Petition 5 - Executive Session Confidentiality Notices.pdf

CITIZEN
PETITION
pursuant to Phoenix City Charter, Chapter IV, Sec. 22, requests the City Council to:
ADOPT A RESOLUTION ESTABLISHING
A CITY POLICY REGARDING
ACCURATE EXECUTIVE SESSION
CONFIDENTIALITY NOTICES
Submitted by:
Jerry Van Gasse
4610 E Via Estrella
Phoenix, AZ 85028
(602) 622-3515
board@goodgoat.net
Sie —L8 ~M~ RG

CONTENTS
why the Council
supporting facts.
Request for Council Action
@ legal request: a recorded vote of the City Cc within een days, apr roving or
akan
ihe Proposed M easure ex exactly as writte
eC AU oun
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SUMMARY
The Problem
The City publishes a confidentiality notice on its City Council Executive Session
Agendas webpage. It reads in full:
“All discussions in E-session, or practice for E-session, are confidential and cannot
be disclosed to anyone. E-session may only include individuals whose presence is
reasonably necessary for the public body to carry out its E-session responsibilities.
A.R.S. § 38-431(2). Materials, minutes, and discussions utilized during E-session
are confidential and cannot be disclosed unless otherwise provided by law.
individuals who violate E-session confidentiality can be personally liable for criminal
penaities, in addition to forfeiture of office or employment, A.R.S. § 38-431.07.”
Part of this notice is right. State law keeps executive-session minutes and
discussions confidential, and it limits who may attend. The rest misstates the law in
four ways:
* Materials. It declares “materials” used in a session confidential alongside
minutes and discussions. The statute protects minutes and discussions. The
Attorney General’s guidance says written materials do not become confidential
merely because they are discussed in executive session, and the Court of
Appeals has held that § 38-431.03(B) confidentiality cannot be extended
beyond its plain terms.
* Lawful routes. It says discussions “cannot be disclosed to anyone.” State law
names people who may receive that information, including the Attorney General
or a county attorney investigating a suspected violation, and a court reviewing
minutes privately.
° Undefined phrase. It claims confidentiality for “practice for E-session,” a
phrase the page does not define and no cited statute uses.
* Penalties. It cites A.R.S. § 38-431.07 for criminal penalties and forfeiture of
office or employment. That statute provides civil enforcement, civil penalties
and possible removal of a public officer who knowingly violates the law with
intent to deprive the public of information. It contains no criminal penalty and no
forfeiture of employment. Those consequences are in other statutes, with their
own conditions.
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SUMMARY
What the Proposed Measure Does
Adopt a resolution establishing the City policy that every notice, admonition,
acknowledgment, training material and instruction about executive-session confidentiality
must state the law accurately and completely, and directing the City Manager to correct
the City’s notices, admonitions, training and records guidance to match within sixty days
and to report on it within thirty days.
Why the Council Should Adopt It
People who attend executive sessions must be told the law accurately.
State law requires the Council to instruct everyone present about confidentiality (Fact 4).
That instruction is only worth giving if it is correct. A Councilmember, employee, attorney or
clerk who reads this notice is told that a civil enforcement statute carries criminal penalties.
The notice does not say which statutes actually do, whom they cover or what mental state
they require (Facts 6-7). Accurate guidance is how people comply.
The correction keeps confidentiality where the law puts it.
The resolution requires guidance that states what A.R.S. § 38-431.03 actually makes
confidential. What changes is the suggestion that an ordinary public record becomes
confidential because it was used in a session. Where a document is protected, it is
protected by an identifiable authority, such as privilege, a records exemption or the security
provision in § 38-431.03(A)(9) (Fact 5). It is not protected by having been in the room.
Lawful reporting routes must not be buried under an absolute warning.
The Attorney General or a county attorney may receive executive-session information
when investigating a suspected violation, and a court may review minutes privately (Facts
2-3). These are narrow routes, not permission to publish. A warning that information
“cannot be disclosed to anyone,” backed by threatened criminal penalties, foreseeably
discourages people from using them. The resolution requires the guidance to state each
route, including reporting a suspected violation.
No confidentiality claim without a definition and a legal basis.
The resolution bars any notice or instruction from claiming confidentiality for a term or
category it does not define and support with stated legal authority. That ends “practice for
E-session” as an unexplained warning.
The fix is narrow and fast.
