code § 2-60, refers to executive sessions.
None sets a procedure for an objection made during an executive session or for review or
cemeation et SACS SEES minutes.
Source: | vode § 2-60 (codif 12, 2026}
8. Four of the Council's rules bear on conflicts, abstentions and enforcement:
* Rule 13: “[w]hen a member recognizes a potential conflict of interest, the member shall
declare the potential conflict and refrain from voting or participating in any manner in
the matter.”
* Rule 7(i): “[a] failure to vote or a voluntary abstention shal! count as an ‘aye’ vote
unless excused by an announced conflict of interest.”
* Rule 8(d). a member may interrupt a speaker only “to make a point of order or point of
personal privilege.”
* Rule 10(a): the rules “shall be enforced by the presiding officer, subject to an appeal to
the Council.”
9. The City’s City Council Executive Session Agendas webpage states: “All discussions in E-
session, or practice for E-session, are confidential and cannot be disclosed to anyone.” The
Same paragraph states: “Materials, minutes, and discussions utilized during E-session are
confidential and Baninnt be saainans unless oirensise provided by law.”
Source: C rity ¢
10. City Code § 2-60 is established “[i]n accordance with the provisions of Chapter IV, Section 7
of the Charter,” and lists sixteen amending ordinances from 1996 to 2021 in its history note.
Rule 10(b) provides: “Unless otherwise provided by law, these rules may be suspended or
modified at any time, by a majority vote of the Council.”
SOUICE hoenix City Code § 2-60, int roduc tory cla AtS+
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See Ee) 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
Adopt an ordinance adding a new section to Chapter 2 of the Phoenix City Code that lets a
Council member object during an executive session that the Open Meeting Law is being or
would be violated, records the objection in the confidential minutes, and requires the City Clerk
to announce publicly, under the Council's agreement in each authorizing vote, only the
member's name, the agenda item and the fact of the objection.
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 an
ordinance.
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 it is not action on this petition. Referral, a staff report, a General Information Packet
eniry, continuation, or a consolidated vote also does not act upon this petition.
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ene
Current Code text used Phoenix City Code as published by the City’s codifier at
phoenix.municipal.codes, retrieved October 13, 2026
Codifier’s stated currency Current through Ordinance G-7524, passed June 17, 2026, as stated by
the codifier on October 13, 2026
Amendment marking Additions in CAPITAL LETTERS; deletions in strikethrough.
ORDINANCE G-
AN ORDINANCE AMENDING CHAPTER 2, PHOENIX CITY CODE, BY ADDING SECTION
2- , RELATING TO PUBLIC PRESERVATION OF OPEN MEETING LAW OBJECTIONS
MADE DURING EXECUTIVE SESSIONS.
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PHOENIX as follows:
SECTION 1. That Chapter 2, Article II of the Phoenix City Code is hereby amended by adding Section
2- to read as follows:
2- - PUBLIC PRESERVATION OF OPEN MEETING LAW OBJECTIONS MADE DURING
EXECUTIVE SESSIONS.
A. BEFORE THE PUBLIC IS EXCLUDED, THE MOTION AUTHORIZING EACH EXECUTIVE
SESSION SHALL INCLUDE THE COUNCIL’S AGREEMENT UNDER A.R:S. § 38-431.03(F) TO
THE LIMITED PUBLIC DISCLOSURE REQUIRED BY SUBSECTIONS D AND E IF A COUNCIL
MEMBER MAKES AN OBJECTION UNDER THIS SECTION DURING THAT EXECUTIVE
SESSION. NO EXECUTIVE SESSION SHALL BEGIN UNLESS THE PUBLIC VOTE
AUTHORIZING THE EXECUTIVE SESSION INCLUDES THAT AGREEMENT.
B. ACOUNCIL MEMBER MAY OBJECT DURING AN EXECUTIVE SESSION THAT DISCUSSION,
CONSIDERATION, CONSULTATION, INSTRUCTION, OR OTHER CONDUCT HAS VIOLATED
OR WOULD VIOLATE THE ARIZONA OPEN MEETING LAW. THE MEMBER SHALL MAKE THE
OBJECTION AUDIBLY DURING THE EXECUTIVE SESSION OR DELIVER IT IN WRITING TO
THE CITY CLERK BEFORE THE EXECUTIVE SESSION ENDS. THE OBJECTION MAY BE
MADE WITHOUT STATING CONFIDENTIAL SUBSTANCE.
