KGUN9 On Your Side, Tucson News, Weather & SportsDouglas Stonewalling Day 109: Latest vote may violate two laws
If the lawyers who are helping the Douglas School Board conceal public documents from the public were a basketball team, they'd have five players on the court and at least one on the bench. By our count, to date six different attorneys from three different firms and agencies have had their fingerprints on KGUN9's public records requests. That doesn't count Cochise County Attorney Ed Rheinheimer, who's been hovering out of bounds, not responding to our e-mails and so far not directly involving himself in the actions of his employees (as far as we know). But his office is playing hard and fast. The District legal team is doing a good job of keeping the ball bouncing around the legal arena. But despite all that legal brainpower, KGUN9 has learned the board's latest vote for secrecy may be a violation of not one, but two state laws. Bear with us -- this is complicated, but we're going to try to help you follow the action.
KGUN9 filed the first of its public records requests related to the top secret board investigation of superintendent Earl Pettit on October 19. When it became clear that Pettit's three vocal opponents on the board -- Chuck Hoyack, Patricia Lopez, and Ed Rivera -- were simply ignoring those requests, we asked our legal team to get involved. The District referred our lawyers to Michelle Parker, of Magnum Wall Stoops & Warden. She is the District's primary legal provider under the terms of its agreement with the Arizona School Risk Retention Trust. Parker shuffled the assignment off to Kellie Peterson, an attorney in the same firm. Negotiations began. Meanwhile, when KGUN9 obtained invoices showing that civil deputy county attorney Anne Carl had taken charge of the Pettit investigation, we sent her a public records request, too. Carl rejected it, asserting attorney-client privilege. When KGUN9 disputed the validity of that claim, on December 21st she sent us this message: "If you dispute this, please provide the legal authority for doing so." Since we journalists clearly are not lawyers, we took this as an invitation to have our legal team file a formal demand letter. Accordingly, our lawyers began drafting one.
On Tuesday the 22nd, the board met to get the Pettit report and discuss his fate. Anne Carl could not attend the meeting, and arranged for a fourth attorney, Candyce Pardee of the law firm Udall Shumway & Lyons, to be there. After hearing a summary, the board voted to let Pettit finish his contract. Then, with Pardee standing by silently, the board voted to keep the report confidential -- an act that flies directly in the face of Arizona public records law.
The next day, as Carl had invited us to do, 9 On Your Side filed a very detailed demand letter. David Bodney of the law firm Steptoe & Johnson sent an 8 page letter citing specific laws and cases to show how the documents KGUN9 is seeking are public record and that any claims to the contrary don't hold up. Because we were getting confused about who is representing whom and for what issues, Bodney copied that letter to both Carl and Parker, among others. The letter requested a response by Monday the 28th.
That prompted a call from a fifth lawyer, David Fifer of the Cochise county attorney's office. He told Bodney that Carl was not immediately available to respond due to the holidays and a family emergency. Fifer asked for a one day extension of the deadline. Bodney told Fifer to proceed under that assumption. Later a sixth lawyer -- chief civil deputy county attorney Britt Hansen, who is Carl's immediate boss -- called and left a message about the KGUN9 letter. Hansen stated that he wasn't sure if the Pettit report had been presented to the board the previous night (it had been), but said, "If it's done and ready for the public, there's no reason that you can't have it." Hansen said he was handicapped by the fact that he was on vacation (you have to give him credit for taking time out to deal with this), but said he was trying to track down the information. He concluded the call by saying he would "get the information to you as soon as I can."
It's important to keep in mind that at this point, KGUN9 was (and still is) seeking two sets of records on behalf of our viewers: the $30,000 report on Pettit prepared by private investigator Patrick Cooper along with and associated notes and supporting documents, and also various public records in the hands of board members Ed Rivera and Patricia Lopez.
The agreed-on Tuesday deadline came and went -- nothing. Bodney called and left messages. That resulted in a very chilly e-mail response from Hansen the next day, who wrote: "I did manage to contact both Ms. Pardee and Mr. Cooper. I learned that Mr. Cooper had presented the report to the Board at its meeting on the evening of December 22nd. Because the Board had not had a chance to read the extremely lengthy report (I believe it is in excess of 300 pages)—it was presented to them at the meeting for the first time—and because the report was not entirely complete (some exhibits were not attached), the Board voted not to release the report to the public until it was complete with exhibits and members had a chance to actually read it. If you had returned my phone call, you would have learned this."
Ouch. In his voice mail message Hansen had not asked for a return call, but never mind. As for the other records KGUN9 is seeking, Hansen referred us back to Michelle Parker, whom he'd said had already addressed our concerns. Well, not quite. Parker, as you'll recall, had referred us to Kellie Peterson. On the 23rd, the same day Hansen left his voice mail message, Peterson wrote us saying that she would not be able to produce any records until January 4th at the earliest due to the District being on holiday break. She went on to explain, "... The District is represented by multiple attorneys. Generally our office works directly with the administration while Anne Carl of the Cochise County Attorney's office works directly with the Board. However, we represent the District as an entity, and try to work together to provide consistent advice to our mutual client. Because Ms. Carl works with the Board members more often, she has been assisting me in obtaining responses from Board members Hoyack, Lopez, and Rivera.... Ms. Carl and I are still working to get the records or other response from Ms. Lopez and Mr. Rivera. Ms. Carl is also out over the holiday season, but upon her return we will work together to respond to your remaining requests."