The resolution changes no statute, Council rule or executive-session procedure. It requires
the City’s own guidance to match the law the City already applies:
* within sixty days, correct it, give the corrected versions to everyone who received the
old ones and withdraw the old versions:
* within thirty days, report publicly on progress.
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SUMMARY
The Facts
1. The City Council Executive Session Agendas webpage contains the confidentiality notice
quoted in full under “The Problem.” The page does not identify who wrote or approved the
notice or when it was published
2. “Minutes of and discussions made at executive sessions 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:
* [a] county attorney or the attorney general when investigating alleged violations of this
article.”
Source. ARS. § 38-431.03(B)
3. A person receiving executive-session information may not disclose it “except to the attorney
general or county attorney, by agreement with the public body or to a court in camera for
purposes of enforcing as article.” Such disclosure does not waive any privilege.
Source: A.R.S. § 38-431
4. “The public body shall instruct persons who are present at the executive session regarding
the confidentiality requirements of this article.”
source. ALR.S. § 38-431.03(C)
5. Records, documentation, notes and other materials made by or provided to representatives
in a security-related executive session “are confidential and exempt from public disclosure
under this ipl eg ae title 39 chapter 1.”
Source: ARS
6. A.R.S. § 38-431.07 provides for:
* suits to require compliance:
* civil penalties against a member who knowingly violates the law:
* attorney fees:
* possible removal from office of a public officer who knowingly violates the law “with
intent to deprive the public of information.”
In an action challenging an executive session, the court may review minutes in camera. The
statute GRRE fo | eriranie penalty and no forfeiture of employment.
7. A public 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 guilty “shall forfeit his public office or employment if any.”
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SUMMARY
38-57 OLA) 1B}.
8. The Attorney General's Agency Handbook states: “Written materials, however, do not
inal confidential merely bene tey are HIBGHESER in executive session.”
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9. The same Handbook lists the persons to whom executive-session minutes and discussions
may be disclosed. Besides the recipients named in § 38-431.03(B), the list includes:
* staff, to the extent necessary to prepare and maintain the minutes:
* the public body’s attorney, to the extent necessary to represent it;
* a court conducting a confidential inspection under § 38-431.07(C).
The Handbook identifies §§ 38-504(B) and 38-510 as the source of criminal consequences
for releasing executive-session
SEGRCEINSe information.
Source: Arizona Att 1 Agency Handbook. ch. 7 87
10. The Arizona Court of Appeals held that confidentiality under § 38-431.03(B) “is extended
only to ‘[m]inutes’ and ‘discussions, and that it “cannot extend the confidentiality
established in § 38-431.03(B) beyond its plainly stated terms.” The Arizona Supreme Court
dismissed a ome for review of ae al, 2026, and the renetanaletls issued Sept. 17, 2026.
» AriZ. ,, ADD Aveyrsy June 16. , 2026): EY Ariz. fri Capey Sup. Ct 1
11. Only the following may attend an executive session: members, specified officers, appointees
and employees, the Auditor General, and “individuals whose presence is reasonably
in eiclesr for ie public body to carry out its executive session responsibilities.”
necessary
i
12. The Phoenix City Charter provides:
* “Except for the purpose of inquiry, the Council and its Members shall deal with the
administrative service solely through the City Manager and neither the Council nor any
Member thereof shall give orders to any subordinates of the City Manager, either
publicly or privately.”
* “The Council shall act only by resolution, ordinance, franchise, or formal recorded
action.”
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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 a resolution establishing the City policy that every notice, admonition, acknowledgment,
training material and instruction about executive-session confidentiality must state the law
accurately and completely, and directing the City Manager to correct the City’s notices,
admonitions, training and records guidance to match within sixty days and to report on it within
thirty days.
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
resolution.
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, or a consolidated vote also does not act upon this petition.

PROPOSED MEASURE
RESOLUTION
A RESOLUTION ADOPTING A CITY POLICY ON ACCURATE EXECUTIVE-SESSION
CONFIDENTIALITY NOTICES AND INSTRUCTIONS AND DIRECTING THE CITY
MANAGER TO IMPLEMENT IT.
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF PHOENIX as follows:
SECTION 1. POLICY. That it is the policy of the City of Phoenix that every notice, admonition,
acknowledgment, training material, and instruction the City issues about the confidentiality of executive
sessions states the law accurately and completely, including what A.R.S. § 38-431.03 makes confidential:
that a record otherwise open to the public does not become confidential because it was discussed or used
in an executive session; each disclosure permitted by 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; and only the penalties that apply, with the statutes that impose them and the persons and conduct
they reach. No such notice or instruction may claim confidentiality for any term or category that it does
not define and support with stated legal authority.
