Arizona Court of Appeals, Division One holds that a public body must hold an open meeting when voting to authorize litigation.

During an executive session to seek legal advice, the City of Flagstaff voted to authorize litigation against the defendant. The defendant moved for summary judgment, arguing that the City’s claims were null and void because the City had violated Arizona’s Open Meeting Law and did not timely ratify its vote. The superior court denied summary judgment, concluding there were material fact issues. Because the benefit of the Open Meeting Law is to avoid litigation, which cannot be realized by awaiting an appeal, the court of appeals accepted special action jurisdiction; it also granted relief. 

Under A.R.S. § 38-431.01(A), all legal action of public bodies shall occur during a public meeting. A public body may go into executive session to discuss, consult with, or instruct its attorneys regarding its position in pending or contemplated litigation. A.R.S. 38-431.03(A). Properly read, this means a public body can go into executive session to talk with or consult its attorneys about future litigation without authorizing it. Similarly, a public body can use an executive session to instruct its attorneys on litigation positions. But when the public body makes a final and collective decision to authorize litigation, that is a legal action requiring a public vote. Because the City did not hold an open meeting to authorize litigation and its ratification of the legal action more than two years later was untimely, the City’s claims were null and void.

Judge Catlett authored opinion of the Court, in which Judges Perkins and Vice Chief Judge Howe joined.

Posted by: Brandon T. Delgado