BY LINDA BENTLEY | OCTOBER 23, 2013
Abujbarah’s mandamus case against the town moves forward
After about 45 minutes of discussion, Gerlach stated, repeatedly, he wants to know if the four council members met before June 10
PHOENIX – On Friday, Oct. 18, Maricopa County Superior Court Judge Douglas Gerlach held a hearing in the matter filed by former Cave Creek Town Manager Usama Abujbarah (r) against the town of Cave Creek and Cave Creek Town Council.
The judge limited the hearing to two issues: Abujbarah’s request for a preliminary injunction, and the town’s motion to dismiss.
At the onset, Gerlach made it clear he had read all the briefs filed and told both attorneys he was leaning toward denying both requests.
Attorney Dan Bonnett of Martin & Bonnett, PLLC, argued about damages to his client Abujbarah.
Gerlach responded by saying, depending on the outcome of the trial, if in his favor, Abujbarah would be compensated for all past and future earnings and council would have to go through the process again and again until they get it right.
Bonnett agreed with the judge.
On the motion to dismiss, Attorney Michael Rubin from Dickinson Wright/Mariscal Weeks stated the claim did not provide any evidence that Vice Mayor Adam Trenk, councilmen Mike Durkin, Reg Monachino and Charles Spitzer, met before terminating Abujbarah on June 10.
Rubin also argued the agenda item was properly noticed and the other parts of the motion were merely a request for another special council meeting.
After about 45 minutes of discussion, Gerlach stated, repeatedly, he wants to know if the four council members met before June 10.
Other issues discussed included whether the Arizona Attorney General’s opinion about multi-part motions applies in this case, if the town council can ratify the June 10 motion 30 days from the court’s findings rather than 30 days after the council meeting during which a violation of the open meeting law occurred.
The judge appeared interested in Rubin's interpretation that the 30-day period would begin after the court’s findings, not after the council meeting.
A.R.S. § 38-431.05 Meeting held in violation of article; business transacted null and void; ratification, states:
A. All legal action transacted by any public body during a meeting held in violation of any provision of this article is null and void except as provided in subsection B.
B. A public body may ratify legal action taken in violation of this article in accordance with the following requirements:
1. Ratification shall take place at a public meeting within thirty days after discovery of the violation or after such discovery should have been made by the exercise of reasonable diligence.
2. The notice for the meeting shall include a description of the action to be ratified, a clear statement that the public body proposes to ratify a prior action and information on how the public may obtain a detailed written description of the action to be ratified.
3. The public body shall make available to the public a detailed written description of the action to be ratified and all deliberations, consultations and decisions by members of the public body that preceded and related to such action. The written description shall also be included as part of the minutes of the meeting at which ratification is taken.
4. The public body shall make available to the public the notice and detailed written description required by this section at least seventy-two hours in advance of the public meeting at which the ratification is taken.
The question seems to evolve around when council, if the court finds it was in violation, should have known it was in violation and if the window of opportunity to ratify has come and gone.
In any event, Gerlach denied both parties’ motions, discovery started on Monday and the case is moving forward.
