COTTONWOOD – It’s been four weeks since the Mingus Union High School District served defendants with a lawsuit to keep voters from deciding whether Mingus should merge with the Cottonwood-Oak Creek School District.
One month later, the Mingus Union School Board voted on Thursday to approve, “or in the alternative, ratify the direction given to counsel to initiate and continue the litigation,” according to a draft of the minutes emailed to Verde Valley Newspapers, Inc. following Thursday’s meeting.
Mingus Union Superintendent Penny Hargrove said Friday that since the lawsuit “is a legal matter,” she could not say why the district governing board did not vote to approve to initiate and continue litigation until Aug. 9.
“I cannot answer these questions,” Hargrove said.
Jim Ledbetter, an attorney, and also a member of the Mingus Union School Board, said Friday that he drafted the approved motion “to alleviate the concern” of whether the board had violated Arizona’s open meeting law.
“Receiving legal advice and giving legal direction to counsel are some things that are not supposed to be discussed in public,” Ledbetter said. “When the board gives recommendation to file litigation, that doesn’t need to be done in public. The filing of documents, that is what’s done in public.”
According to the seventh edition of Arizona Reporter’s Handbook on Media Law prepared by the Arizona law firm of Perkins Coie LLP, “An executive session may be held only upon a public majority vote of a quorum of the public body … Significantly, "[l]egal action involving a final vote or decision shall not be taken at an executive session.’” A.R.S. 38-431.03(D).
According to Mingus attorney Joseph A. Kanefield, the school board’s Aug. 9 vote on the filing of the lawsuit was “unnecessary” because of the school board’s prior June 20 public vote following an executive session.
“The purpose of the June 20 executive session, as noticed, was to discuss “the retention of attorneys to represent the District in litigation to challenge legislation affecting unification/consolidation . . . .” After emerging from executive session, the board took a public vote to retain counsel “based upon the stated reasons for the Executive Session agenda items and to explore the validity of SB 1254.” Counsel was then retained and proceeded as directed by the Board to file the lawsuit after it was determined that SB 1254 was unconstitutional and illegal as applied to the consolidation effort.”
Further, Kanefield explained that the Mingus board’s August 9 vote was done in response to an open meeting law violation contained in a motion to dismiss the Mingus lawsuit filed in Yavapai County Superior Court Aug. 6 by attorneys representing the Committee for Better Upper Verde Valley Schools. “The vote on August 9 was simply to approve the final lawsuit. It was unnecessary but given the other side's open meeting violation allegation, the Board wanted to make absolutely clear to the public that it approved the filing of the lawsuit that occurred after the June meeting,” Kanefield stated in an email to The Verde Independent Saturday morning.
In the motion to dismiss the Mingus lawsuit, attorneys for the Committee for Better Upper Verde Valley Schools allege the action taken at Mingus’ June 20 meeting was to retain the firms of Gust Rosenfeld, P .L.C., and Ballard Spahr LLP to "to explore the validity of SB1254." The motion continues that the Mingus board never subsequently had a public vote to authorize the actual filing of the lawsuit to revoke the consolidation election before it was filed and defendants served.
“Here, the Mingus board did not come close to complying with the open meeting law,” the motion states. ”At no point did the Mingus board publicly vote to file or fund” the lawsuit, but only to retain counsel "to explore the validity of SB 1254."
To which Kanefield responds: “We can't prevent the consolidation proponents from distorting the truth and making baseless allegations. But we can provide the public with assurance that the issue here is not about the open meeting law. Rather, it's about the consolidation proponents' premature effort to invoke SB 1254 and the illegality of the law itself.
Plaintiffs and defendants
On July 11, Yavapai County School Superintendent Tim Carter, as well as the Yavapai County recorder, Yavapai County election director, and the Yavapai County Board of Supervisors were served as defendants because of their collective role as “parties to the process” of a possible consolidation between Mingus and the Cottonwood-Oak Creek School District.
Listed on the lawsuit as the Real Party in Interest is Committee for Better Upper Verde Valley Schools, the political action group led by former Mingus Union School Board President Andy Groseta.
In the lawsuit, known as CV201880188, the Mingus Union district challenges SB 1254 by “raising significant questions,” the draft minutes state.
With Mingus Union’s 5-to-0 vote Thursday, the board in effect has directed legal counsel to litigate nearly a month after filing the suit.
Joining Mingus Union High School District as plaintiffs are three Yavapai County electors Michael Westcott, Cyndi Ricca, and Kassidy Thagard.
Yavapai County Superior Court Judge David Mackey will hear the Mingus lawsuit on Aug. 23-24 at the Yavapai County Courthouse in Prescott, located at 120 S. Cortez St.
The draft minutes from Thursday’s meeting state:
“Mr. Ledbetter makes a motion to approve, or in the alternative, ratify the direction given to counsel to initiate and continue the litigation in CV201880188, wherein the M.U.H.S. District #4 challenges SB1254, raising significant questions, which may include but are not limited to the following:
“1. Can petitions be circulated in regard to a statute that does not, yet, exist?
“2. Can the Arizona Legislature potentially ignore the Arizona Constitution and create a statute which does not apply equally to all citizens and union school districts in the State of Arizona?
“3. Can a petition have validity if the petition’s wording is “covered up” or the signors are misled into signing by being – told among other things - that their signature is not in support of the petition but rather just to permit an election, when the petition language says otherwise?
“4. And, lastly, I move to allow the Attorneys to pursue challenges and to continue to litigate in the manner which they believe to be in the best interests of M.U.H.S. District #4.”
Ledbetter’s motion was unanimously approved.
Mingus Union Board President Anita Glazar was not available for comment.
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