Petition 10 - Executive Session Legal Advice Exemption.pdf

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

CONTENTS
Summary
rhe petitioner's case: the problem, what
should adept it, and the supporting facts.
Action
Request for aeney
st: a recorded vote of the City Cour
cia stp Measure
exact measure the Council is asked to vote on. written in the City’s own forn a
Citizen Petition JV-20261021-03 - Presented by Jerry Van Gasse for GOODIGOAT - goodgoat net

SUMMARY
The Problem
State law allows the Council to close a meeting to the public only for listed purposes.
* Paragraph (A)(3) is “discussion or consultation for legal advice” with the City’s
attorneys.
* Adifferent paragraph, (A)(4), lets the Council “consider its position and instruct
its attorneys,” and only on contracts, litigation and settlement.
* Collective decisions must be made in public.
Phoenix cites paragraph (A)(3) alone for many executive-session items. They
include items whose titles refer to ordinances, City policies and programs, such as
camping enforcement, heat safety, middle housing, park rules and immigration
policies (Fact 6). For those items, the only limit on what the Council does behind
closed doors is the meaning of “legal advice.”
No published Phoenix rule, guideline or training material was located that says
where legal advice ends and discussion among Councilmembers begins. The
Council's rules of proceedings, City Code § 2-60, contain no rule about executive
sessions (Fact 7). Residents and newly seated Councilmembers cannot know where
the City draws the line, or who is expected to act when a discussion crosses it.
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 five questions about what Phoenix permits Councilmembers to discuss among
themselves in an executive session held for legal advice under A.R.S. § 38-431.03(A)(3)
alone, and who is responsible for recognizing and responding when a discussion
exceeds the noticed subject or the invoked exemption. The complete response must be
placed in the public legislative file for this petition.
Why the Council Should Adopt it
The meaning of “legal advice” sets the limits of every (A)(3) session.
Paragraph (A)(3) is about receiving legal advice. Paragraph (A)(4), which lets the Council
consider its position and instruct its attorneys, is limited to contracts, litigation and
settlement (Facts 1-2). When an item is noticed under (A)(3) alone, as many Phoenix
Citizen Petition JV-20261021-03 | Presented by Jerry Van Gasse for GOODIGOAT goodaoat ne! Page 3 of 9

SUMMARY
items are (Fact 6), the room for discussion is set by what “legal advice” covers. Questions
1-4 ask the City to say, in public, how it reads that limit.
individual members can be sued for knowing violations.
in a suit brought by the Attorney General, a court may impose a civil penalty on an
individual member who knowingly violates the Open Meeting Law, and the City may not
pay it for the member (Fact 9). Members, and the attorneys and clerks in the room, are
entitled to a clear written statement of how the City understands the limits of an (A)(3)
session.
The rules name an enforcer for open meetings and say nothing about closed
ones.
The presiding officer enforces the Council's rules, and a member may interrupt to raise a
point of order (Fact 8). No rule addresses executive sessions (Fact 7). Question 5 asks
who, if anyone, is expected to recognize and respond when a discussion goes beyond the
noticed subject or the cited exemption.
The questions are neutral and answerable.
Each can be answered “yes,” “no,” “the City cannot determine” or “no written policy exists,”
with an explanation. The questions ask about Phoenix's current rules and positions, not
what was said in any session.
The Facts
1. Arizona law permits a public body to hold an executive session “only for” the purposes it lists.
Paragraph (A)(3) is “Discussion or consultation for legal advice with the attorney or attorneys
the
OF public a
OHUCE ARS & a 28.434 O3¢
A separate paragraph, (A)(4), permits discussion or consultation with the body's attorneys “in
order to consider its position and instruct its attorneys.” It applies only to:
* contracts that are the subject of negotiations:
* pending or contemplated litigation:
°
Settlement cISCUSEIaUS:
S RO AB O3 fA}
Two limits apply in every executive session:
* Legal action involving a final vote or decision may not be taken in an executive session,
except that the body may instruct its attorneys or representatives as provided in
paragraphs (A)(4), (5) and (7).
* A public body may not discuss in executive session any matter not described in the
notice of the session, 1, except as provided in § 38-431.02(l) and (J).
Source: A.R.S. § 38-4316
“Legal action” means “a collective decision, commitment or promise” made by a public body,
and all legal action of bodies must occur during a public meeting.
“public
source: mo ALR.S. &f a §§ 38-431(3), rage) 38-431.01(A) 4 H4tAy
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SUMMARY
S. Phoenix's executive-session notices state that the session is “authorized by A.R.S.
§98-431.03, A.1 through A.7,” and then cite, for each agenda item, the specific paragraph or
paragraphs relied on.
6. Phoenix notices cite paragraph (A)(3) alone for items whose titles refer to ordinances. City
policies or programs. For example:
* “Camping and Trespass Enforcement” (Mar. 3, 2025, Item 1):
* “Immigration Policies” (June 10, 2025, 2:00 pm session, Item 1);
* “Middle Housing” (Oct. 7, 2025, Item 11);
* “Heat Safety Ordinance Amendment” (Oct. 28, 2025, Item 14, and Nov. 4, 2025, Item 2):
* “Parks Related Ordinances and Code of Conduct” (Nov. 4, 2025, Item 4):
* “Medical Treatment in the Park” and “Food Sharing in the Park” (Feb. 24, 2026, Items 5
and 6):
* “Council's Community Transparency Initiative” (Mar. 10, 2026, Item 4).
On several of the same notices, cite (A)(3) together with (A)(4).
—— ane si Kem
7. The Council's rules of proceedings, City Code § 2-60, are established “[i]In accordance with
the provisions of Chapter lV, Section 7 of the Charter.” Rule 12 requires the Council to “hold
all meetings and conduct all business in accordance with” the Arizona Open Meeting Law. No
rule in ae 2-60 refers i aa sessions.
ce. Phoenix City Code § 2-60, introductory clause and Rule 12 (codified text viewed Oct RO N sy RO
8. Two of the Council's rules concern enforcement and interruption:
* Rule 10(a): the Council's rules “shall be enforced by the presiding officer, subject to an
appeal to the Council.”
* Rule 8(d): while a member of the Council is speaking, no other member may interrupt
to make a point of order or point of personal privilege.”
aan
Source. Phoenix City Code § 2-60 Rule s Bt 1} 164 eh
9. 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 on each person who
knowingly violates the law, and the public body may not pay the penalty on the member's
it.
behall or es
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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 five
questions about what Phoenix permits Councilmembers to discuss among themselves in an
executive session held for legal advice under A.R.S. § 38-431.03(A)(3) alone, and who is
responsible for recognizing and responding when a discussion exceeds the noticed subject or
the invoked exemption. The complete response must be placed in the public legislative file for
this petition.
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, anda
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.