If you're still not sure who's holding the ball here, here's a simple explanation of what this adds up to. Magnum Wall Stoops & Warden represents the District's administrative side, but not Pettit, who has his own attorney. But it also represents the District as an entity, and that includes the board. But the board doesn't usually work with Magnum Wall Stoops & Warden, typically working instead with Anne Carl of the Cochise County Attorney's Office. Carl therefore represents the Board plus the District as an entity, but does not always work with the District's administrative side. Magnum Wall Stoops & Warden does that. But on the night of the board meeting in question, Carl was not available, so she had Candyce Pardee of Shumway & Lyons step in for her, representing the board and the District as an entity but not the administrative side in this instance or Pettit, who as stated has his own attorney. Because Carl works with the board, she's been dealing with the board-related portion of KGUN9's public records request. But because the records requests deal with records that are in the possession of the administrative side, plus the board, plus the District as an entity, Carl has been working with Kellie Peterson of Magnum Wall Stoops & Warden to get the board's records to her, so that Peterson can get them to us. That is why Carl's boss, Britt Hansen, referred us to Michelle Parker of Magnum Wall Stoops & Warden, who in turn referred us to Kellie Peterson of Magnum Wall Stoops & Warden to get those records. But Kellie Peterson is relying on Carl to get them for her, and Carl has not been available this week and last. See how simple that is?
If you're not confused yet, you're not paying attention.
In his e-mail of the 23rd, Hansen tells us he expects the board to release the Cooper report at its next meeting. However, the board itself has made no such promise. In proposing the motion to conceal the document, Hoyack put it this way: "Five of us have not read it in its entirety. We will receive additional addendum and exhibits and, because of the confidentiality of District employees, I ask that we keep this between us for the time being." The motion passed with no further discussion. The vote was along the usual lines, with Hoyack, Lopez and Rivera voting to continue the secrecy, and Kramer and Ramos opposing. There was no specific promise of nor timetable for future release.
What's lost in all this is that regardless of whether the documents may or may not be released at some future date, the board's actions are almost certainly illegal. A record submitted to a public body for review in an open meeting is a public document - period. Bodney says the idea that such a document could be kept confidential is "almost inconceivable.... It's difficult to imagine any circumstances that would justify the concealment of such a record."
Bodney tells KGUN9 that state law specifically requires prompt disclosure. There is no provision to allow an indefinite delay while the officials mull it over. There's no allowance of a review period so that the politicians can determine, before releasing them, whether the documents might be embarrassing, offensive, or politically damaging. The public has a right to see them. Now. Not tomorrow, not next week, not two weeks from now. Today. This very second. Whether the board likes it or doesn't like it is not a factor; it simply has no authority to countermand state law. Says Bodney, "A vote to conceal a public record publicly viewed by a public body at an open meeting is at best highly suspect. And presumptively, a violation of the public records law."
At what point does the board's cheerful disregard for the law cross the line into actively thumbing its collective nose at it? Says Bodney, "Given the repeated acts of concealment and the apparent disregard for the public's right to inspect public documents, there is certainly evidence to suggest that the board doesn't take its duties under the state open government laws seriously enough." Bodney adds that board's vote to keep secret a clearly public document is "unprecedented."
Not only is the concealment almost certainly illegal -- the legality of the vote itself is in question. Under state open meeting law, the board can only take action on specific proposals publicly posted on the agenda 24 hours in advance. The proposal to keep the record secret was not on the agenda. Instead, there was only a vaguely worded agenda item allowing the board to "take action regarding" the report. Says Bodney, "Any reasonable person reading the agenda would conclude that the board intended to discuss the report at the meeting, not vote to hide it from public inspection." Bodney feels any attempt to interpret that agenda item as a justification for a concealment vote "violates the letter and the spirit of the open meetings law." As 9 On Your Side documented in our last report, open meetings violations are an issue with which this board has a considerable amount of prior experience.
Despite all that, and despite the fact that the office of the county attorney has a duty under state law to uphold state statues, that office defends the board's actions with a perfectly straight face. Hansen says that while he does expect the board to release the report at its next meeting, "... since the Board voted not to release the report until then, we have no discretion to release it." Bodney replied with an e-mail reminding Hansen of what the law says. As of this posting, there's been no response.
Will 2010 finally see the end of the Douglas School Board's efforts to hide the public's business from the public? Stay tuned. The board's next regular meeting is Tuesday, January 12th. In the meantime, here's a question you might ponder. With at least six attorneys now playing defense for the District, who do you think is paying the legal tab for the board's efforts to keep you in the dark?
Forrest Carr
fcarr@kgun9.com
