Sedona AZ (August 28, 2012) – The Arizona Attorney General’s office found the prior Sedona Fire District Governing Board to have violated Open Meeting Laws including an employee’s rights. The Sedona Fire District was instructed by the Arizona Attorney General’s Office to undertake the corrective actions as outlined in the following August 22. 2012 Board Minutes published below by the SedonaEye.com without additional comment:
DRAFT MINUTES FOR REGULAR SFD BOARD MEETING
Wednesday, August 22, 2012 / 3:00 PM
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Sedona Fire District, 2860 Southwest Drive, Sedona, Arizona 86336
Telephone (928) 282-6800 FAX (928) 282-6857
REGULAR BOARD MEETING
Station #1 – 2860 Southwest Drive – West Sedona – Multipurpose Room
Wednesday, August 22, 2012 / 3:00 PM
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I. CALL TO ORDER/ROLL CALL.
Board Present: Ty Montgomery – Chairman; Corrie Cooperman – Clerk;
Craig Dible; Nazih Hazime; Diane Schoen – Members
Staff Present: Fire Chief Kris Kazian; Assistant Chief Terry Keller; Fire Marshal Gary Johnson; Executive Assistant/Recorder to the Board Tricia Greer
Others Present: Bill Whittington, Attorney; Approximately 20 Members of the Public
Mr. Montgomery opened the meeting at 3:00 PM and asked Mr. Whittington to begin his training.
II. OPEN MEETING LAW TRAINING – PRESENTED BY ATTORNEY WILLIAM R. WHITTINGTON (In compliance with Arizona Attorney General’s Findings).
Mr. Whittington distributed handouts of information regarding the Open Meeting Law (OML) and gave a PowerPoint presentation to the entire Governing Board of OML training, as required by the Arizona Attorney General’s Office.
Mr. Whittington covered matters pertaining to the OML including the requirements relating to notice, minutes, agendas, public participation, executive session, publication, use of websites, and penalties for violations of the OML. He also provided samples of an agenda with errors for the purpose of testing the Board Members. Mr. Whittington then entertained questions from the Board; the training session lasted approximately one hour and fifteen minutes.
Mr. Montgomery entertained a motion to go into Executive Session pursuant to ARS §38-431.03.A.3 – Legal Advice; and pursuant to ARS §38-431.03.A.4 – Instruction to Attorney; Board Clerk Corrie Cooperman so moved; Board Member Nazih Hazime seconded, and the motion passed at 5 to 0.
III. EXECUTIVE SESSION.
A. Vote to go into Executive Session pursuant to ARS 38-431.03.A.3 – Legal Advice; and Pursuant to ARS 38-431.03.A.4 – Instruction to Attorney Re: Negotiations relating to the following items:
1. Arizona Attorney General’s Opinion as it relates to Open Meeting Law Violations of Former Fire Board; and Instructions to Attorney Relating to the Attorney General’s Investigation and Settlement of Open Meeting Law Violations of Former Fire Board.
2. Lowell Johnson Complaint.
IV. RECONVENE INTO PUBLIC SESSION.
A. Salute to the Flag of the United States of America and Moment of Silence to Honor all American Men and Women in Service to Our Country, Firefighters, and Police Officers.
Mr. Montgomery reconvened the Public Session at 5:00 PM and led the Pledge of Allegiance. He then requested the badge-pinning ceremony be moved up to accommodate Engineer Schimberg’s family.
Chief Kazian stated SFD is promoting Allen Schimberg from Firefighter/Paramedic to the position of Engineer; Allen is an 11 year employee of the district and very active in technical rescue training and
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participation; he holds an Associates degree in Paramedicine. Engineer Schimberg was pinned by his wife, Sara, in the presence of his young children, Lillia and Bella, as well as his mother and father.
B. Discussion/Possible Action: Agreement and Compliance with Arizona Attorney General’s Opinion and Findings on Open Meeting Violations of Former Board, as follows:
1. That the content of the Attorney General’s report dated June 20, 2012 be appropriately noticed on the agenda of the Governing Board meeting of the Sedona Fire District, and said report be read aloud, discussed and copies made available to members of the public.
a. Approval of Agreement with Arizona Attorney General dated June 20, 2012.
Mr. Montgomery said the Arizona Attorney General (AG) rendered an opinion regarding Open Meeting Law violations, and as remedy to those, requires the report dated 6/20/12 be read aloud into the record with copies made available for the public.
The report was then read aloud, as follows:
TOM HORNE ATTORNEY GENERAL
KEVIN R. SMITH ASSISTANT ATTORNEY GENERAL (602) 542-8195
OFFICE OF THE ARIZONA ATTORNEY GENERAL
CHILD AND FAMILY PROTECTION DIVISION
CIVIL AND CRIMINAL LITIGATION AND ADVICE SECTION
1275 West Washington Phoenix, Arizona 85007-2926 Phone 602-542-8195 Fax 602-542-9279 June 20, 2012 (Via Mail and E-mail: William.Whittington@azbar.org) William R. Whittington Boyle, Pecharich, Cline, Whittington & Stallings, P.LLC. 125 North Granite Street Prescott, Arizona 86301
RE: Sedona Fire District Board Open Meeting Law Complaint
Dear Mr. Whittington: As we discussed on the phone, the Attorney General’s Office has received several complaints over the course of this last year alleging that the Sedona Fire District Board (“Board”) violated Arizona’s Open Meeting Law (ARS. § 38-431 et seq.). Also as we discussed on the phone, it is my understanding that you will be addressing these issues as counsel for the Board from this point forward. Our Office has completed its investigation of these complaints and based upon the information obtained during the investigation, we have found the following violations:
Violations 1. Executive Session Held in Violation of Open Meeting Law I previously discussed this conclusion in my November 30, 2011, letter to then Board counsel Scott Wakefield of the law firm Ridenour, Hienton, &Lewis.
