Maricopa Board of Supervisors Should Unmask The Mask Discussion

The CDC recommends wearing masks to protect yourself from COVID-19. [Photo courtesy CDC]

The residents of Maricopa County (MC) have been under a draconian “mask mandate” since their Board of Supervisors (BofS) snuck it through on a Friday evening three months ago. A useless mandate, in my opinion, with no scientific validity, which is adversely affecting the emotional wellbeing of our children and overall quality of all our lives – those of us who live, do business in or visit Maricopa County.

There is a posting on social media of an alleged Board of Supervisors meeting on Monday, Sept 21st to get “legal advice” under ARS 38-341.03(A)(3) on the “County Response to Covid-19: Mask Regulations” and “Elections: Early Ballot Voters: Election Day Procedures.” I say allegedly because now this meeting agenda is nowhere on their website that I have been able to find. What now appears is an “upcoming meeting” agenda for Monday, Sept 21 which reads:

  Vote to convene in Executive Session to consider the items on the Executive Agenda dated Monday, September 21, 2020, for Board of Supervisors and relevant Special Districts pursuant to the statutory authority listed for each item.

But no mention of the actual items on the Executive Agenda. Even if the agenda that had been posted on social media could be found, and while I admit I may just be missing it (but I’m not the only one), here in lies the problem.

ARS 38-431.03(A) defines only nine reasons that a public body can lawfully go into an Executive Session; one of which #3 being a “get out of jail free” card for “legal advice”. So, using ARS 38-431.03(A) (3) bring in an attorney (in person or on the phone or Skype or Zoom…) and the public body can discuss privately issues and subjects which are NOT one of the eight legally allowable reasons to conduct an executive session??!!??

There is virtually nothing for which a public body can’t claim to justify the need for “legal advice”. Under the guise of “legal advice” the public body can go behind closed doors to discuss things – such as the county mask mandate or election procedures – very relevant to their constituents, issues which can and should be discussed publicly – even if there is legal advice involved.

Nor does legal advice have to be given to the public body privately unless, of course, it pertains to a lawsuit that would be jeopardized or a contract under negotiation which may be  compromised by disclosure of the legal advice prior to a public vote to adopt. The public body cannot disclose the executive session discussion. If the topic is not on the agenda for discussion and/or vote – which it appears these were not – the public will not know what was discussed or the direction their elected officials intend to take on the matter. Will they come back at a future meeting for discussion? Time will tell, it always does.

If my assessment (developed over years of discussions with attorneys as a member of multiple public bodies) is incorrect and the legal advice must pertain to one of the other eight areas then the legality of this Board of Supervisors meeting (and, from a review of their agendas, many others) comes under question. And while that may have been the intent of the legal advice provision, that it pertain to one of the other eight, it is clearly not the application of the law by most public bodies.

This “legal advice” provision is a HUGE loophole in the executive session statute that legislators must address and clarify exactly how far a public body can go in its ability to hold secret discussions. But regardless, Maricopa County Board of Supervisors – you need to unmask your meetings as well as our residents.

About Diane Douglas, Arizona Superintendent of Public Instruction 2015-2018 25 Articles
Diane Douglas is an American politician and educator expert, who served as Arizona Superintendent of Public Instruction from 2015-2019. She was elected on November 4, 2014. Douglas succeeded then-incumbent John Huppenthal, whom she defeated for the party's nomination in the Republican primary on August 26, 2014.