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Court: state land negotiations private, site selection public

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Court: state land negotiations private, site selection public

  • An Arizona appeals court ruled that negotiations for the purchase of land by a public body may be held in private, but discussions of which land is to be purchased must be held in public.

Sep. 26, 2003 — An Arizona appeals court in Tucson ruled Tuesday that while the state’s Open Meetings Law allows a public body to negotiate for the purchase of real estate in closed executive session, it must make the decision on what property to purchase in a public meeting.

On May 15, 2002, the Tanque Verde School Board met in a closed executive session to select the site of a new high school. An earlier attempt to select the site had failed because once the board’s interest had become public the price of the property increased. When the board filed in October to obtain the property through condemnation, the Tanque Verde Coalition, a group of homeowners opposed to the high school, sued to invalidate the actions taken at the closed meeting.

Pima County Judge Deborah Bernini ruled for the coalition, and the board appealed.

The coalition asserted that under the open meetings law all legal actions of a public body must occur in a public meeting. The board cited an exception allowing a public body to meet in a closed executive session to “consider its position and instruct its representatives regarding negotiations” in real estate transactions.

The appeals court, in a decision by Chief Judge Phillip G. Espinosa, repeatedly acknowledged the competing public interests of accountability through open government and the duty of public bodies to negotiate to minimize public spending.

“We believe the correct interpretation of the statutory exception lies somewhere in the proverbial middle,” Espinosa wrote. Saying that exceptions to the open meetings law are to be narrowly construed, the court held that while the exception allowed the board to meet in closed session to prepare for negotiations, it did not allow it to meet in closed session to select which property to negotiate for.

A board spokesman said that the ruling will have an adverse affect on public bodies’ bargaining power by alerting sellers to the bodies’ interests.

“We’ll be making a beeline to the legislature to change the open meeting law because that is not serving the public interest,” Chris Thomas, general counsel for the Arizona School Board Association, told The Associated Press. “It’s not a penchant for secrecy. It’s a penchant for protecting the public’s dollars.”

Peter Kozinets, a media attorney in Phoenix, said that the court struck the proper balance.

“The court rightly held that the exemption at issue should be construed narrowly. I think it will make it tougher for public bodies to use exemptions in the Open Meetings Law to conceal discussions that were never meant to be kept from the public.”

The Court of Appeals also ruled that although the selection of the site at a closed meeting was invalid, the School Board properly ratified the decision at a subsequent public meeting on May 29.

(Tanque Verde Unified School Dist. v. Bernini) GP

© 2003 The Reporters Committee for Freedom of the Press

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