The Board held an executive session at its meeting on June 8, 2011. As reflected by the Board’s meeting minutes for that meeting, the Chairman, Mr. Blauert, moved to go into the executive session for the purported purpose of seeking legal advice. A.RS. § 38-431.03(A)(3) allows an executive session to be held for the purpose of discussion or consultation for legal advice with the attorney(s) of a public body. However, the information reviewed in our investigation lead us to conclude that the executive session was not held for such purposes and was held in violation of the Arizona Open Meeting Law.
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Mr. Blake Whiteman of the firm Ridenour, Hienton, & Lewis provided the Attorney General’s Office with a response to the allegations on behalf of the Board in a letter dated August 4, 2011.
In the letter Mr. Whiteman stated that the Board chose to go into executive session because the behavior of the audience had deteriorated to the point where it was impossible to conduct the meeting. He also stated that the executive session was called “to clear the meeting room”.
The executive session meeting minutes do not indicate that any attempts were made to contact legal counsel and no evidence or information has been provided to indicate that any attempts to contact legal counsel were made.
Mr. Whiteman’s letter also stated that no Board action was taken in the executive session.
However, the executive session minutes that were provided indicate that discussions were held among those present regarding Board business, specifically the recruitment of a new fire chief and of a temporary fire chief. Furthermore, the minutes of the executive session show that a motion regarding the recruitment of a permanent and of a temporary fire chief was made and voted upon in that executive session.
Based upon the above information, our Office has determined that the executive session of June 8, 2011, was held for an inappropriate purpose under the guise of an appropriate purpose. Furthermore, Board business was conducted and Board action was taken during the executive session, including the making of and passing of a motion in executive session, in violation of the Open Meeting Law. Based upon the above, it is our Office’s determination that the Board violated AR.S. § 38-431.03 of the Arizona Open Meeting Law at the June 8, 2011, meeting.
2. “Audit Committee” Meetings Held In Violation of Open Meeting Law At its meeting on December 15, 2010,
The Sedona Fire District Board voted to have Board member Charlie Christensen put together a committee (hereinafter referred to as the “Audit Committee”) to draft a Request For Proposals (“RFP”) and recommend an entity to conduct a “Performance, Cost and Management Audit” of the Sedona Fire Department.
The first meeting held by the Audit Committee was held on January 18, 2011. The Audit Committee was subject to the Open Meeting Law as it was a special or advisory committee appointed by a public body and therefore the Audit Committee was a public body itself under A.RS. § 38-431 (6). After reviewing the information obtained during our investigation, our Office has concluded that the Audit Committee held meetings in violation of the Open Meeting Laws.
Our conclusion is based upon several pieces of information.
One such piece of information, which we believe clearly demonstrates that meetings were held by the Audit Committee, is the statement attributed to Audit Committee member Trent Cosse on page 2 of the minutes of the Audit Committee’s first “formal” meeting on January 18, 2011. In those minutes, which were approved by the Audit Committee at its meeting of January 25, 2011, Mr. Cosse is attributed with stating:
“the committee has been very specific on its focus to make sure SFD is not having another financial audit, and it will be to look at costs and the way departments could be reorganized, money could be saved and reallocated…. the committee has done a great deal of talk prior to the formal meeting to focus on the qualifications of a firm experienced in this situation.”
These statements clearly indicate that the Audit Committee was conducting meetings as defined by the Open Meeting Law prior to its first “format” meeting of January 18, 2011. These meetings were not noticed or open to the public as required by the Open Meeting Law.
In a January 6, 2012, letter from then Board counsel Scott Wakefield responding to the allegations, he stated that the Audit Committee members were not formally appointed to their positions until the January 18, 2011, meeting. Therefore, he argued, there could not have been an Open Meeting Law violation “as such persons were not yet members of a body subject to the OML.” I sought further clarification of his position on this matter and in a March 13, 2012, letter he stated that he rested his position upon the definition of “advisory committee” in AR.S. § 38-431(1) which is a committee “officially established, on motion or order of a public body or by the presiding officer of the public body.”
Our Office disagrees with Mr. Wakefield’s position in two respects. First of all, the Audit Committee had been “officially established, on motion or order of a public body” on December 15, 2010. The Audit Committee was established by a vote on a motion of Chairman Blauert at the December 15, 2010, Board meeting. Mr. Blauert
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moved to have Mr. Christensen develop a committee for an RFP for a forensic audit. The motion passed at that meeting, thus establishing the Audit Committee, though not its actual membership which Mr. Christensen was given full authority to name in the future. No subsequent motion or vote was required or held by the Board to accept the members selected by Mr. Christensen. The members were merely introduced at the January 18, 2011, Audit Committee meeting. The Audit Committee had been officially established as of December 15, 2011.
Furthermore, we find such a reading of the Open Meeting Laws to be too restrictive and also contrary to the purposes behind the Open Meeting Laws. This is especially so in light of ARS § 38-431.09 which sets forth the policy behind the Open Meeting Laws and its charge that any person or entity charged with interpreting the Open Meeting Law “shall construe this article in favor of open and public meetings.” To accept Mr. Wakefield’s interpretation of the statute would allow for the total circumvention of the Open Meeting Law. His interpretation would allow such committees, which are clearly subject to the Open Meeting Law, to meet in secret during the gap of time between their informal selection and their formal appointment, creating the potential where all business of such a committee could be done in secret before formal appointment. This is clearly not envisioned by the Open Meeting Law.