Scope of the Executive-Session Legal-Advice Exemption (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-20261021-03
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. When an executive session is noticed only under A.R.S. § 38-431.03(A)(3), may Councilmembers
discuss the underlying matter with one another, as distinct from providing facts to counsel and
receiving or requesting legal advice?
Nm When only A.R.S. § 38-431.03(A)(3) is invoked, what factual communication is reasonably
necessary to provide legal advice?
2(a). What factual communication is reasonably necessary to understand legal advice?
2(b). When does questioning or discussion of underlying facts become member-to-member
deliberation outside the legal-advice exemption?
3. When only A.R.S. § 38-431.03(A)(3) is invoked, may Councilmembers discuss among themselves
the implications of the legal advice they receive? Answer each of the following separately:
3(a). May Councilmembers discuss the practical implications?
3(b). May Councilmembers discuss the political implications?
3(c). May Councilmembers discuss the policy implications?
3(d). May Councilmembers discuss the operational implications?
3(e). May Councilmembers discuss the budgetary implications?
3(f). May Councilmembers discuss the financial implications?
4. When only A.R.S. § 38-431.03(A)(3) is invoked, may Councilmembers discuss among themselves
how the Council should respond to the legal advice? Answer each of the following separately:
4(a). May Councilmembers discuss alternatives?
4(b). May Councilmembers discuss preferred outcomes?
4(c). May Councilmembers discuss individual members’ positions?
4(d). May Councilmembers seek or discuss consensus?
A(e). May Councilmembers discuss implementation?
4(f). May Councilmembers discuss what action the Council should take?
5. Under Phoenix’s current rules and instructions, who is responsible for recognizing when an
executive-session discussion exceeds the noticed subject?
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PROPOSED MEASURE
5(a). Who is responsible for recognizing when an executive-session discussion exceeds the invoked
exemption?
5(b). Who is responsible for responding when an executive-session discussion exceeds the noticed
subject?
5(c). Who is responsible for responding when an executive-session discussion exceeds the invoked
exemption?
5(d). What responsibility or duty, if any, is assigned to the chair?
5(d)(1). Answer separately for a discussion that exceeds the noticed subject.
5(d)(2). Answer separately for a discussion that exceeds the invoked exemption.
5(e). What responsibility or duty, if any, is assigned to the advising attorney?
5(e)(1). Answer separately for a discussion that exceeds the noticed subject.
5(e)(2). Answer separately for a discussion that exceeds the invoked exemption.
5(f). What responsibility or duty, if any, is assigned to the clerk?
5(f)(1). Answer separately for a discussion that exceeds the noticed subject.
5(f)(2). Answer separately for a discussion that exceeds the invoked exemption.
5(g). What responsibility or duty, if any, is assigned to each individual Councilmember?
5(g)(1). Answer separately for a discussion that exceeds the noticed subject.
5(g)(2). Answer separately for a discussion that exceeds the invoked exemption.
5(h). What do Phoenix’s current rules and instructions require if the discussion continues after it
exceeds the noticed subject?
5(i). What do Phoenix’s current rules and instructions require if the discussion continues after it
exceeds the invoked exemption?
SECTION 3. Written-Answer Standards
1. Reproduce each numbered question, labeled subpart, and nested 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.
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.

PROPOSED MEASURE
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-20261021-03:
1. The complete written answers;
2. A response index matching every numbered question, every labeled subpart, and every nested
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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