BY LINDA BENTLEY | SEPTEMBER 8, 2010
Council addresses public records and fixes signature calculation blunder
‘Common sense will probably rule the day’
CAREFREE – The July financial report indicated sales tax revenue in Carefree was down almost 18 percent over July of last year, making it the worst July for tax revenue in six years.
Town Accountant Bill Keen said there was no building going on to offset the loss of tax revenue with permit fees.
After Council voted unanimously to waive its attorney client privilege and hold their discussion in public rather than in executive session, attorneys Bill Sims and Travys Harvey of Moyes Sellers & Sims presented their findings and recommendations to the town regarding public records.
Town Attorney Tom Chenal recused himself from a situation involving a public records request made by Vice Mayor Glenn Miller to Councilman Bob Coady for copies of e-mails from constituents responding to Coady’s request for input regarding traffic through his “Carefree Matters” e-mail list.
While Coady provided the information Miller requested, he kept the senders’ names and e-mail addresses confidential. However, Miller wanted to know who the people were to determine whether or not they lived in Carefree and if the responses were from the same person or different people.
The town consulted with Sims to address the issue. Sims said instead of the parties “lawyering up” both Coady and Miller agreed to approach it as mediation.
Sims said concern over public information and rights to privacy with respect to e-mails is “cutting edge stuff.”
To address Miller’s questions, Harvey analyzed the e-mails from Coady’s survey respondents and determined, “Based upon meeting minutes provided to us by the town, the information presented by Councilman Coady in the meeting(s) of the town council appears consistent with a random sampling of the communications received by Councilman Coady.
Upon receiving a report of Harvey’s findings, Miller rescinded his records request.
However, Sims explained it doesn’t really matter if an e-mail is generated from town hall or from a councilman’s home, if it has to do with official business the e-mail would be a public record.
Coady said a person could tell him the same thing in a phone conversation and that would not become a public record.
Sims explained public record laws only address written records.
Chenal stated when a person mails a letter to town hall, the entire letter, including the sender’s name and address, becomes a public record and if a person e-mailed the same information instead of mailing it, it too would be a public record.
Sims called the separation of public interest and right to privacy a “mind-numbing experience,” as he felt council members need to be able to communicate with their constituents without making every record public.
He said courts will look at it on a case by case basis and weigh whether privacy concerns outweigh the public’s need for the information.
“When a constituent sends an e-mail to town hall, they should assume it’s public,” said Sims, adding, “If they send it to your private e-mail address about official council business, it’s still public.”
Chenal, who said there were not a lot of policies out there, stated, “There’s no question this issue is quicksand” and agreed Sims’ recommendations would put some bright lines around the issue to protect council.
Sims said, “This is cutting edge policy I’m recommending,” cautioning it wouldn’t answer all their questions, but would “certainly address what brought rise to this but not overly broad.”
He said the policy was designed to “construe broadly and restrict narrowly.”
Harvey told council, “Common sense will probably rule the day.”
Council voted 5-1-1 to pass the policy presented by Sims with Coady dissenting and Councilman Doug Stavoe abstaining, not because he didn’t agree with the policy, only because he said he did not receive a copy of the policy with his packet to review prior to the meeting.
Mayor David Schwan announced the Nov. 2 council meeting would be moved to Nov. 3 due to the Nov. 2 election.
Coady announced there would be a drug collection and document shredding event from 10 a.m. to 2 p.m. on Saturday, Sept. 25. Maricopa County Sheriff Arpaio, who attended the first such event held in Carefree, has agreed to attend this event.
Rural/Metro Fire Chief John Kraetz presented an ordinance that would ban the sale and use of fireworks in the town.
Kraetz stated the governor signed a new law that permits the sale and use of certain fireworks, such as sparklers, previously banned in the state. However, he said the new law also has a provision that allows cities and towns to pass ordinances prohibiting such.
Coady asked when Kraetz became the fire chief of Carefree.
Kraetz said he was the town’s de facto fire chief through its contract with Rural/Metro and has signed documents as the town’s fire chief to procure grants for the town.
Coady said it was nothing personal but he wasn’t aware of anything in the town’s documents stating a fire chief from Rural/Metro could be the town’s fire chief.
Chenal said the town could pass the ordinance and he could research the contract to see if there was any such language and if not, the town could correct that at a later date without affecting the ordinance.
The ordinance passed by a vote of 6-1 with Councilman Bob Gemmill dissenting.
Kraetz said Carefree was the first town to adopt the ordinance and would probably see every city and town in the state pass the same ordinance.
Chenal presented council with a recommendation for an ordinance designed to correct a blunder Town Clerk Betsy Wise made, whereas she allowed one citizen’s initiative to qualify for the ballot based on 10 percent of the registered voters instead of 15 percent, as required by law.
The issue came to light when Stavoe queried Wise about the number of signatures required to qualify an initiative for the ballot and was told a much higher number, despite the basis (the number of qualified voters during the last election in which a mayor or councilman was elected) for calculating the signatures being the same.
Chenal said if the town changed the basis to 15 percent of the number of votes cast instead of qualified electors, it would actually be a lower number than 10 percent of the qualified electors, as the chairman of the other initiative was told.
While the Arizona Constitution determines the percentages for referendums (10 percent) and initiatives (15 percent), Chenal said it would lower the requirements for citizens to get initiatives on the ballot and would be fair to Stavoe.
Stavoe said previously there was discussion to have council vote to place both initiatives on the ballot as a solution. However, he felt this solution was better in the long run for everyone.
Chenal said Councilman Peter Koteas introduced an even better recommendation than his own by incorporating the percentages for signature requirements for referendums and initiatives into the town’s ordinances, so all the information for referendums and initiatives would be in one location.
Council agreed and voted unanimously in favor of the ordinance introduced by Koteas and with an emergency clause.
Chenal said the ordinance was passed as an emergency measure so it would go into effect immediately instead of in 30 days and that way Stavoe could qualify his initiative using the lower signature requirement.