We have taken note, as Mr. Wakefield pointed out, that the original Audit Committee’s recommendations were rejected by a vote of the Board at the March 23, 2011, Board meeting because of various concerns, including possible Open Meeting Law violations. A new “Audit Committee” was selected to start the process over, though the new committee did include Mr. Cosse and Mr. Zirinsky who were members of the original Audit Committee. While this does not remove the fact that a violation occurred, it was considered by our office as a mitigating factor.
3. Notice Required by A.R.S. § 38-431.03(A)(1) Was Not Provided On January 11, and 19, 2012, a two-part Fire Chief Selection Committee (Selection Committee) meeting was held to consider various applicants for the position of Fire Chief.
One of the applicants for the Fire Chief position was Terry Keller, the Assistant Fire Chief, and a Sedona Fire District employee. During the course of the two-part meeting, Mr. Keller’s application was considered and discussed by the Fire Chief Selection Committee. Notice of the two portions of the meeting was provided to the public on January 9 and 17, 2012, respectively. However, Mr. Keller was not given written notice twenty four hours in advance of the meeting telling him he was entitled to make a decision as to whether he would like any discussion of him for the position of Fire Chief conducted in public or not.
Based upon our review of the information, Mr. Keller was entitled to receive the twenty four hour written notice required by A.R.S. § 38-431.03(A)(1). He was an employee of the Sedona Fire District and he was being considered for either a position of employment, appointment to a position, or a promotion. He was therefore entitled to the notice set forth in statute. The failure to provide him with that notice was a violation of the Open Meeting Law.
In a March 23,2012, letter from Mr. Wakefield, he asserted that the notices and agendas for the January 11, and 19,2012, meetings mistakenly identified the reason for the executive session as being A.R.S. § 38-431. 03(A)(1) when the Board had actually intended to call the executive session under A.RB. § 38-431.03(A)(2). A.R.S. § 38-431.03(A)(2) allows executive sessions to be held to allow a public body to discuss or consider records exempt by law from public inspection. He cited Arizona Board of Regents v. Phoenix Newspapers, 167 Ariz. 254, 806 P.2d 348 (1991) for the proposition that names of and employment applications submitted by prospects for employment who are not interviewed may be maintained as confidential, and withheld from public disclosure under the Public Records Law A.RS. § 39-121 et seq. He then went on to state that under an executive session held pursuant to A.R.S.§ 38-431.03(A)(2) Mr. Keller would have no right to notice or to request a discussion of his application in a public session. He stated that the error was at worst a technical error which had no prejudicial effect on Mr. Keller.
We disagree with Mr. Wakefield’s analysis. First of all, ARS. § 38-431.03(A)(1) is the section which permits a public body to consider and discuss applicants and their applications for a position as an officer, appointee, or employee in an executive session. This applies to applicants for employment or appointment even though they may not be currently employed by the public body. See Arizona Agency Handbook section 7.9.4 (2012). This is the proper section under which the executive session was and should have been noticed. That section clearly
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grants a current officer, appointee or employee the right to demand that discussion or consideration of their employment, appointment, or promotion, which would otherwise be held in executive session, be held at a public meeting. It also requires that they be given notice in writing that such a discussion or consideration will occur at a meeting twenty four hours in advance of the meeting.
As for A.R.S. § 38-431.03(A)(2), it is very questionable whether that section would allow an executive session to be held to discuss employment matters. The grounds allowing discussion of matters in executive session under open meetings laws are narrowly construed by courts in order to give effect to the purpose of such laws. See, Fisher v. Maricopa County Stadium Dist., 185 Ariz. 116, 123-24912 P.2d 1345, 1352-53 (App. 1996). A public body has the burden of proving an executive session falls within the statutory exceptions. Id. at 121, 912 P.2d at 1350. A.R.S. §38-431.03(A)(2) allows executive sessions to be held to allow a public body to discuss or consider records exempt by law from public inspection. The discussions regarding the applications the Board was considering in this matter were not exempt by any specific law from public disclosure. So there is no direct basis for holding an executive session under A.R.S. § 38-431.03(A)(2).
Even under the common law, it is not clear that such records are exempt. The Board of Regents case does not clearly make consideration of such applications exempt from disclosure. That case involved a balancing of interests under the balancing test set forth in Carlson v. Pima County, 141 Ariz. 487, 687 P.2d 1242 (1984), which is a test that has to be applied on a case by case basis looking at the specific facts in a case. The Court in Board of Regents weighed the specific interests that were present in that specific case. The Board of Regents holding did not set forth a general rule making all consideration of prospects for any position for any public body confidential. What it held was that in that specific instance, the public’s right to access to the information was outweighed by Board of Regents need to obtain qualified candidates, which would be hindered if the information were made public.
It is also unclear whether the applicants for the Fire Chief position would have been “prospects” or “candidates” under the Board of Regents decision. Under the holding in that case, the information regarding “prospects” was able to be kept confidential, but information regarding “candidates” was not afforded confidentiality. Prospects were distinguished from candidates in that candidates have an express desire for the job and are actively seeking the position. As the court noted, candidates who actively seek a job run the risk of their desire becoming public knowledge. Prospects on the other hand “may not know that he or she has been nominated, may not wish to be, and may find it embarrassing and harmful to his her career”. All of the applicants for Fire Chief were actively seeking the position as evidenced by the fact that they submitted applications. Therefore, even if the holding in Board of Regents were applicable, it is unlikely it would grant any confidentiality to the applicants for Fire Chief and therefore it would not provide a sufficient basis for holding an executive session under A.R.S. § 38-431.03(A)(2). Therefore, if the executive session was intended to be called under A.R.S. § 38-431.03(A)(2), we believe it would have been called for an improper purpose in violation of the Open Meeting Law.
