No violation of open meeting law, IDA attorney contends

Board sets Tuesday meeting for ratification

The attorney for the Yuma Industrial Development Authority does not believe the group violated the open meeting law, a concern brought up by the City Council at a special meeting on July 12.

Wayne Benesch, legal counsel for IDA, also said that the city mishandled the situation. He made the statement in a regular meeting held by the IDA on July 18.

Nevertheless, the IDA will have a special meeting on Tuesday to ratify the emails in question “which may have constituted a meeting,” as stated in the agenda, as well as discuss a proposed letter from the authority to Gov. Doug Ducey regarding the statewide IDA.

“Everyone agreed that, in an abundance of caution, a ratification would take place at a special meeting next Tuesday. That’s the extent of it,” Benesch told the Yuma Sun.

The IDA will meet at 1:30 p.m. at City Hall Conference Room No. 136, 1 City Plaza. The process of ratification makes an agreement or action official.

The council gathered in a special meeting July 12 to consider the possible violation, which centered on a chain email asking the IDA Board of Directors to review a draft letter dated July 3 to the governor and provide comments and proposed revisions.

Council members expressed concerns that the initial email sent by Benesch to the IDA directors asking for action technically constituted a meeting of the board. The council then directed City Attorney Richard Files to send a letter to the IDA asking that its board members correct the possible violation.

According to the July 18 meeting minutes, the IDA discussed ratification of the emails sent July 5-7 between Benesch and board members “to nullify any deliberations, consultations, and possible decisions by the directors.”

At the IDA meeting, as stated in the minutes, President Dan Gray called on Files to explain the city’s concerns. Files said he became aware of an email circulated by Benesch with an attached draft letter to the governor seeking comment or revisions from board members. A couple of the board members responded by hitting “reply all” with their comments. In his view, Files said, this created a meeting since a quorum of the board had responded to the email.

The city attorney further explained that emails are an easy way to fall into open meeting law violations. He reported that the law states that any actions taken under an invalid meeting were null and void or had to be ratified within 30 days of the date that the action took place through a specific ratification procedure.

Gray asked what would happen if the board did not do anything. Files responded that it could be viewed as leaving the matter in limbo and subject to a possible complaint to the Attorney General’s office.

Gray then asked why the council thought it necessary to call a special meeting to discuss the “possible” violation. Files was unable to answer the question, according to the minutes.

During the discussion, Mayor Douglas Nicholls arrived at the meeting and responded to Gray’s question by saying that the city takes the issue of transparency seriously and he had difficulty with the email chain and attached draft letter.

The minutes note that board members Mark Pancrazi and Sandi Griffin further questioned the mayor and the city attorney.

Gray then called on Benesch to express his view of the situation. Benesch first apologized to the board “for their having to go through all of the publicity about the ‘possible’ OML violation.” He stated the cornerstone of that law is transparency and read from the statute regarding the legislative intent of the state. He indicated that for 34 years since the formation of the IDA, “it had never had an issue with an OML violation and that he believed that the organization always conducted its business with complete transparency and never attempted to operate in secrecy.”

In Benesch’s view, no violation of that concept had occurred. He did not agree with Files’ assessment and expressed the position that “wordsmithing a letter which had been directed to be sent in an open meeting was not operating in violation of the OML.”

The IDA first discussed a letter to the governor at a May 16 meeting, at which time the board directors asked Benesch to draft the letter regarding the statewide IDA for the board to consider at a following meeting.

Benesch also noted that his email did not request that the board “take action.” He only asked that board members “respond to him directly about the language in the letter” and that he did not construe that as stimulating board discussion or action.

Benesch expressed his opinion that this had been poorly handled by the city, that it could have been handled with a telephone call between the city attorney and himself “without any need of a special meeting of the council and all of the attendant drama in the media.”

In his opinion, the minutes state, “it had been all blown out of proportion with unnecessary additional effort on the part of the IDA Board.” Benesch said that Files had told him that “the IDA needed to ‘come clean,’ admit that it had messed up and ‘fix it.’”

In Benesch’s opinion, the minutes continued, “there was nothing to come clean about since there was no violation. The Authority has been absolutely open and transparent throughout.”

Nonetheless, because of the “tremendous amount of publicity brought about by the actions of the city,” Benesch said he felt that it was not prudent for the IDA to risk a complaint which would involve a large amount of time, effort and money to address.

As such, he agreed that the IDA should consider a ratification process, even though in his opinion, there had been no action taken that needed to be ratified. The board unanimously approved holding a special meeting for the ratification process.

Asked for his “side” by the Yuma Sun, Benesch declined further discussion, saying “my position is stated in the minutes.” The Yuma Sun also reached out for comment to the board members who were part of the email chain but did not get a response by press time.

Mayor Nicholls told the Yuma Sun Sunday that although there appeared to be a difference of opinion between two lawyers, “it was good that they tried to rectify it and make sure everything meets transparency” and that he was “sure there will be no issues with the OML by the time they’re done.”

Nicholls also reiterated that he and the council are “supportive of the board members and thankful for their time volunteering on a very difficult board, a very important board.”