SECTION 2. IMPLEMENTATION. That the City Manager shall implement the policy stated in Section
1 in the following City functions or programs: the City Council Executive Session Agendas webpage;
executive-session attendee admonitions and confidentiality acknowledgments; executive-session training;
and the guidance City staff use to decide public-records requests for materials discussed or used in an
executive session. The City Manager carries out this policy in coordination with the City Attorney and the
City Clerk. The City Manager shall implement the policy so as to achieve the following result no later
than sixty (60) days after this Resolution takes effect: each notice, admonition, acknowledgment, training
material, and instruction described above is corrected to conform to this policy; each corrected version is
published or distributed to every current recipient of the version it replaces; and each superseded version
is withdrawn.
SECTION 3. ADMINISTRATION. That the City Manager shall determine the assignment of City staff
and the methods of implementation consistent with this Resolution.
SECTION 4, REPORT AND FUNDING OR AUTHORITY REQUESTS. That:
(a) Report. No later than thirty (30) days after this Resolution takes effect, the City Manager shall place in
the public legislative file for Citizen Petition JV-20261021-13 and for this Resolution a written report that
describes the actions taken to implement Sections 1 and 2, and identifies any part of Section 2 that is not
complete, the reason, and the date by which the City Manager expects completion.
(b) Determination of a shortfall. If the City Manager determines, in the report under subsection (a) or in
any later report placed in the same legislative file before the Section 2 deadline, that any part of Section 2
cannot be accomplished within existing appropriations or existing legal authority, the report shall state
that determination, the specific cost or authority needed, and why existing appropriations or existing legal
authority cannot cover it. A part covered by such a determination is not due under Section 2 from the date
that report is placed in the legislative file.
(c) Authority the Council cannot provide. If any authority needed cannot be provided by the Council, the
report shall say so and identify who can provide it, and no agenda item is required for that authority. That
part is not required unless that authority is later provided. If no request under subsection (d) also covers
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PROPOSED MEASURE
that part, it is then due no later than sixty (60) days after the authority is provided; otherwise subsection
(e) governs.
(d) Agenda item. For any funds, and for any authority the Council can provide, the City Manager shall, no
later than fourteen (14) days after placing the report in the legislative file, place the request for those
funds or that Council authority on a Formal Council agenda as its own separately numbered item. Until
the Council takes a vote, as described in subsection (e), that provides or declines the funds or authority,
the City Manager shall place the request on each following regular Formal meeting agenda. A vote to
continue, table, refer or withdraw the item does not end this duty. If a vote expressly continues the request
for an unfunded remainder under subsection (e), this subsection continues to apply to that remainder.
(e) Completion. A part of Section 2 covered by a request under subsection (d) remains not due while the
request is pending, and shall be completed no later than sixty (60) days after all funds and authority
identified in the report under subsections (c) and (d) have been provided. That part ceases to be required
only upon a vote declining the funds or authority as described in this subsection, or, as to an unfunded
remainder, as provided in the last sentence of this subsection. Each of the following is a vote declining the
funds or authority, if taken at a meeting and reflected in the minutes of that meeting, whether by roll call
or by voice vote and including a unanimous vote: (1) a vote adopting a motion to deny or decline the
request; or (2) a vote on which a motion to provide the funds or authority fails, including by a tie under
Code § 2-60 Rule 7(k). A declining vote that is reconsidered and reversed under Code § 2-60 Rule 7(m) or
(n) is not a vote declining them. A motion to provide the funds or authority that fails for lack of a second,
is not called for a vote, or otherwise ends without a vote taken at a meeting and reflected in the minutes of
that meeting does not end the duty, and subsection (d) continues to apply. If the Council provides only
some of the funds or authority, the affected part of Section 2 shall be completed to the extent they allow,
no later than sixty (60) days after they are provided, and the remainder is declined unless that vote
expressly continues the request for the remainder.
SECTION 5. LIMITS. That this Resolution:
1. Does not amend or supersede the Phoenix City Code;
2. Appropriates no funds, and shall be implemented within the appropriations and legal authority
available at the time of implementation, including any provided by the Council under Section 4:
and
3. Does not direct or request the appointment or removal of any officer or employee, and does not
give orders to any subordinate of the City Manager.
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