We find that the Board correctly noticed A.R.S. § 38-431.03(A)(1) when it sent its notice for holding an executive session to discuss the applicants for the Fire Chief position. However, the Board did not comply with the requirements of that section of law because it failed to provide Mr. Keller, an employee of the Fire District, written notice twenty four hours in advance so that he could consider whether to require discussion of his application in a public session.
We have taken into consideration the fact that the violation in this matter was made based upon a good faith belief by the Fire Chief Selection Committee that they were following the law. The public portions of the minutes for the meeting on January 11, 2012, indicate that Brent Johnson, one of the members of the Selection Committee, raised the issue of whether Mr. Keller was required to receive the statutorily required notice before the Selection Committee could proceed.
The Committee was then advised by Mr. Wakefield, who was present at the meeting, that such notice was not required at that stage of the selection process. The Selection Committee then proceeded into an executive session and discussed and considered the various applicants, including Mr. Keller, over the course of the two-part meeting. The fact that the Fire Chief Selection Committee was acting under the advice of legal counsel does not remove the fact that a violation occurred. However, it does mitigate the severity of the violation.
Areas of Concern:
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In addition to the violations noted above, certain other circumstances were noted by our Office as areas of concern.
While these items did not rise to the level of violations of the Open Meeting Law, they do raise issues which should be addressed so that the public will have greater access to and confidence in government.
One area of concern relates to the joint Board and Audit Committee meeting that was scheduled to be held on March 1, 2011, for the purpose of conducting interviews with Respondents to the Audit RFP.
A meeting notice was issued to that effect. However, the interviews of the Respondent companies were conducted prior to and outside of the public meeting at which they were to occur as evidenced by the meeting minutes for the March 1, 2011, Joint Board and Audit Committee meeting.
The information received during the investigation indicated that the interviews were not conducted by a quorum of the Board, so we did not find that a meeting was held prior to the noticed meeting. And while the Open Meeting Law limits items that can be acted upon in a meeting to those that are properly noticed on a meeting agenda, the law does not require that every item on an agenda be discussed and addressed at that particular meeting. Therefore, we did not find a violation in the fact that the interviews were not conducted at the meeting, even though noticed on the agenda.
However, we do find it concerning that the public was told the interviews were going to be done in a public meeting, a meeting notice was issued to that effect, and then the interviews were not conducted at the meeting as the public was informed. While it may have been more expeditious to have one or two Audit Committee members interview the Respondent’s to the RFP prior to the meeting, doing so after noticing a meeting where the interviews were to be conducted is a bad practice in our view.
Such conduct breeds suspicion and distrust towards government. We strongly recommend that the Board and any of its duly appointed committees refrain from engaging in such practices in the future.
A second area of concern involves the allegations that were made that Members of the Board have been polled as to how they would vote prior to meetings. Based upon the information reviewed by our office, we did not find that there was sufficient evidence to support a conclusion that polling has been occurring. The burden of proof to establish an Open Meeting Law violation is on the person alleging a violation. Fisher v. Maricopa County Stadium Dist., 185 Ariz. at 120-21, 912 P.2d at 1349-50. In this case we found the evidence regarding polling insufficient to conclude any violation had occurred.
While we did not find a violation in regards to polling, our Office believes that it never hurts to reiterate the point that “polling” by a member of a public body of other members as to how they will vote is not allowed under the Open Meeting Law. Such polling is not to be done directly by the members or indirectly through surrogates. We understand that Members of a public body often have a fairly good idea of where their fellow members stand on an issue based on the past statements or positions of those members. Forming a personal belief as to how another member(s) will vote is not against the law. However, actively inquiring into how fellow members intend to vote on a specific issue is not allowed.
The last area of concern relates to opening and closing meetings in executive session. An allegation was made that the January 11, 2012, meeting was closed outside of a public session and that the January 19, 2012, meeting was opened outside of a public session. Review of the minutes to those meetings does show that the January 11, 2012, meeting was closed in executive session and the January 19, 2012, meeting was opened in executive session. While we did not find this to be a violation of the Open Meeting Law, our Office believes the better practice would have been to exit from the executive session and go back into the public portion of the meeting and then to address continuing the meeting. Then at the next meeting, hold a public portion where a vote to go back into executive could be made. This practice would help to keep the public apprised of what is occurring.
Remedy The Open Meeting Law provides recourse through the courts to address violations of its provisions, but our Office only uses the power of the courts in extreme cases. Our Office views it’s main objective as ensuring that public bodies that have violated the Open Meeting Law receive appropriate training and monitoring so that future violations of the Open Meeting Law do not occur.
Accordingly, we try to resolve violations through a mutual agreement with the public bodies involved which will address the issues that have lead to the violations and prevent their recurrence.
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In deciding what recourse to take in this case, we considered the nature and circumstances of the violations that occurred. As mentioned above, we took into account that the Board recognized there were issues related to the “Audit Committee” and subsequently replaced the committee with a new one.
