Open Meeting Flaw

Old Amphi Adversaries Unite For A Curious Interpretation Of The Law.

AS AN AMPHITHEATER school board member, Ken Smith spent tens of thousands of dollars earlier this year to prove he legally held his seat and to show that the district's chief legal counsel, Todd Jaeger, was way off base in challenging Smith's right to serve.

But during the recent and generally quiet campaign for three seats on Amphi's board--a race in which two of the victors from May's recall as well as pioneer reformer Nancy Young Wright held their positions--Smith, the board president, sought the help of his former nemesis to keep incumbents bottled up and unable to debate challengers Kenny Hegland and Jeff Grant.

Nearly a year ago, Jaeger raced to bounce Smith from the Amphi board, claiming Smith was ineligible because his wife was an Amphi volunteer covered by the district's early retirement program. State law forbids school board members from having spouses on the district payroll.

Jaeger and Deputy Pima County Attorney Paula Wilk put the forthright and gentlemanly Smith through the wringer in court maneuvering that spanned seven months. In the end, Smith's lawyers, Anthony Ching and Bill Risner, decimated Wilk's and Jaeger's case. Judge Kenneth Lee of Superior Court ruled on May 16, the day of the Amphi recall, that Smith indeed legally held his seat.

Smith was outraged that his own school board lawyer, Jaeger, would sprint to county officials when Smith was out of town for his mother's 89th birthday without first explaining that he was in some type of jeopardy. So Smith used Ching and Risner to humiliate Jaeger on the stand.

His lawyers' bill hit $23,500. Judge Lee ordered the county, which Smith's attorneys and supporters insisted should never have accepted the case, to pay $10,000--the maximum under state law--of Smith's bill. A legal defense fund came up with another $7,500, leaving Smith with $6,000 to pay in his fight to keep his unpaid school board job.

So it seemed odd that Smith would seek and rely on an opinion from Jaeger last month clarifying the restrictions his Amphi board colleagues faced under some revisions to the state Open Meeting Law.

Using Jaeger's two-page memo, Smith told Wright and board newcomers Kent Barrabee and Mike Prount that they had to steer clear of political forums, debates and bashes during the campaign season. The Open Meeting Law generally prevents a quorum--in the Amphi case, three members--from getting together. But that restriction, in the case of non-meeting gatherings such as political forums or district dinners, can be accommodated by posting a notice advising the public that three or more members may be attending a function in which no decisions will be made and that no discussions leading to official board decisions will occur.

Such notices are frequently posted by the clerk of the Pima County Board of Supervisors, Lori Godoshian, and City Clerk Kathy Detrick.

Smith, Wright and fellow board member Mary Schuh all say that the political climate in the 16,000-student district, which stretches from Campbell Avenue and Grant Road to the Pinal County line, as well as the previous board majority's flouting of the Open Meeting Law led Smith to be extremely cautious. The board members ousted in May's recall election--Virginia Houston, Gary Woodard and Richard Scott--frequently met with no public notice; they had little trepidation in joining together at forums and parties.

The state Attorney General cited the district for some of those violations.

Since then, "We've been bending over backwards trying to be (clean)," says Schuh.

Smith's strict interpretation of the law "hurt the two non-incumbents," said Grant, an Oro Valley bureaucrat who trailed Barrabee by only 895 votes, 16,018 to 15,123. "We didn't have the name recognition and then had no way to explain and show our differences with the incumbents."

Grant gets little sympathy from Wright, who will begin her second term as this election's most powerful vote-getter. She led the ticket with more than 26 percent of the vote.

"If I had all the help Jeff Grant had, from Gov. Jane Dee Hull, the H's (Huffman, Hellon and Hershberger) in (Legislative District) 12, and others, I would do a reality check," Wright said. "Hegland and Grant had no risk. We, the incumbents, had all the risk.

Says Smith in his defense: "We are obligated to follow the legal opinion of our legal counsel and not the uninformed legal opinions of candidates."

That includes, Smith believes, risking being nailed if they'd shown up at a political forum put on by the Copper Creek Parent Teacher Organization that was oddly scheduled on the same night as an Amphi board meeting.

"These requirements for the Open Meeting Law place substantial limitations on our existing Governing Board members who might like to attend the Copper Creek forum," Jaeger wrote. "If three of our members attend, then the PTO forum itself becomes a public meeting of the Board."

Wright says Smith has "gone a little bit conservative about the amendments to the Open Meeting Law." Wright also noted the irony that Smith was snubbed at similar forums as a challenger in 1998.

Smith says his clarification effort began not with Jaeger but with John McDonald, a partner in DeConcini McDonald Yetwin & Lacy, a firm that routinely handles legal matters for several school districts. He made an inquiry to sort out the practical effects of the amendments to the Open Meeting Law.

He passed on McDonald's information to Jaeger and asked Jaeger if he agreed to put it in writing.

"When I read about the amendments, I was sufficiently concerned so I called McDonald and the only fallback position I had was to get it in writing. The only thing that has relevance is what's legal," Smith says. "I have made it clear that the old majority was not cautious enough."

As to the irony of relying on Jaeger, Smith, the former district pariah, says, "You wouldn't believe how nice they (Amphi administration) are to me now."

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