Email might be open meeting violation

Council asks for corrective action regarding IDA

The Yuma City Council has directed City Attorney Richard Files to craft a letter to the city’s Industrial Development Authority asking that its board members correct a possible violation of the open meeting law.

The council gathered in a special meeting July 12 to consider action regarding the possible violation. At the source of the possible violation is a chain email asking the IDA board of directors to review a draft letter dated July 3 to Gov. Doug Ducey and provide comments and proposed revisions.

The council believes that the email with the attached draft letter sent by IDA attorney Wayne Benesch to the IDA directors asking for action technically constitutes a meeting of the board.

The board has 30 days from the time of the alleged violation, which in this case began July 3, to take corrective action.

Benesch told the Yuma Sun on Monday that the IDA received the letter from Files “alerting us to a potential violation of the OML. It’s on our agenda for our meeting tomorrow at the IDA.” He declined further comment, noting, “It’s not appropriate for me to comment on the situation.”

After roll call at the special meeting last week, the

city council, with Gary Wright and Jacob Miller absent, immediately went into closed-door executive session to receive legal advice regarding the IDA, a city agency that promotes industry and develops trade in the Yuma area with an emphasis on projects that enhance the downtown area, according to the city’s website.

After 49 minutes, the council reconvened in public. Mayor Doug Nicholls then stated that the council had “become aware of a situation of possible open meeting law violation that we’d like to work with the IDA to help correct.”

Nicholls expressed “utmost respect” for members of the board “for their dedication, time and passion, and this is not (meant) to be a reflection of their service or any of their action as far as the council being in discussions on that. It’s more of a concern in making sure things are remaining in correct order.”

He explained that the possible violation stemmed from a draft letter that had been distributed among the board members of the Yuma IDA.

“There was a letter that was distributed for drafting essentially among the board and that we believe is to be the source of potential — strong potential — of open meeting law violation,” he said.

Nicholls then made a motion directing the city attorney “to craft a letter to the chairman of the board, the board members and their legal counsel to detail what our concern is and how we can assist in resolving that concern. And to be clear that the intention is not to reflect negatively on our appointed board members that serve and have served for quite a few many years on the IDA.”

Councilman Edward Thomas seconded the motion, and Nicholls asked for discussion. Thomas asked whether the motion should include a request that the IDA report its corrective action back to the council.

Nicholls said he believed it was not necessary because it would be part of the open record.

Files agreed, noting, “IDA is a political subdivision and subject to open records as well as open meeting laws.”

“So there’s no need to add that to the motion because it’s already in place,” Nicholls said.

He then called for a vote: The council OK’d the motion unanimously with a 5-0 vote.

The meeting was adjourned soon after that.

Nicholls later told the Yuma Sun that the council called the special meeting as soon as it became aware of the possible violation because there is an “opportunity of short duration” to correct it.

He said the possible violation does not need to be reported to the Arizona Attorney General’s office if it’s corrected within 30 days. The time period reportedly kicked off with the draft letter dated July 3.

To correct the possible violation, the IDA board is expected to meet and discuss the draft letter in a posted public meeting.

Nicholls reiterated that the council’s request for corrective action was not criticism of the board members. Rather, he said, the council wanted to protect government transparency, including “all city boards and committees.”

“As we get the business of the city done … it’s an opportunity for all to have transparency. It’s important not just for the city but all boards directly under the city,” he said.

The two-page draft letter to Ducey addresses the Yuma IDA’s concerns about the Arizona IDA, which the governor created after revamping the Arizona Finance Authority.

“While we appreciate the potential advantages of a statewide IDA, we have concerns with a program that has applicants for projects in rural communities across the state do their financing with an entity in Phoenix which has no means or motivation, for assessing the needs of the community, or the possible negatives of such a project.

“We are particularly sensitive to the concerns because Yuma has recently been the victim of a ‘project gone wrong’ which was financed by the City of Phoenix IDA. Within one year of opening, the proposed veterans assisted living facility located on one of our main thoroughfares was in receivership, and it is now undergoing a ‘fire sale’ in order to get it functioning.

“It is not our purpose to criticize or object to the Arizona IDA. We are confident there are many valid reasons for its creation, and that it is staffed with competent public servants. Our purpose is to remind those in charge that there are existing IDAs in most Arizona counties and many rural cities, in our state where Boards are made up of competent, experienced and caring individuals who freely give of their energy and expertise in order to enhance the economic vitality of their area. We find it difficult to believe that a group of talented civic-minded citizens in Phoenix, no matter how well intentioned, can bring to the table the same level of knowledge, and experience as these local boards. Thus, while the Arizona IDA should work diligently to provide statewide or multi-county project financings, or handle these projects of which local IDAs are not capable, in our opinion, it should not be actively soliciting and recruiting away projects from rural areas which are better served by local IDAs.”

The unsigned letter is ready for the signature of Yuma IDA President Dan Gray. “Once we hear from each of the Directors, we will finalize for Mr. Gray’s signature and send it on,” Benesch wrote in the email.

Mark Pancrazi replied; “I’m good with the letter.” David Sellers wrote: “I’m good with it too. Dave.” Sandi Griffin responded: “Tactfully put but point made. Vote yes. SG.”

The Yuma Sun reached out to those included in the email chain asking for comment. Other than Benesch, only Sellers responded, saying, “I do not have any comment about our letter,” and referred the newspaper to Benesch.