We also took into account that the Fire Chief Selection Committee was acting based upon guidance from legal counsel when it proceeded without having given proper notice to Mr. Keller. We have also taken into account the fact that three previous members of the Board, including the chairman, have been recently removed from office through a recall election and have been replaced by new members.
Based upon all of the circumstances, our Office proposes the following settlement Agreement: All members of the Board are to receive training on the requirements of Open Meeting Law. This is especially important now that the Board has three new members. The training is to be provided by a provider approved by our Office.
We will approve training by you Mr. Whittington, as we are aware of your knowledge of the Open Meeting Law from previous dealings with our Office. The Ombudsman’s Office is also acceptable.
The Attorney General’s Office will monitor and review Board meeting notices, agendas and minutes for a period of 6 months. If any concerns are found we will address those with the Board through the Board’s Counsel;
The Board will have legal counsel versed in Open Meeting Law present at all regular Board meetings for 3 months following execution of the settlement agreement to insure compliance with the Open Meeting Law;
The June 8, 2011, Executive Session minutes will be read at the next regularly scheduled Board meeting and copies will be made available to the public. That Executive Session was not held for a valid purpose and the minutes of that executive session are not entitled to confidentiality.
Terry Keller is to be given an opportunity to review the portions of the January 11, and 19, 2012, Fire Chief Selection Committee Executive Session tapes that relate to him. He is entitled to review those portions of the tapes under A.R.S. § 38-431.03(8)(2). He will then be allowed to decide if he wants to have the portions of the tapes relating to him made available to the public. If he decides he wants those portions made available to the public, those portions are to be played at the next regularly scheduled Board meeting. If transcripts are made of the tapes, then he can be provided with copies of relevant portions of the transcripts instead.
Because several of the violations related to committees created by the Board, if it has not already done so, the Board is to develop and enact a written policy for training and educating members of such committees on the requirements of the Open Meeting Law as well as ensuring their compliance with the Open Meeting Law. The policy is to be submitted to the Attorney General’s Office for review and approval.
That this letter and the proposed settlement shall be appropriately noticed on the agenda of the next regular Board meeting. The letter will be read aloud, discussed, and copies of the letter shall be made available to members of the public. The letter shall also be approved and/or appropriately ratified at the next regular Board meeting. A copy of the notice and agenda for that Board meeting shall be sent to me at the Attorney General’s Office.
If the proposed agreement is acceptable to your client, please so indicate by countersigning this letter and returning it to me on or before July 31, 2012. If this agreement is not acceptable, the Attorney General’s Office will move forward to enforce the Open Meeting Law and seek appropriate further remedies.
Sincerely, Kevin R. Smith, Assistant Attorney General Cc: Complainants PHX-#2646279 The Sedona Fire District Governing Board and its Board Members agree to the terms set forth in this letter, and are authorized to enter into this agreement.
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Mr. Montgomery then entertained a motion to approve the Agreement with the Arizona Attorney General dated June 20, 2012; Mr. Hazime so moved; Mrs. Cooperman seconded; the motion unanimously passed.
2. That arrangements be made to permit all members of the Governing Board to receive training on the requirements of the Open Meeting Law, said training to be provided by an individual approved by the Attorney General’s office.
Mr. Montgomery stated the Open Meeting Law training was provided to the entire Governing Board by the approved individual, Bill Whittington, at today’s meeting, in order to satisfy this requirement.
3. That the meeting notices, agendas and minutes of the District Governing Board, for a period of 6 months, be forwarded to the Attorney General’s office for review.
Mr. Montgomery said the Board agreed to this stipulation and asked Executive Assistant Tricia Greer to forward those documents to the Attorney General’s Office.
4. That the legal counsel versed in Open Meeting Law be present at all regular Board meetings for a period of 3 months following execution of the settlement agreement.
Mr. Montgomery stated the Board’s intention to have Attorney Bill Whittington present at the meetings; Mr. Whittington said he has a potential conflict with the October Board meeting and will contact the AG to request permission to either extend the requirement by another month or to have another attorney from his firm attend.
5. That the minutes of the June 8, 2011 Executive Session be read at the August Governing Board meeting and copies be made available to the public.
Mr. Montgomery stated to fulfill this requirement, the Executive Session Minutes of 6/8/11 must be read into the record and noted copies are available for members of the public. He then began the reading, as follows:
EXECUTIVE SESSION MINUTES
Station #1 – 2860 Southwest Drive – West Sedona – Multipurpose Room Wednesday, June 8, 2011 / 6:00 PM
Board Present: David Blauert – Chairman; Craig Dible, Phyllis Erick, Ty Montgomery – Members Board Absent: Charles Christensen – Clerk Others Present: Nazih Hazime, Fire Chief Karen Daines, Business Director Terry Keller, Assistant Chief Carla Dufort, Administrative Lead (as Recorder)
The Executive Session was called to order at 7:44 PM.
Mr. Blauert said after Mr. Hazime resigned, he had a meeting with Mr. Keller. At that time, he made a request of Mr. Keller to act as Chief until getting a temporary Chief. After that, he left Sedona for two days to attend a birthday party. He also talked to Attorney Whittington and received input from him to hire a temporary Chief, which he considered on his trip to Colorado. Upon his return, he, again, met with Mr. Keller and Ms. Daines. At that time, Mr. Blauert’s recommendation was to maintain Mr. Keller at his present level, and he asked Ms. Daines if she would maintain the business part of what Mr. Hazime represents as to the day to day operation. He stated his total confidence in both people. He commented that Ms. Daines and he have never seen “eye to eye”, but he respected her. Simultaneously, he looked into our District and what he felt was in the best interest of the District. He talked to past employees who had served at BC levels and sought out recommendations. They concurred with what Mr. Whittington had said. From there, he continued to explore people that would serve a temporary position until the Board could hire a permanent Chief. He said they know the process of interviews, and how long it takes, which would not be “overnight”. That is why he came to the decision that we need somebody here that has a history of leadership, and this man is accomplished and would be an asset to SFD. He said he went through three weeks of constant telephone calls with Mr. Dudley. His comment was that he would like to have support and legal direction to invite this gentleman for an interview. His thought is he would also highly recommend that staff have separate interviews with this gentleman to get comfortable. Mr. Blauert then read over Mr. Dudley’s attributes (following page).
