To:
Jennifer MacLennan,
Gust Rosenfeld PLC,
on behalf of Scottsdale Unified School District No. 48
and Paradise Valley Unified School District No. 69
Pursuant to A.R.S. § 15-253(B), this opinion affirms in part and revises in part the opinions that you prepared for the Scottsdale Unified School District No. 48 (“SUSD”) and Paradise Valley Unified School District No. 69 (“PVUSD”) (collectively, “the Districts”) regarding the application of Open Meeting Law to school district advisory committees and communications with governing board members. Those opinions are attached hereto as Appendix A.
Background
The Attorney General’s Office received complaints alleging that Scottsdale Unified School District No. 48’s use of certain advisory committees and 2x2x1 meetings[1] with governing board members violates the Open Meeting Law, A.R.S. §§ 38-431 et seq. Following an investigation, the Office concluded that some of the District’s uses of advisory committees had violated the Open Meeting Law while others had not. The Office also concluded that the District’s use of 2x2x1 meetings violated the Open Meeting Law. The Office also determined, however, that all violations were unintentional and declined to impose penalties beyond corrective action.
Shortly thereafter, counsel representing Scottsdale Unified School District No. 48 and Paradise Valley Unified School District No. 69 submitted legal opinions to this Office for review under A.R.S. § 15-253(B) regarding the parameters of the Open Meeting Law with respect to school district committees and 2x2x1 meetings. Those submissions conclude that “there must be evidence that a board was actively involved in the creation of a committee for the committee to be a board advisory committee under A.R.S. § 38-431(1),” and that, “without further evidence of intent to discuss among a quorum, providing the board with updated information in a 2x2x1 [meeting format] does not violate the OML.”
The Office agrees with the submitted opinions regarding the application of the Open Meeting Law to school district advisory committees, but adds a few points of emphasis and clarification here. Regarding a district’s use of 2x2x1 meetings, the Office revises the submitted opinions and wishes to make clear here that while the use of 2x2x1 meetings (or similar formats) is not a per se violation of the Open Meeting Law, whether a particular meeting format with smaller groups of members violates the Open Meeting Law depends on the particular facts.
Analysis
- Advisory Committees
The opinions you prepared for the Districts focus on advisory committees, and conclude that under A.R.S. § 38-431(1), “Board formation of the committee is a prerequisite . . . , whether that formation is by vote, policy or by acts or statements that lead to the conclusion of board intent.” Although we generally agree with the opinions you’ve prepared, we write further to clarify that the circumstances of the committee’s formation are not the sole dispositive factor in determining whether a committee must comply with the Open Meeting Law. Other factors that may affect the determination include the circumstances of the committee’s membership, purpose, and subsequent operation.
Your analysis focuses on the definition of “advisory committee” in A.R.S. § 38-431(1) to conclude that “there must be evidence that a board was actively involved in the creation of a committee for the committee to be a board advisory committee.” Although we agree that board involvement in the “creation” or “formation” of a committee is a critical component of an “advisory committee” under § 38-431(1), this language must be read in conjunction with the broader definition of “public body” in § 38-431(6). The Open Meeting Law does not permit a governing board to evade the public meeting requirements by “informally” forming or establishing, or by directing a superintendent to establish, a committee to perform work that would otherwise need to be conducted in public. For that reason, we caution against an overly narrow reading of the law focused exclusively on the circumstances of a committee’s creation.
For example, we agree that a committee established by a district superintendent rather than the governing board is not subject to the Open Meeting Law merely because the work of the committee may result in the superintendent bringing a recommendation to the governing board. A superintendent committee, for example, may voluntarily form recommendations to the board on matters of policy for which the superintendent sees a need. If the superintendent is not developing such a proposal in response to a directive (or other close involvement) of the board in the exercise of this governance function, the Open Meeting Law typically will not apply. Indeed, absent any board involvement at all, the superintendent and his or her committee are no different than any individual constituent, district employee, or group of constituents or employees, all of whom could undoubtedly recommend that the board consider a particular policy without being subject to the Open Meeting Law in their deliberations before approaching the board.
On the other hand, if a committee initially formed by a superintendent is subsequently tasked by the governing board with developing further policy recommendations for the board’s consideration, the committee’s subsequent work on that issue would need to be conducted in public meetings. Put simply, the degree and type of the board’s involvement matters, and it is not just the initial moment at which the committee is formed that is relevant to the analysis.
Similarly, as you note in the appended opinions, while the mere fact that two board members sit on a committee is not in and of itself dispositive when determining whether the committee is subject to the Open Meeting Law, the membership of a committee is a relevant factor. As you correctly observe, the presence of multiple board members heightens the risk that a committee will be engaged in the proposal, discussion, or deliberation of board matters, in which case the Open Meeting Law should apply. See A.R.S. § 38-431(3)-(4); id. § 38-431.01.
Accordingly, we approve of the submitted opinions but caution that any Open Meeting Law analysis requires a holistic view of all relevant factors, including but not limited to the circumstances of the committee’s formation, membership, purpose, and subsequent operation.
