Mingus’ ratification vote puzzling, legally questionable
In its lawsuit to halt the November election on school district consolidation, one of the primary points of contention for Mingus Union High School is that petition circulators put the cart before the horse.
The law on which this consolidation election is based -- SB1254 -- was not yet a law when petitions were circulated. It was a gamble on the part of consolidation proponents that SB-1254 would be signed into law and made retroactive to Jan. 1, 2018.
Interestingly, in one of the latest developments in this soap opera otherwise known as consolidation, Mingus is likewise guilty of putting the cart before the horse. On August 9, the Mingus Union School Board unanimously approved authorizing its legal team to file a lawsuit to stop the consolidation election.
This came almost a month to the day after Mingus actually did file the lawsuit.
Mingus’ timing was odd, to say the least. Conventional thinking is that you first vote to authorize your lawyers to kick this thing into action, and then you file the lawsuit.
But the devil in this drama is buried in the details of case filings that already are beginning to read like War and Peace.
Three days prior to Mingus putting the cart before the horse, the school district was accused of breaking the open meeting law in a case filing on behalf of the Committee for Better Upper Verde Valley Schools. Lawyers for the pro-consolidation group contend Mingus never officially voted to file a lawsuit to block the consolidation election.
Mingus attorney Joseph A. Kanefield disagrees. He contends the public vote took place June 20. It was then that the Mingus board unanimously agreed “to retain as counsel the firms of Ballard Spahr and Gust Rosenfeld, based upon the stated reasons for the Executive Session agenda items and to explore the validity of SB1254.”
The stated reasons for the executive session were to “discuss and take action to retain legal counsel to represent the District in litigation to challenge legislation affecting unification/consolidation of the District with another school district and petitions and ballot questions concerning the unification/consolidation of the District with another school district.”
The legal question at stake is whether the June 20 action by Mingus qualifies as an official vote to file a lawsuit to block the consolidation election.
Instead of standing firmly on that position, Mingus chose to revisit the issue August 9. The school board chose to let their horse catch up to the cart by publicly voting to “initiate and continue the litigation” to stop the November consolidation election.
In the process, the school board very well opened a new can of worms for Mingus.
It has to do with the word “ratify.”
In an Aug. 9, 8:22 p.m., email to reporters at The Verde Independent and Larson Newspapers, Mingus officials shared the following.
“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 …”
The draft minutes posted to the Mingus website state the school board was taking this action for the purpose of “Settling question of open meeting impropriety with ratification.”
The problem with this for Mingus is that Arizona’s ratification statute allows elected officials to correct prior actions and a key element of the law is an admission of a violation of Arizona’s Open Meetings Law.
In doing so, has Mingus admitted to a violation of the law?
According to one of Arizona’s foremost media law attorneys, Dan Barr of the international firm Perkins Coie LLC., “While a public body may certainly discuss whether to bring a lawsuit with its attorney during an executive session, the decision to file a lawsuit must be made by a vote in a public meeting. Here, that vote apparently didn’t happen … and that would be a violation of the Open Meetings Law. However, the Open Meetings Law does allow public bodies to ‘ratify’ legal action taken in violation of the Open Meetings Law, if:
“1) the public body does so within 30 days of the violation – that happened here.
“2) The notice for the public meeting must be posted at least 72 hours before the meeting at which ratification will take place -- that did not happen here.
“3) The notice must contain ‘information on how the public may obtain a written description of the action to be ratified’ – it doesn’t look like that happened.
“4) The notice must include ‘a detailed written description of … all deliberations, consultations and decisions by members of the public body that preceded and related to such action.’ – doesn’t look like that happened.
“ 5) The minutes for the August 9 meeting must include the info in number 4 above. I just looked at those minutes, which discusses ‘Settling question of open meeting impropriety with ratification,’ but doesn’t provide the specificity that the Open Meetings Law demands for ratification.”
Mingus’ attorney sees it differently: “Our position is that the August 9 vote was not a ratification of the June 20 vote per 38-431.05, and therefore the requirements of that statute do not apply,” Kanefield stated in an email to The Verde Independent Saturday.
Mr. Kanefield further added, “Ratification means ‘to approve or sanction’ whether for purposes of 38-431.05 or not. The use of that word in the motion was no admission of any open meeting law violation.”
Again, if Mingus is hanging its hat on the June 20 vote, why revisit the issue Aug. 9? Why use the word “ratify” if there was not an intent to invoke the state’s ratification law? Finally, why would Mingus clearly state on its website that the August 9 vote was needed for “Settling question of open meeting impropriety with ratification.”
Monday, Mingus officials seemed to be ducking and running from that little word “ratify” as fast as they could.
There was an interesting omission from Mr. Ledbetter’s motion that was posted as draft minutes to the Mingus website Monday. Suddenly, Mingus wanted to claim Ledbetter’s motion never included the phrase, “or in the alternative, ratify.”
Late Tuesday morning, it seems Mingus officials realized they had been caught. Ledbetter’s original motion, with the phrase that includes the word “ratify” had been added back into the minutes on the school’s website.
Thursday, he said it.
Monday, he didn’t.
Tuesday, he did.
Which is it?
It looks like Mingus needs to quickly schedule another meeting.
This time to ratify the ratification.