Mr. Montgomery noted the following page contained Mr. Dudley’s resume and biographical information, and continued reading, as follows:
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Mr. Blauert said Mr. Dudley is retired and when he caught him, telephonically, he asked what he was doing and his comment was “watching the water come and go”. Mr. Blauert asked him if he was interested in something of this nature, and Mr. Dudley wanted to give it some thought. We then started on a process of what would be expected, and that it would have to be on a temporary, not permanent basis. Mr. Blauert said he chose this effort from encouragement and direction from people he highly respects. He said he is looking to Board Members for support, but if not, he would call this gentleman and tell him we could not work it out.
Mr. Montgomery commented that Mr. Dudley has not been a Fire Chief and worked for a volunteer organization. Mr. Blauert agreed that is correct. Mr. Montgomery stated he does not believe his credentials would match since he had never worked for a full-time fire department. Chief Hazime asked if the Board would take time to really get into this person’s head and would he end up giving a recommendation. Mr. Blauert replied that he had shipped more records and history to Mr. Dudley and that he probably knows more than anyone in this room. Mr. Montgomery stated that he had unilaterally decided to do this. Mrs. Erick commented she felt they were blindsided and not talked to about it and she would like more information. She said she does not mind bringing an outsider in because maybe that is the answer to this “whole mess”, and it may be the best thing for the district, but wants more time to think about it. Chief Hazime said he was not sure how long his hiring process took; Chief Keller replied it was 18 months – easy. Ms. Daines commented from the time former Chief Matt Shobert left, that the recruitment started, but it took time because for a while, Bill Boler served as interim; additionally, there was no one in Human Resources. Mr. Blauert said he received a service that said they had 245 chiefs available. Ms. Erick commented she wants to see a Chief with more business background, although she was not saying the person should not have fire experience. Mr. Blauert said his agenda here is doing the best job for the district, and he took it upon himself to bring it to this level, but if it is not favorable at this time, then it can be dropped. Mr. Dible said his question is the time frame; realistically, without rushing and being hasty, would it most likely be 5 to 6 months, and if there is an 18 month gap to bridge, he would justify bringing in a temporary Chief; but, if this can be accomplished in 5 or 6 months with Chief Keller running the show until then, bringing in someone else seems redundant. Chief Hazime agreed with Mr. Dible and asked Ms. Daines if this timeframe was doable. Mr. Montgomery commented if there are 250 available, he could not see this taking 18 months.
Ms. Daines said SFD did not have an H.R Manager in place for Chief Hazime, so she helped put together a process. She said they did steps that were “above and beyond” because they wanted to show the Community we wanted their input. There was a Citizen Committee to establish what type of Chief we wanted. She said a 5 to 6 month time frame is very doable. Mr. Dible said Ms. Daines needs to make this a priority, especially if we use an outside firm. Chief Hazime said if you bring in a temporary, you are expecting a year out. Mr. Dible stated if we can shorten the process, it sounds like we should have a Chief by the end of the year; he asked if we could do this while Chief Hazime is around. Ms. Daines replied as long as we don’t “double hire”. Chief Hazime said that June 17th would be his last day in the office. Ms. Daines said Chief Hazime would be paid through the end of August, and we would have a salary savings which we use to pay for recruitment. Mr. Blauert said his recommendation is he would like to see Mr. Keller in that position and would like to have a working relationship with Ms. Daines. Chief Keller asked about compensation. Mr. Blauert said it needs to be worked out and respected and would be an issue of employment. Ms. Erick said it would be a Board decision. Mr. Blauert stated we would be searching for a permanent Chief and Chief Keller would return to the position he is in today; the new Chief would have to realize that at the time. Mr. Montgomery commented unless Chief Keller would like to apply for the permanent job. Mr. Dible stated this would be doable by the end of the year. Chief Hazime responded, yes. Ms. Erick stated we should start the process immediately and inquired if it would require Board action. Ms. Daines replied it would not require formal action; we can contact a search firm. The contract for the firm may require a special meeting to start the work; however, she said we have a lot of material from Chief Hazime’s recruitment process. Mr. Blauert said Ms. Daines would be the acting HR manager, and he would like to see her maintain the effort for the search; at least monitor, help, and support it, as necessary. Ms. Daines said we have a meeting with an outside firm called DHR that is going to bring a proposal for a needs assessment and their fees; part of their proposal is to do recruiting, and we may use the contract to do this and that she would liaison through the process. Mr. Blauert commented he made a mistake in his effort, although he felt he was acting in the best interest of the district and told Mr. Montgomery he took offense to his comments toward him and requested an apology, but that he did not expect one. Mr. Montgomery retorted that he took offense that Mr. Blauert decided he could make a decision on his own and, so, they could both take offense. Mr. Montgomery stated that Mr. Blauert does not communicate with him, but
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does communicate with others on the Board. Mr. Blauert said there was no intention on his part to do anything but represent the tax payers.
