Lawmakers on the House Government Committee may have inadvertently violated the state’s open meetings law when they recessed while debating a bill that would subject public employee unions to the same law.
Meeting on Jan. 29, the committee had killed a measure by Republican Rep. Steve Montenegro of Avondale to subject public employee union negotiations to the state open meetings law. Two Republicans — Reps. Doug Coleman of Apache Junction and Sonny Borrelli of Lake Havasu City — joined with Democrats in voting against the measure.
The committee chair, Republican Rep. Michelle Ugenti of Scottsdale, also voted against the measure, HB2283, in order to bring it back to life later on reconsideration.
In the final moments of the meeting, Democratic Rep. Martin Quezada of Phoenix tried to “double-tap” the bill by bringing it back for immediate reconsideration. Quezada thought that by forcing a new vote, he could kill the bill once and for all before the bill’s backers, including the Goldwater Institute, could persuade the two Republicans to change their minds.
But Ugenti immediately called the committee into recess and the majority of the committee members left the hearing room for the back hallways. When they returned about 20 minutes later, the two Republicans switched their votes and the bill passed.
Though they didn’t consider it at the time, several lawmakers said later there was a quorum of committee members in the hallway. They said they understood why it at least could have looked like the open meetings law could have been violated.
The Arizona open meetings law applies to legislative committees. It applies if a quorum of any committee — in this case, five lawmakers from the nine-member panel — meet outside an announced committee meeting to discuss official public business.
Whether committee members actually violated the law may depend on what was discussed in the hallway and whether it is considered public business, according to open meetings law experts.
When asked if he thought committee members broke the open meetings law, Borrelli said, “No. Well, I’m sure there was enough people back there (to constitute a quorum), but no one was all talking together as a quorum.”
Borrelli said he ran to the bathroom as soon as the committee recessed, and when he returned, the committee members and others were talking in pairs or small groups strung along the narrow hallway. They were discussing what the procedural reaction would be to Quezada’s motion to immediately reconsider the bill, and not the actual measure itself, he said.
He said that no one was twisting his arm to change his vote.
“Nobody asked me to change my vote. They said, ‘Here are your options,’ and I’m like, ‘OK, thank you very much,’” Borrelli said.
Coleman said he didn’t take a head count of the members on the committee who were standing in the hallway, but many of them were coming and going, milling around and talking as he spoke with Ugenti about the vote.
He said he isn’t a lawyer and can’t be sure if the open meetings law was violated, but said that even if there was a quorum of the committee hanging out in the hallway they weren’t all talking as a group about the legislation.
“If you’re asking me if that was a violation of the open meeting law, which is ironic because that’s one of the things we were talking about, I would not interpret it that way because it was not one discussion, and it was not about business, it was about procedure, what was going on,” Coleman said.
Coleman said he operated for 19 years under the open meeting law as a city council member in Apache Junction, and never had a violation. But he said the fact that there are questions about the legality of their briefing during the recess illustrates some of the problems he had with the bill that led him to vote against it the first time.
“I understand the need for transparency, but I also understand that we have to be real about these things,” he said.
Quezada said he wasn’t counting heads in the hallway either, and it hadn’t occurred to him that it might have been an open meetings violation at the time.
But looking back, he believes it probably was a violation.
“It’s very clearly a gray area,” he said.
He briefly joined the others in the back hallway and lobbied Borrelli for his vote against the bill, and talked to Ugenti about revoking his motion.
He said in his years in government, he has never seen anything like what happened that day.
“Recess is to recess: we’re going to take a break and come back to discuss business later. This very clearly was not necessarily a recess, but like ‘Hey, let’s move this discussion elsewhere and figure out what to do,’” he said.
Ugenti said she called the committee into recess so she could talk to the Rules Committee attorney about Quezada’s surprise motion and that she talked to a handful of other lawmakers in the private hallway.
She said she never saw a quorum of the members in the hall.
“We didn’t talk as a group at all and the conversation was, for me as chair, was very important that I had an understanding of the procedural implications and my understanding of the motion before me,” she said. “It was very kind of dry and matter of fact.”
Republican Rep. John Kavanagh of Fountain Hills said he ran to get a cup of tea when the committee recessed, and when he returned, he saw committee members coming and going from the hallway but he never saw a full quorum of committee members actually talking together as a group.
He said he understands how it could look like the committee broke the open meetings law, but it didn’t happen that way.
“There was a quorum back there in the hallway, but there were small groups talking within each other, just like during the recess people talk with each other in the committee room, that doesn’t mean that a quorum is discussing,” he said. “If everyone gets together and talks you’ve got a problem, but people were scattered along the hallway.’
Two attorneys who are experts in open meetings laws said there’s no question that the open meetings laws apply to legislative committees, and that if a quorum of a committee gets together in a private area to discuss public business or what just happened in the open session, chances are there was an open meetings violation.
However, both cautioned that they didn’t know enough about what was said to determine whether the law was violated.
David Bodney, attorney for Steptoe and Johnson, said if the lawmakers were talking in small groups behind doors and not discussing official business, and explaining procedures instead, it is unclear if that would qualify as an open meetings violation.
“Obviously, it’s the kind of thing that public bodies want to be careful about in order not to give the appearance of a violation, but I think that the devil’s in the details, and I don’t know enough about the facts of the conversation to know whether there could have been a violation,” he said.
Perkins Coie attorney Dan Barr agreed. “I can’t conclude anything without knowing what they were doing [in the hallway], but it doesn’t look good. It doesn’t pass the smell test, let’s put it that way,” he said.