Petition 3 - Executive Session Objections.pdf

CITIZEN
PETITION
pursuant to Phoenix City Charter, Chapter lV, Sec. 22, requests the City Council to:
PROVIDE ANSWERS
REGARDING EXECUTIVE
SESSION OBJECTIONS
Subrnitted by:
Jerry Van Gasse
4610 E Via Estrella
Phoenix, AZ 85028
(602) 622-3515
board@goodgoat net

CONTENTS
Summary
The petitioner's case: the problem, what the Proposed Me
snould adoot it, and the supporting facts
Request for Council Action 7
The legal request: a recorded vote of the City Council, within | fifteen days, approving or
denying the Proposed Measure exactly as written
piapesed Measure
sked to vote on. written : a in t
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SUMMARY
The Problem
State law protects a Councilmember 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).
That leaves basic questions with no public answer:
* How does a member object in the room?
* How does the objection reach a public record without revealing confidential
substance?
* What may the member say afterward?
* How does a member review the written minutes of the session, or a recording if
one is kept, and seek a correction?
No published Phoenix procedure was located for any of these steps. The Council's
rules set a procedure for announcing a conflict of interest, but contain no rule about
executive sessions (Facts 7-8).
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 the public legislative file for
this petition. The questions ask:
* how a Councilmember may object during an executive session, and how that
objection can be noted on a public record without disclosing confidential substance:
* what the member may say publicly afterward:
* how amember reviews and seeks correction of executive-session minutes.
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SUMMARY
Why the Council Should Adopt It
State law gives an objection a public-record role, and members need to know
how to use it.
Section 38-431.07(A) lets a court weigh whether a member's objection “is noted on a
public record” (Fact 4). A protection that depends on a public record is worthless if no one
can say how a confidential objection gets onto one. Question 2 asks the City to say.
Members should not have to guess what they may say.
The confidentiality statute has exceptions and a disclosure route “by agreement with the
public body” (Facts 1-2). The City’s webpage says, in different sentences, both that
discussions “cannot be disclosed to anyone” and that materials, minutes and discussions
cannot be disclosed “unless otherwise provided by law” (Fact 9). Question 4 asks the City
to state, in general terms, what a member may say publicly about the fact of an objection,
nonparticipation or departure, without touching confidential substance.
The minutes are the official record of a closed session, and their accuracy
cannot rest on an unwritten process.
State law requires “written minutes or a recording” of every executive session, and lets the
Council include in minutes “other matters as may be deemed appropriate” (Fact 5). Ina
challenge, a court may review those minutes (Fact 6). Question 6 asks how a member
reviews them and seeks a correction.
The Council already has a model for conflicts.
Rule 13 tells a member with a potential conflict exactly what to do: declare it and refrain
from participating (Fact 8). The Council's rules say nothing comparable about objections in
an executive session.
The questions are neutral and answerable.
Each can be answered with the current procedure, “none” or “the City cannot determine,”
with an explanation. They ask about general procedure and position, not about any
session, member or past event.
The Facts
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:
a county attorney or the Attorney General investigating alleged violations.
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
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SUMMARY
the public body or to a court in camera for purposes of enforcing this article.” Such a
eieaise ip does Te waive dated privilege, inciuding the attorney-client privilege.
Ource: ARS. &
3. The public body “shall instruct persons who are present at the executive session regarding
the of this article.”
lo rea irersetiks
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 a a is noted on a public record, the court may choose not to impose
a Behl whee on that person.”
5. Every public body must provide for “written minutes or a recording of all their meetings,
including executive sessions.” Minutes of executive sessions must include:
* 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);
* “and other matters ¢ as may be deemed appropriate by the public body.”
Source: ARS. § 38-431.01(C), (D)
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 may
uISeIOgE them to the paltles or admit them in evidence, in whole or in part.
RCO ALS. ADO RAB & 33-43 Ana
¢, 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
correction of
exeeuive session mnIEULGE:
Source: Phoenix
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 shall count as an ‘aye’ vote unless
excused by an announced conflict of interest.”
* Rule 8(d): a member may interrupt a speaking member 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
Coun”
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SUMMARY
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 cannot be disclosed unless otherwise law.”
provided by
Source: City of Phoenix culve Session
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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
questions, and to place the complete response in the public legislative file for this petition. The
questions ask:
* how a Councilmember may object during an executive session, and how that objection
can be noted on a public record without disclosing confidential substance;
» what the member may say publicly afterward:
* how a member reviews and seeks correction of executive-session minutes.
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 it is 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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EO MEASURE
Executive-Session Objections and Correction of the Record (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-20261021-04
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.
|. Describe the procedure that currently permits a Councilmember to object when the member
believes an executive-session discussion exceeds the noticed subject. Include to whom the
objection is made, what the member may say, how the objection is acknowledged, and what record
is created.
1(a). Describe the procedure that currently permits a Councilmember to object when the member
believes an executive-session discussion exceeds the invoked statutory exemption. Include to
whom the objection is made, what the member may say, how the objection is acknowledged, and
what record is created.
2. How may a member cause an objection arising during a confidential executive session to be “noted
on a public record” for purposes of A.R.S. § 38-431.07(A)?
2(a). How may the member do so without unlawfully disclosing confidential executive-session
substance?
3. May a Councilmember presently submit a contemporaneous confidential written objection
concerning an executive session?
3(a). If so, describe the complete process, including to whom and in what form it is submitted, the
governing authority, how receipt is acknowledged, where and how it is preserved, who may access
it, and how it is reflected in the official record.
3(b). If not, identify the authority Phoenix believes precludes it.
4. After the Council returns to open session, may a member state publicly, without revealing
confidential substance, that the member objected to some or all of the executive-session
discussion?
4(a). May the member state publicly that the member ceased participating?
4(b). May the member state publicly that the member left the executive session?
4(c). Describe any limitations on those public statements, including any material wording or
circumstance and what the member may and may not say.
Oat Describe Phoenix’s current general legal position on the conduct of a Councilmember after the
member objects that an executive-session discussion exceeds the noticed subject. Address stopping
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PROPOSED MEASURE
participation, requesting a ruling, abstaining, leaving, otherwise preserving the objection, continued
physical presence, and how any departure should be recorded.
5(a). Describe Phoenix’s current general legal position on the conduct of a Councilmember after
the member objects that an executive-session discussion exceeds the invoked statutory exemption.
Address stopping participation, requesting a ruling, abstaining, leaving, otherwise preserving the
objection, continued physical presence, and how any departure should be recorded.
The requested response to Question 5 and its subparts is a statement of the City’s general position, not
personal legal advice or an adjudication of individual liability.
6. Describe the procedure that allows a participating Councilmember to review draft executive-
session minutes.
6(a). Describe the procedure that allows the member to challenge draft executive-session minutes.
6(b). Describe the procedure that allows the member to review approved executive-session
minutes.
6(c). Describe the procedure that allows the member to challenge approved executive-session
minutes.
6(d). For each procedure, address claimed omissions or misstatements concerning a discussion,
instruction, attendance fact, objection, nonparticipation, or departure. Describe how a proposed
correction is preserved, who decides whether it is accepted, and the process governing that
decision. State expressly if the procedures do not differ between draft and approved minutes.
SECTION 3. Written-Answer Standards
1, 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.
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.
6. 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.
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-20261021-04:
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PROPOSED MEASURE
The complete written answers;
2. A response index matching every numbered question and every labeled subpart to its separate
answer or expressly stated inability to answer; and
3. 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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