Mr. Blauert asked for a motion to negotiate with Mr. Keller for interim Chief. Also, he would ask from the floor to recognize Ms. Daines in the HR selection process.
Ms. Erick made a motion to enter into negotiations with Chief Keller to act as interim Chief and Karen Daines to oversee the recruitment process until such time as a permanent Chief is hired. Mr. Dible seconded the motion. The motion passed with all in agreement.
The executive session ended at 8:31 PM.
Charles Christensen, Clerk of the Board (These Executive Session Minutes were taken by SFD Administrative Lead Carla Dufort.)
6. That portions of the minutes of the January 11, and 19, 2012 Fire Chief Selection Committee Executive Session tapes relating to Terry Keller have been made available to him for review and if he so chooses, those portions of the minutes may be played at this Board meeting, or if transcripts are made of the tapes instead, copies of the relevant portions of the transcripts be made available.
Mr. Montgomery asked Assistant Chief Terry Keller his preference for this requirement and that he could read the transcript aloud; Mr. Keller replied, “both”.
Mr. Montgomery then read the introduction to the transcription of the audio tape of the Executive Sessions of 1/11 and 1/19/12, as follows:
Transcription of Audio Tapes of January 11, 2012 and January 19, 2012 Executive Sessions of Sedona Fire District Fire Chief Selection Committee From the Minutes: MEETINGS of the SEDONA FIRE DISTRICT FIRE CHIEF SEARCH COMMITTEE On the following dates: Wednesday, January 11, 2012 / 4:00 PM
Station #1 – Multipurpose Room / 2860 Southwest Drive – Public Session Sedona Rouge Hotel & Spa – Conference Room / 2250 W. Highway 89A, Sedona – Executive Session ~ and ~ Thursday, January 19, 2012 / 6:00 PM
Station #1 – Multipurpose Room / 2860 Southwest Drive – Public Session 95 Soldiers Pass Road, Suite A-2, Sedona – Executive Session
Committee Present: Phyllis Erick, Board Member; Joe Demme, Chairman; Wendy Ferguson; Brent Johnson; Ray LeRoy; Tom Purcel
Committee Absent: Simon Davis Others Present: Gary Johnson, Fire Marshal; Scott Wakefield, Attorney; David Blauert, Board Chairman; About 10 Citizens
III. C. Review and discussion of applicants for SFD Chief. Discussion of this item will be held in executive session pursuant to A.R.S. § 38-431.03(A)(1).
At approximately 4:50 PM, Mr. Demme then entertained a motion to move into Executive Session; Mr. Purcel so moved, Mr. LeRoy seconded, and the motion passed unanimously.
Mr. Montgomery then read the pertinent sections of the transcription, as follows:
Erick: OK. Next one. Ready? 30. Terry Keller.
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Ferguson: Got it. This should be easy. I have it real low…I’m serious. I just didn’t like it at all. I don’t know why… (unintelligible) Oh.
Purcel: He’s going to…Terry’s going to be number 30.
Ferguson: I’m not sure I realized who that was… I’m sorry.
Erick: I am not…Well, I’m not gonna’ say anything else.
Ferguson: But, I…I just scored it honestly. I mean, I didn’t… I didn’t….
Erick: Then, that’s good. You didn’t know who it was. That’s fine.
Ferguson: I didn’t.
LeRoy: Let’s…let’s go faster.
Erick: OK. Bachelors.
Erick: 5 year, 10 year, management and Fire/EMS. Yes?
Erick: 5 year budget of a $2 million? I don’t think that’s been his job, but…
Demme: Does he have the budget experience? I don’t know. I don’t think…
Erick: He hasn’t handled the budget. He hasn’t been the Chief.
Demme: He hasn’t had the financial background.
Ferguson: Because that’s kinda’ what we’ve always been saying about these other folks…they’ve been listing the budget, that they’ve been working on it, but…
Johnson: He does handle a portion of the budget. I’m not sure how much it is. And, then, of course, he sits in all the budget workshop meetings. So, he is involved in the structuring of the budget. I can tell you that.
Ferguson: Oversight and management of a current operating and capital budget.
Erick: But, has he had control of the budget? No. If you think about it…
LeRoy: Yeah, but you know, a lot of people we’ve given them credit for it, it’s very vague as to whether…and I can go back one or two right here…
Johnson: Unless we’re only hiring Fire Chiefs, you’re not going to be able to say that about anybody.
Erick: OK. So, yes. OK. He’s a D1. 7, 12, Arizona. Does he get 3?
LeRoy: Yeah. Yes.
Erick: OK. CFO, Masters degree, EFO?
LeRoy: No Masters.
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Purcel: I think…I think I saw…let’s see…
Demme: Terry is a professional speaker (?) for his…professional speaker at…(overlapping). LeRoy: He has a Bachelor of Science. He majored in Economics and minored in Business Administration. And German. So, who are we to say a German?
Purcel: Alright. What number are we on again?
Erick: …we’re on CFO, EFO, Masters…zero, right? (overlapping)
LeRoy: No CFO or EFO or Masters, no.
Erick: OK…Strategic planning, contracts, grants.
Demme: Well see, he wasn’t involved in the grants.
Ferguson: Well, we got, authored successful FEMA grant for fire station diesel exhaust, $146K…all-hazard response vehicle, $180K. Portable radio … at $90K.So, he’s got grants.
Erick: No strategic planning, though.
LeRoy: He’s a lot more Nos.
Erick: Doesn’t look like it.
Purcel: That’s 1 point there. And I have a question back on A. Did…did he get 1 or 2 on A?
