Petition 12 - Public Observation of Executive Session Participation and Time.pdf

CITIZEN
PETITION
pursuant to Phoenix City Charter, Chapter IV, Sec. 22, requests the City Council to:
ADOPT AN ORDINANCE AMENDING THE
PHOENIX CITY CODE REGARDING PUBLIC
OBSERVATION OF EXECUTIVE SESSION
PARTICIPATION AND TIME
Submitted by:
Jerry Van Gasse
4610 E Via Estrella
Phoenix, AZ 85028
(602) 622-3515
board@goodgoat.net

CONTENTS
Summary
¥ ODOs sed Measure
Request for Council Action
rhe legal request: a recorded vote of the City Council, within 5, approving or
denying the Proposed Measure exactly as written
Proposed Measure
ine exact measure the Council is asked to vote on. written in the City’s own AUY form
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SUMMARY
The Problem
When the City Council meets in executive session, the public is excluded from the
discussion. State law also limits who may be in the room. Besides Councilmembers
and the officers and employees the statute provides for, only people “whose
presence is reasonably necessary” may attend. A meeting can include participants
“through technological devices,” so a session may include people who are not in the
room at all.
What the public can see of a Phoenix executive session is the posted notice. The
notices reviewed state the date, a 12:00 pm start, a room on the 12th floor of City
Hall and the list of items. They do not say:
« who will attend:
* how anyone will participate:
* when the session will end.
No published record of who attended an ordinary session, or when it began and
ended, was located.
Who is present, and for how long, is not part of what was said. The Arizona Court of
Appeals held in 2026, in a decision that is now final, that executive-session
confidentiality covers minutes and discussions, and that “attendance is nota
discussion.” Yet no Phoenix rule lets the public see attendance or timing. The
Council's rules of proceedings, City Code § 2-60, contain no rule addressed to
executive sessions.
What the Proposed Measure Does
Adopt an ordinance adding a new section to Chapter 2 of the Phoenix City Code that lets
the public observe, without hearing or seeing anything confidential, who enters, joins and
leaves each executive session and when it begins and ends. The City Clerk must
announce expected participants beforehand and post the participants and actual times
within one working day after the session.
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SUMMARY
Why the Council Should Adopt It
Attendance and time are facts about a session, not its content.
State law makes executive-session minutes and discussions confidential (Fact 4). The
Court of Appeals has held that this confidentiality does not reach attendance (Fact 6). The
ordinance makes public who is present and when, and bars transmission of anything said
or shown.
A legal limit the public cannot see gives the public no assurance.
Only people whose presence is reasonably necessary may attend (Facts 1, 8). The City’s
own webpage says so. Seeing who enters, joins and leaves lets the public watch that limit
being applied, without learning anything confidential.
The City already publishes timing for some sessions.
For three 2025 special meetings called to vote on an executive session, the City’s results
notices record when each meeting was called to order and when it adjourned (Fact 10).
The ordinance applies that practice to every session and adds who participated and how.
Remote participants should be as visible as those in the room.
A session can include participants joining by technological devices (Fact 2). The ordinance
requires each remote participant's name, title or role, and current participation status to be
displayed or announced when the person joins or leaves. The Attorney General's
handbook recommends procedures to “clearly identify” members participating remotely in
public meetings (Fact 11).
lt protects what the law protects.
Where controlling law, a court order, privilege, a recognized privacy interest or security
protection prevents naming a participant, the ordinance:
* substitutes a role description;
* records the reason in the confidential record:
« cites the authority publicly:
* withholds no more than the authority requires.
The Facts
1, “In addition to the members of the public body, officers, appointees and employees as
provided in section 38-431.03 and the auditor general as provided in section 41-1279.04,
only individuals whose presence is reasonably necessary in order for the public body to
carry out its executive session responsibilities may attend the executive session.”
2. A*meeting” under the Open Meeting Law means “the gathering, in person or through
technological devices. of a quorum of the members of a public body at which they discuss,
propose or take legal action.”
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WAL are

SUMMARY
3. Executive-session minutes must include, among other things. “The members of the public
we Feearded 2 as Beas present or absent.”
4. Minutes of and discussions made at executive sessions must be kept confidential except
from:
* the members of the public body that met:
* officers or employees who were the subject of a personnel discussion:
* the Auditor General for an authorized audit:
* acounty attorney or the Attorney General investigating alleged Open Meeting Law
violations.