C. THE CITY CLERK SHALL RECORD IN THE CONFIDENTIAL EXECUTIVE-SESSION
MINUTES:
1. THE NAME OF THE OBJECTING COUNCIL MEMBER;
2. THE TIME OF THE OBJECTION;
3. THE AGENDA ITEM TO WHICH THE OBJECTION RELATES:
4, THE OBJECTION AS STATED BY THE MEMBER; AND
) ANY RULING, RESPONSE, CORRECTIVE ACTION, OR OTHER DISPOSITION OF THE
OBJECTION.
D. WHEN THE COUNCIL RETURNS TO PUBLIC SESSION, THE CITY CLERK SHALL MAKE
THE FOLLOWING ANNOUNCEMENT BEFORE THE MEETING ADJOURNS:
DURING EXECUTIVE-SESSION CONSIDERATION OF AGENDA ITEM [AGENDA ITEM
NUMBER], COUNCILMEMBER [NAME OF COUNCIL MEMBER] MADE AN OBJECTION
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PROPOSED MEASURE
CONCERNING COMPLIANCE WITH THE ARIZONA OPEN MEETING LAW. THIS NOTICE
DISCLOSES ONLY THE MEMBER’S IDENTITY AND THE FACT OF THE OBJECTION
PURSUANT TO THE COUNCIL’S AGREEMENT UNDER A.R.S. § 38-431.03(F) AND DOES
NOT DISCLOSE THE OBJECTION’S SUBSTANCE OR OTHER CONFIDENTIAL EXECUTIVE-
SESSION INFORMATION.
IF THE COUNCIL DOES NOT RETURN TO PUBLIC SESSION BEFORE ADJOURNMENT, THE
CITY CLERK SHALL POST THE SAME NOTICE IN THE PUBLIC LEGISLATIVE FILE NO LATER
THAN ONE WORKING DAY AFTER THE EXECUTIVE SESSION ENDS.
E. THE PUBLIC MINUTES SHALL IDENTIFY THE OBJECTING COUNCIL MEMBER, THE
AGENDA ITEM, AND THE FACT THAT THE MEMBER MADE AN OBJECTION CONCERNING
COMPLIANCE WITH THE ARIZONA OPEN MEETING LAW. THE PUBLIC ANNOUNCEMENT
AND MINUTES SHALL NOT STATE OR IMPLY THE SUBSTANCE OF CONFIDENTIAL
DISCUSSION, LEGAL ADVICE, A COUNCIL MEMBER’S POSITION ON THE UNDERLYING
MATTER, OR ANY OTHER CONFIDENTIAL EXECUTIVE-SESSION INFORMATION.
F. THE AGREEMENT REQUIRED BY SUBSECTION A AUTHORIZES ONLY THE LIMITED
DISCLOSURE REQUIRED BY SUBSECTIONS D AND E FOR THE PARTICULAR EXECUTIVE
SESSION AUTHORIZED BY THAT VOTE. NO OTHER EXECUTIVE-SESSION INFORMATION IS
AUTHORIZED FOR DISCLOSURE BY THIS SECTION OR BY THE AGREEMENT.
G. NOTHING IN THIS SECTION DETERMINES WHETHER A VIOLATION OCCURRED, LIMITS
AN OBJECTION TO CONDUCT THAT IS ULTIMATELY ADJUDICATED TO BE UNLAWFUL, OR
GUARANTEES THAT AN OBJECTION WILL PREVENT LIABILITY OR A CIVIL PENALTY. THIS
SECTION CREATES THE PUBLIC RECORD OF AN OBJECTION CONTEMPLATED BY A.R.S. §
38-431.07(A) WHILE PRESERVING CONFIDENTIAL EXECUTIVE-SESSION INFORMATION,
H. THIS SECTION DOES NOT LIMIT DISCLOSURE TO THE ATTORNEY GENERAL, A COUNTY
ATTORNEY, A COURT CONDUCTING AN IN CAMERA REVIEW, OR ANOTHER PERSON WHEN
ACCESS OR DISCLOSURE IS AUTHORIZED OR REQUIRED BY A.R.S. §§ 38-431.03(B),
38-431.03(F), 38-431.06, 38-431.07(C), OR OTHER CONTROLLING LAW.
I. THIS SECTION IS NOT SUBJECT TO SUSPENSION OR MODIFICATION UNDER RULE 10(B)
OF SECTION 2-60.
SECTION 2. NO APPROPRIATION. This Ordinance appropriates no funds.
SECTION 3. SEVERABILITY. If any provision of this ordinance or its application to any person or
circumstance is held invalid, the invalidity does not affect any other provision or application that can be
given effect without the invalid provision or application.
SECTION 4. This ordinance shall take effect and become operative thirty days after
passage.
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