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Arizona’s open meeting laws require that city councils, school boards and other governmental bodies authorize litigation in public votes, an appellate court ruled Tuesday.
The Arizona Court of Appeals invalidated the City of Flagstaff’s lawsuit against Desert Mountain Energy after concluding that the city violated state open-meeting laws by authorizing the litigation behind closed doors.
The three-judge panel unanimously ruled that public bodies in Arizona cannot vote to initiate lawsuits during executive sessions, which are closed to the public. The decision has significant implications for how government entities throughout the state must handle decisions about litigation.
“May public bodies vote behind closed doors to authorize litigation? The answer is no,” Presiding Judge Michael Catlett wrote in the 13-page opinion.
The case stemmed from a December 2020 Flagstaff City Council meeting where councilmembers went into executive session “for legal advice regarding water litigation” and voted to sue Desert Mountain Energy to prevent it from mining helium near the city’s water source.
After being sued, Desert Mountain countered that the city had violated Arizona’s open meeting law, which requires government transparency in decision-making.
The court agreed, finding the city’s claims “null and void” because it had authorized the lawsuit during an executive session and failed to properly ratify that decision within the required timeframe.
“Authorizing litigation commits public funds to the litigation venture. Once funds are committed, the decision is binding; as such, a vote committing funds to litigation must be public,” Catlett wrote.
Flagstaff had claimed that the litigation didn’t actually commit any city resources, as the city council had approved a budget months earlier that included the funds for litigation. The court disagreed.
“If we were to adopt the City’s position, public bodies could avoid public votes on legal actions simply by budgeting funds for those actions in advance,” the judges ruled.
The ruling makes clear distinctions between what public bodies can and cannot do in executive sessions. While they may discuss strategy with attorneys and receive legal advice behind closed doors, they cannot take formal votes on whether to initiate lawsuits.
It largely builds off of a 2000 case in which the courts ruled that Tempe Elementary School District Governing Board illegally voted in executive session to appeal litigation involving a teacher it had fired. The Court of Appeals ruled in that case that the board clearly violated the open meeting laws by taking a vote in executive session, and rejected Flagstaff’s contention that subsequent changes to other parts of the open meeting law made that case irrelevant.
The court also dismissed the city’s argument that it had properly ratified its decision during a public meeting in January 2023, finding the vote came too late. State law requires ratification within 30 days of when a violation was discovered or should have been discovered.
“Individual members of a public body must educate themselves about, and then follow, the open-meeting law,” the court stated. The city had claimed it was merely following the advice of the former city attorney, but the court rejected that defense, adding that officials “cannot delay ratification based on an attorney’s incorrect advice.”
For government bodies across Arizona, the implications are clear: While sensitive legal matters can be discussed privately with attorneys, the final decision to commit public resources to litigation must be made in full view of the public.
The court has instructed the superior court to enter summary judgment for Desert Mountain Energy, effectively ending the city’s lawsuit over helium mining near its water source.
Officials with the City of Flagstaff did not immediately respond to a request for comment.
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