5. Two statutes limit what must be disclosed:
* An executive-session notice “need not contain information that would defeat the
purpose of the executive session, compromise the legitimate privacy interests of a
public officer, appointee or employee or compromise the attorney-client privilege.”
* For executive sessions on security plans, procedures, assessments, measures or
systems, “Records, documentation, notes or other materials made by, or provided to,
the representatives pursuant to this paragraph are confidential and exempt from public
disclosure under this and 39, chapter 1.”
ee title
& 38-431.020), 38-431. 03(A} |
published
6. Ina opinion, the Arizona Court of Appeals held:
* the confidentiality established by § 38-431.03(B) “is extended only to ‘[mJinutes’ and
‘discussions’”:
* “attendance is not a discussion’;
* the court “cannot extend the confidentiality established in § 38-431.03(B) beyond its
plainly stated terms.”
it held that the trial court erred in treating mere attendance as confidential. The Arizona
Supreme Court dismissed a petition for review on Aug. 21, 2026, and the mandate issued
Sept. 17, 2026.
7. “The public body shall instruct persons who are present at the executive session regarding
the confidentiality requirements of this article.”
wource Sore A.R.S. ARS § & 22.434 38-4317 0310}. Neiey
Be
8. The City’s Executive Session Agendas webpage states: “E-session may only include
individuals whose presence is reasonably necessary for the public body to carry out its E-
session A.R.S. § 38-431(2).”
responsipilties.
ed Oct. 12, 2026 SOR
ars
9. The $ notices for the Council executive sessions of June 9 and Sept. 1, 2026 state the
date, a 12:00 pm start time and the location (Central Conference Room, 12th Floor, Phoenix
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SUMMARY
City Hall), followed by the agenda items. They do not list attendees, state an ending time or
address remote participation.
ae Dinnwaniv i Caineit & ra
10. The City’s Notices of Results for the special meetings of July 29, Sept. 17 and Nov. 18,
2025, each called to vote on an executive session, record:
* the call to order (12:04, 1:05 and 12:36 pm):
* approval of the vote to call the executive session:
* the executive-session item as “Discussed”:
* adjournment (2:08, 2:35 and 2:19 pm).
They do not list who
rat City
.
11. The Attorney General’s handbook states that members unable to attend a public meeting in
person “may participate by telephone or video or internet conference” if not prohibited by
applicable statutes. Among its guidelines, it recommends that public bodies “Develop
procedures to clearly identify members that are participating by telephonic, video or internet
communications.”
12. Phoenix City Code § 2-60, the Rules of Council Proceedings, contains no rule that refers to
executive sessions and no provision on remote, telephonic or video participation. Its history
note lists amending ordinances from 1996 through 2021. Among its rules:
* Rule 3 directs the City Clerk to prepare and publish the formal agenda.
* 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.”
* Rule 12 requires the Council to hold all meetings in accordance with the Arizona Open
Meeting Law.
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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
Adopt an ordinance adding a new section to Chapter 2 of the Phoenix City Code that lets the
public observe, without hearing or seeing anything confidential, who enters, joins and leaves
each executive session and when it begins and ends. The City Clerk must announce expected
participants beforehand and post the participants and actual times within one working day after
the session.
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
entry, continuation, or a consolidated vote also does not act upon this petition.
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ee
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 OBSERVATION OF EXECUTIVE-SESSION PARTICIPATION
AND TIME.
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 OBSERVATION OF EXECUTIVE-SESSION PARTICIPATION AND TIME.
A. EVERY EXECUTIVE SESSION SHALL BE CONDUCTED IN A PHYSICAL OR
TECHNOLOGICAL ARRANGEMENT THAT ALLOWS THE PUBLIC TO OBSERVE, WITHOUT
HEARING OR VIEWING CONFIDENTIAL COMMUNICATIONS:
1. THE IDENTITY OF EACH PERSON WHO ENTERS, JOINS, LEAVES, OR DISCONNECTS
FROM THE EXECUTIVE SESSION AND THE TIME OF EACH ENTRY, JOINDER,
DEPARTURE, OR DISCONNECTION; AND
2. THE TIME THE EXECUTIVE SESSION BEGINS AND THE TIME IT ENDS.
B. BEFORE EXCLUDING THE PUBLIC, THE CITY CLERK SHALL PUBLICLY ANNOUNCE THE
NAME, TITLE OR ROLE, AND PARTICIPATION METHOD OF EVERY PERSON THEN
EXPECTED TO ATTEND THE EXECUTIVE SESSION. IF ANOTHER PERSON LATER ENTERS
OR JOINS, THE PUBLIC OBSERVATION POINT SHALL IDENTIFY THAT PERSON BY NAME,
TITLE OR ROLE, AND PARTICIPATION METHOD AT THE TIME THE PERSON ENTERS OR
JOINS.
