Paradise Valley clarifies internal rules for public information disclosure among membership

Paradise Valley Town Hall is at 6401 E. Lincoln Drive in the Town of Paradise Valley. (File photo)

Paradise Valley Town Hall is at 6401 E. Lincoln Drive in the Town of Paradise Valley. (File photo)

An inadvertent e-mail shared between a sitting member of council and an incoming member has sparked a discussion over what kind of municipal information ought to be protected and when it is appropriate to share town secrets with incoming members of Paradise Valley Town Council.

Paradise Valley Town Council discussed the legal minutia of council communication during its Thursday, Nov. 17 town council meeting at Town Hall, 6401 E. Lincoln Drive.

The three topics of focus were: communication with council member-elects, communication of attorney-client privileged information and communication of town manager weekly reports.

Kevin Burke

Kevin Burke

“We have formalized an unwritten rule and we are feeling a little more insecure on it as we move forward,” said Town Manager Kevin Burke during the Nov. 17 study session discussion.

“This is not intended to be an exclusionary process. We want to get more of an indication from you as we are just looking to the resolve the issue.”

The unwritten rule, Mr. Burke says, was that incoming members of Paradise Valley Town Council would receive town staff communication following the results of the general election.

New council members are elected in November, but don’t take office until January. Some say the transition period should be used to bring new lawmakers up to date on town activities.

“This creates a rather long period of time for a transition,” a Nov. 17 internal memo from Mayor Michael Collins and Vice Mayor David Sherf states. “Consequently, staff is trying to balance providing the councilmembers-elect with information that gets them up to speed and respecting the governance powers of those still in office.”

The public discussion came about because a Town Attorney Weekly Report was mistakenly shared with council members-elect, according to town officials.

“I saw things that were forwarded on to the press, but not to our incoming council members, so I forwarded it,” said Paradise Valley Councilman Paul Dembow during the study session. “I have also seen police briefings go out that are public record that I have forwarded on. I think I would like to have a memo from Andrew (Miller) about what attorney-client privilege is.”

Paradise Valley Mayor Michael Collins spurred the conversation to clarify nuances of open meeting law as it pertains to electronic communication pointing out the typical procedure was to wait until after the general election to include incoming council members to internal communications.

“The precedent has always been after the general election,” he said at the study session. “Is this something that should be looked at? For future elections, is the old rule of waiting for the general election; is that still appropriate?”

An established privileged?

Mayor Collins points out only the governing body — in this case Paradise Valley Town Council — can decide what it deems privileged information aside from items protected by state statute through executive session.

Michael Collins

Michael Collins

“We cannot waive that privilege unless council makes a vote,” he said of the electronic media nuance to open meeting law. “Can we all agree to not share privileged information outside of council? Should that not be an expectation we have of each other?”

Andrew Miller, Paradise Valley Town Attorney, says he interprets open meeting law and the state statutes adopted to enforce those rules as giving certain information privileged status.

“On this, the client is the council,” Mr. Miller said to the line of questioning. “While executive session is completely different … the attorney-client privileged is owned by the council not state statute.”

State statute only specifically calls out executive session topics as protected by an attorney-client privilege, Mr. Miller says.

In Arizona, municipalities are given a provision within state statutes to discuss certain items away from the limelight of the public arena. The closed-door meetings are known as executive sessions.

An executive session is a gathering of a quorum of members of a public body from which the public body is excluded for one or more of the reasons set forth under ARS section 38-431.03, state law stipulates.

“Until they are seated they are not in a manner to make a decision so they are not the client,” Mr. Miller said of a legal interpretation.  “I do share the communication with the manager as he is what I will call ‘the administrator of the municipality.’  You are essentially a seven member board of directors.”

Paul Dembow

Paul Dembow

Councilman Dembow was steadfast in his assertion that if one member of council knows it then everyone should know it — and after the general election occurs, incoming members of council should be included in that information.

“If one of us knows it, I think everybody should know it. Anything else, I don’t think that is good government or transparent,” he said.

“The damage that is caused by the lack of transparency is far greater; that is the most important thing. I intend to share everything that is not protected by attorney-client privileged.”

Paradise Valley Councilman Jerry Bien-Willner echoed some of those same sentiments.

“I think it is entirely appropriate … that whoever is getting to the seat should be given the information,” he said at the study session.

“If the president-elect is getting secret service briefings, I don’t see any issue with incoming council members getting internal memos. Once people are elected I have no problem letting them have everything.”

Northeast Valley Managing Editor Terrance Thornton can be contacted at tthornton@newszap.com

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