Executive session decision questioned in hindsight
Council introduces item to be discussed at a future City of Cottonwood meeting
Late last month, the Cottonwood City Council went behind closed doors to interview candidates interested in filling the open council seat left vacant by Ing Kiland. Although most agree that the decision to conduct the interviews in executive session is legal, some believe it should have been done in public.
"I feel passionately that these proceedings should be held in public," Council member Diane Joens said. "I am submitting an agenda item for this discussion and I have used Clarkdale's code as an example."
The Town of Clarkdale passed an ordinance earlier this year that states all considerations and discussions of applicants to fill vacancies on the town council must be held in public session. Town Clerk Joyce Driscoll said this includes interviewing.
The town passed the ordinance as a reaction to controversy that arose out of a City of Avondale decision to go into executive session to discuss appointing a new mayor.
Avondale Director of Communications and Public Affairs Pier Simeri said council went into executive session to discuss the appointment, then came out and voted in front of the public.
"Our city attorney felt strongly that we did not violate open meeting laws," Simeri said.
However, criticism arose and Simeri said, a short while later, a council seat opened up and the city decided to conduct that appointment in public.
"As usual, hindsight is 20-20," Cottonwood Council member Karen Pfeifer said. "It is so unusual for us to fill a council position, perhaps we did not give it enough thought, but did what may have been done in the past and treated this as a personnel appointment not a political appointment and the guidelines are different."
Mayor Ruben Jauregui said City Attorney Johnny Guthrie advised the council to go into executive session because it was a personnel issue.
"Some city and town attorneys advise their clients that council appointments can be treated under the executive session statutes that allow certain personnel matters to be discussed," Clarkdale Town Manager Gayle Mabery said in March. "Our town attorney has always advised the opposite. Our council wanted to protect against any ambiguity and have it written directly into our ordinance that such deliberations should occur in open sessions."
Many believe that council members, being that they are elected officials, are not personnel. However, Guthrie said since they are paid, they are personnel.
"I think the major problem is simply that the City of Cottonwood does not have a policy concerning whether to hold interviews in public or executive session," Joens said. "Our legal counsel advised us that it was a personnel matter and that it is legal to hold such proceedings in executive session, which it is."
Attorney Dan Barr, who provides legal advice for the Arizona Newspapers Association, agreed that discussion of appointing a public officer in executive session is permissible.
"After reading the open meeting laws, I can't say this is a gross violation," he said.
However, Barr said, "As a matter of policy, the appointing of a new council member should be done as publicly as possible."
Many on the council agreed that there was intent to protect the privacy of the candidates.
"We were being so careful not to violate the privacy of the applicants, as we do employees, we did the interviews in executive session and discussion in the same way," Pfeifer said. "Afterwards it was pointed out that a political appointment doesn't fall in the same category as employee interviews. I think, in this case, we were being over-protective of the privacy of the people that applied."
Vice Mayor Randy Lowe believes that it is important that the interviews are held in executive session because it allows the council and the candidates to be more candid with each other.
"I can see where the interviews could, and maybe should, for the public's benefit, be done in the public forum," he said. "I don't, however, believe we should conduct our deliberations in public. There is a candidness that could be potentially embarrassing to someone ... we need to be able to be candid with each other as council members and not be concerned about potentially hurting someone's feelings."
Lowe added that Cottonwood does not have a policy to guide this procedure and he thinks it should stay that way.
Guthrie said if the council did want to establish some sort of policy, he would structure it in any way the council wants.
"The more public it can be would have less of an appearance of impropriety," he said.
City Manager Brian Mickelsen said the town received Joens' request to put this issue on a future agenda. Mickelsen said the city will know in a week or so the exact date for when the issue would be discussed.
"I believe, in the future, this will be a public process, as we now are aware of the differences in [personnel and political appointments]," Pfeifer said.