C. THE CITY SHALL PROVIDE A CONTINUOUSLY AVAILABLE PUBLIC OBSERVATION POINT
FOR THE DURATION OF THE EXECUTIVE SESSION. THE REQUIRED OBSERVATION MAY BE
PROVIDED BY DIRECT PHYSICAL OBSERVATION, A LIVE VISUAL DISPLAY, OR A
COMBINATION OF METHODS, PROVIDED THAT:
1. THE PUBLIC CAN OBSERVE THE IDENTITY AND ENTRY OR DEPARTURE OF EACH IN-
PERSON PARTICIPANT;
Nm THE NAME, TITLE OR ROLE, AND CURRENT PARTICIPATION STATUS OF EACH
REMOTE PARTICIPANT ARE PUBLICLY DISPLAYED OR ANNOUNCED WHEN THAT
PERSON JOINS OR LEAVES; AND
3. ACLOCK AND AN INDICATION WHETHER THE EXECUTIVE SESSION IS IN PROGRESS
REMAIN PUBLICLY VISIBLE.

PROPOSED MEASURE
THE PUBLIC OBSERVATION POINT SHALL NOT TRANSMIT OR EXPOSE AUDIO OR VIDEO
FROM INSIDE THE EXECUTIVE-SESSION ROOM, REMOTE EXECUTIVE-SESSION
COMMUNICATIONS, OR ANY CONFIDENTIAL DOCUMENT, DISPLAY, SCREEN, OR
COMMUNICATION.
D. NO LATER THAN ONE WORKING DAY AFTER THE EXECUTIVE SESSION ENDS, THE CITY
CLERK SHALL POST IN THE PUBLIC LEGISLATIVE FILE THE NAME, TITLE OR ROLE, AND
PARTICIPATION METHOD OF EVERY PARTICIPANT AND THE ACTUAL TIME THE
EXECUTIVE SESSION BEGAN AND ENDED.
E. IF DISCLOSURE OF A PARTICIPANT’S NAME IS PROHIBITED BY CONTROLLING LAW OR
A COURT ORDER, OR IF THE DISCLOSURE WOULD ITSELF REVEAL INFORMATION
PROTECTED FROM DISCLOSURE BY LAW, COMPROMISE THE ATTORNEY-CLIENT
PRIVILEGE, COMPROMISE A LEGITIMATE PRIVACY INTEREST RECOGNIZED BY A.R.S. §
38-431.02(1), OR DISCLOSE SECURITY INFORMATION PROTECTED UNDER A.R.S. §
38-431.03(A)(9), THE PUBLIC OBSERVATION POINT AND PUBLIC LEGISLATIVE FILE SHALL
USE A NONIDENTIFYING DESCRIPTION OF THE PARTICIPANT’S ROLE. THE CITY CLERK
SHALL CONTEMPORANEOUSLY DOCUMENT IN THE CONFIDENTIAL EXECUTIVE-SESSION
RECORD THE PARTICIPANT’S IDENTITY, THE FACTUAL BASIS FOR WITHHOLDING THE
NAME, AND THE SPECIFIC LEGAL AUTHORITY SUPPORTING THE WITHHOLDING. THE
PUBLIC LEGISLATIVE FILE SHALL IDENTIFY THAT AUTHORITY WITHOUT REVEALING THE
PROTECTED INFORMATION. NO MORE INFORMATION MAY BE WITHHELD THAN THE
IDENTIFIED INTEREST AND AUTHORITY REQUIRE.
F. THE EXECUTIVE SESSION SHALL NOT BEGIN OR CONTINUE WHILE THE PUBLIC
OBSERVATION POINT IS UNAVAILABLE OR WHILE INFORMATION REQUIRED BY THIS
SECTION IS OMITTED. CONFIDENTIAL AUDIO, VIDEO, DOCUMENTS, DISPLAYS, SCREENS,
OR COMMUNICATIONS SHALL NOT BE TRANSMITTED THROUGH THE PUBLIC
OBSERVATION POINT.
G. 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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