The Peoria Unified School District recently released a memo to the community explaining Executive Sessions (see below). Apparently, it is in response to public comments at recent board meetings pertaining to the administration’s practice of allowing boys to use the girls’ restrooms and the alleged intent to conduct a discussion of Title IX behind closed doors with attorneys.
The February 9th memo reads in part: “At this time, the Peoria Unified Governing Board does not have any future agendas finalized (emphasis mine) for Executive Sessions.” This is because the agenda for the February 23rd meeting will not be “finalized” until the week prior (as of mid-day Friday no agenda has been posted for the Feb. 23rd meeting). In my opinion this is disingenuous wordsmithing in an attempt to mislead the community.
The memo goes on cite ARS 38-431.03 Executive Sessions.
Of all the myriad of topics public bodies, elected or appointed, discuss executive session statute only defines eight specific areas or topics that can legally be discussed behind closed doors rather than in open public meetings. These are issues where a public discussion may compromise negotiations, settlements, property purchases/sales, litigation, employee confidentiality, union contracts or school safety protocols.
There is one additional clause which is ARS 38-431.03(A) (3) Discussion or consultation for legal advice with the attorney or attorneys of the public body. Because of the loophole created by this clause there are virtually no issues that CAN’T be taken behind closed doors, outside of public scrutiny, as long as an “attorney or attorneys” participate for advice. Is there any subject on which an attorney is unable to give advice? Under the statute and without this loophole a discussion of the language of Title IX in executive session would be unlawful unless litigation or a settlement is involved.
And while true that “no official action can be taken” in executive session neither, by law, can the discussions in executive session ever be revealed publicly. Therefore the community has no understanding of the rationale behind the action ultimately taken by the board. Hence why there are and should be only very limited circumstances allowing for the public’s business to be discussed behind closed doors.
Just because an attorney is involved does not mean the discussion must be confidential. There is no reason why an explanation and the possible implications of Title IX can’t be discussed in public; not only for the understanding of the board members but also for the community whose children may be impacted by this law or any resulting policies from the local or federal level. Additionally many district have an attorney on staff attending the meetings so that discussions and questions can be handled without going into executive session.
Publicly explaining a law and discussing potential ramifications is not the same as discussing legal strategies in defense of an actual lawsuit.
Moreover, with the proper notice on the agenda a discussion can begin in public and convene into executive session should confidential legal advice become unavoidable.
It seems to me that any discussion of Title IX can and should best be started in public with information that should readily be available from the district’s Title IX Coordinator.
In my opinion no section of ARS 38-431.03 is more abused by public bodies than the legal advice clause (A) (3). AZ Representative Beverly Pingerelli (R LD28) tried twice, unsuccessfully, to narrow the scope of this currently unlimited, egregious breach of the intent of Open Meeting Law.
ARS 38-431.03(A)(3) is nothing more than the “get out of jail free” clause allowing public bodies to take behind closed doors uncomfortable or controversial issues and topics which are otherwise not allowed, by law, to be discussed in secret. Unless, of course, it is under the guise of legal advice.
PUSD What is Exec Session MemoDiane Douglas was AZ Superintendent of Public Instruction 2015-2019. She served on PUSD Governing Board 2005-2012; President 2008, 2009; the State Board of Education and the State Board for Charter Schools 2015-2019.