- 2x2x1 Meetings
The opinion you prepared for SUSD also addresses the use of “2x2x1 meetings.” This term refers to the District’s practice of holding three separate meetings with the five governing board members to allow the superintendent to present them with information in advance of a public meeting.
As you note, this Office previously concluded that SUSD’s use of such meetings violated the Open Meeting Law. The Office’s disposition notes that the 2x2x1 model utilized by SUSD risks improperly “splintering the quorum” by permitting “separate or serial discussions with a majority of the public body members.” See Ariz. Att’y Gen. Agency Handbook § 7.5.2. (“Public officials may not circumvent public discussion by splintering the quorum and having separate or serial discussions with a majority of the public body members.”). We explained,
Even if the Board members are not speaking directly to each other during these meetings, the members present have the benefit of hearing the other members' questions and the answers to those questions. The remaining Board members and the public do not have this benefit. The public is entitled to hear this deliberative process, including the questions that the Board members ask the presenter during the meetings. Further, because these meetings were not recorded or open to the public, there is no way for the public to be sure that the Board members present were not discussing the matters amongst themselves.
The opinion you have submitted questions the correctness of this disposition because it “does not account for the requirement that each potential violation be examined on a case-by-case basis.” We respectfully disagree with that characterization of the prior disposition and wish to make clear here that a case-by-case evaluation is required. In its prior disposition, the Office did not conclude that all 2x2x1 meetings (or similar meeting structures involving a subset of board members) are per se prohibited by the Open Meeting Law. Rather, the Office examined the particular circumstances of SUSD’s practice and concluded that this specific practice did not comply with the Open Meeting Law. We reaffirm that position here and find that whether a particular meeting format violates the Open Meeting Law will depend upon the particular circumstances.
We recognize that SUSD and other boards may sometimes benefit from having information presented to board members in a 2x2x1 (or similar) format. And we recognize that merely providing information to board members in that format will not always run afoul of the Open Meeting Law. After all, board members are not prohibited from gathering information independently outside of a public meeting, nor are they prohibited from discussing matters with another board member so long as the discussion does not directly or indirectly involve a quorum of board members. See Ariz. Att’y Gen. Agency Handbook §§ 7.5.1, 7.5.2, 7.5.3. The SUSD practice we evaluated, however, went beyond merely providing information to board members and, importantly, was discussed in a public meeting as a means to avoid having additional or more lengthy public meetings of the entire board. In the relevant SUSD 2x2x1 meetings, SUSD board members asked questions, received answers, and thus engaged in a dialogue with the presenter that aided their deliberative process. And this practice was repeated with every member of the board with the express intent of decreasing board deliberation at the public meeting. That practice (under those unique facts) violated the Open Meeting Law, which must be construed “in favor of open and public meetings.” A.R.S. § 38-431.09(A); see also Ariz. Att’y Gen. Op. I96-012 (finding that lengthy information-gathering meetings that explore the operation of the district’s programs cannot be held in executive session under the guise of a personnel evaluation).
Of course, school districts can take steps to ensure any 2x2x1 (or similar) meetings do not run afoul of the Open Meeting Law. For example, a school district might consider admonishing board members to simply receive the information presented and save their questions and any discussion for the public meeting. Board members should also be reminded at these meetings that they are not to discuss the information received with other board members who are not present until they can do so in a public meeting. In addition, there are fewer concerns about splintering the quorum or inadvertently preventing public observation of board deliberations if the information presented is not about a matter on which the board is planning to take legal action.
However, even with these (and perhaps other) precautions, the use of multiple meetings with a smaller number of board members should be undertaken with the utmost caution. “Public officials should refrain from any activities that may undermine public confidence in the public decision-making process established in the Open Meeting Law, including actions that may appear to remove discussions and decisions from public view.” Ariz. Att’y Gen. Agency Handbook § 7.5.2. (“Public officials may not circumvent public discussion by splintering the quorum and having separate or serial discussions with a majority of the public body members.”). And while “technically, a committee which meets solely to receive information, which does not discuss the information, nor makes recommendations with regard to it could avoid the public meeting requirements,” “[p]ractically speaking, such a passive committee is difficult to imagine.” Ariz. Op. Att’y Gen. I80-202. Therefore, while it may be possible for a superintendent or other person to present information to a group of board members that is less than a quorum without violating the Open Meeting Law, this practice should be used sparingly and with substantial precautionary measures.
Conclusion
We agree with the submitted opinions’ conclusions regarding school district advisory committees, subject to the points of clarification made above. We revise the submitted opinions on the subject of 2x2x1 meetings to clarify that although a meeting at which information is provided to less than a quorum of board members is not a per se violation of the Open Meeting Law, the practice should be used carefully to avoid Open Meeting Law violations and to preserve public confidence.
Kris Mayes
Attorney General
[1] “2x2x1” meetings refers to the District’s practice of holding three separate meetings with the five governing board members to present them with information in advance of a public meeting. Two of the meetings are held with two members, and the third meeting with a single member, hence “2x2x1.”