Erick: He got 3 on A.
Purcel: 3, OK.
Erick: He got zero on B.
Purcel: OK. Got that. OK. Now, we’re on D.
Erick: Yes. C. We’re on C. We’re trying to determine whether he’s done grants.
Erick: You say so?
Erick: OK. So, strategic planning is not listed, or is it?
Johnson: I believe he’s involved with that, but I don’t know the circumstances.
Erick: Well, it’s not on here, so we’re going to give him a 1. OK…D, Communications, documents, written.
LeRoy: ‘Responsibilities include planning, developing, and oversight of district budgets related to the Operations division’. That where he is?
Purcel: D. Application communication, quality of documents, written communications.
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Ferguson: Yeah, I thought it was pretty good.
LeRoy: Yeah, I thought it was good.
Erick: OK. Give him 1.
Purcel: I think so.
Erick: Wow Factor.
Ferguson: Well, I can’t say that I was…
Purcel: Why would you?
Ferguson: Just ‘cause I didn’t have a check on there. I didn’t realize that it was from…
LeRoy: I guess I have a little bit of a Wow Factor; here’s a guy that’s been here since it was all volunteer, worked his way up through the ranks, I mean, that’s…that’s impressive.
Ferguson: That’s true.
Erick: I think I have to have a majority vote. Yes or No? F
erguson: I’m glad I got to decide before I knew. I didn’t have a Wow.
Demme: I…I don’t have a Wow either.
Erick: OK. That’s a No. OK. Work history?
Erick: OK. And Veteran?
Purcel: I didn’t see it.
Erick: OK. We’re on 31.
Purcel: 30. He was number 30. Terry Keller.
The next section pertaining to Chief Keller was:
Wakefield: I think we did that for Terry Keller.
The next pertinent section was:
Erick: Uh-huh…and then, we’ve got three 6s.
LeRoy: Alright. Who are they?
Erick: The one is number 30.
Demme: That’s Terry Keller.
The final section pertaining to Chief Keller was:
Purcel: No, Terry Keller.
Demme: Oh…Terry Keller qualified with 6.
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Mr. Montgomery then asked that the audio tape be played, but Chief Keller declined to have it played aloud.
7. That the Governing Board, if it has not already done so, shall develop and enact a written policy for training and educating members of Board created committees on the requirements of the Open Meeting Law, and that such policy be submitted to the Attorney General’s office for review and approval.
a. Revision of SFD Fire Board Rules of Procedure regarding Board-appointed committees.
Mr. Whittington submitted a redline version of the policy to the Board Members with his suggested language revising the SFD Board’s Rules of Procedure to comply with the AG’s request.
Mr. Montgomery entertained discussion or a motion to accept the revision of the red line policy; Mrs. Cooperman moved to accept the recommended language and revise the SFD Board Rules of Procedure; Mr. Hazime seconded.
Mr. Whittington noted he received confirmation from Kevin Smith in the AG’s Office today that the recommended language was fine; the vote was then called which passed unanimously at 5 to 0.
Chief Kazian referred to the revision pertaining to appropriate e-mail verbiage and informed the Board it was provided to them and that SFD’s I.T. section is available to instruct how to include it on their SFD e-mails.
Mr. Montgomery believes the Board has now complied in principal and in reality to requirements of the Attorney General, with the exception of Mr. Whittington attending the next three meetings which will occur provided the AG agrees to the extension; Minutes will be provided for the next six months; he said there was a question whether Executive Session Minutes are to be sent to the AG; Mr. Whittington left a message with the AG’s office to confirm that, and noted, regardless, the AG is entitled to any executive session minutes.
Mr. Montgomery stated the Board’s intentions are to meet the AG’s requirements and will continue to comply with the Open Meeting Law. Mr. Hazime commented they were clear on what they should not be doing.
C. Lowell Johnson Complaint.
No action was taken on this item.
V. PUBLIC FORUM.
A. Public Comments.
There were no requests from the public to speak.
B. Executive Staff Response to Public Comments.
No response was needed.
VI. CONSENT AGENDA.
A. Consent Agenda – Discussion/Possible Action: 1. July 18, 2012 SFD Public Budget Hearing and Regular Business Meeting Minutes.
2. July 18, 2012 Executive Session Minutes.
Mr. Montgomery entertained a motion to approve the Consent Agenda, as presented; Mrs. Schoen so moved; Mrs. Cooperman seconded and the motion unanimously passed at 5 to 0.
A. Badge-Pinning Ceremony for Engineer Allen Schimberg.
This item was completed earlier in the meeting.
B. Items from Staff: 1. Monthly Staff Report – Fire Chief Kris Kazian.
Mr. Montgomery asked Chief Kazian to give his report, which was included in the Board’s packets. Chief Kazian said one change made this month was to add a column for year-to-date information on the types of incidents, which is more anecdotal than showing trends because of the way emergencies occur. He said July was the busiest month of the year so far with 337 calls and pointed out the Oak Creek Canyon Station has been busy during this tourist season. Chief Kazian said one incident of note would be the aircraft crash with fire on
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July 26th, when a plane went off the end of the runway and fell to the bottom of a canyon resulting in three fatalities; Chief Kazian was impressed with the skill level of SFD crews traversing down the steep embankment in full firefighting gear with fire hose. He said SFD worked well with Sedona Police Department, Forest Service, Airport Authority, and DPS in its response; the cause is under investigation and to be determined by the National Transportation Safety Board.
Chief Kazian informed the Board of a heroic rescue on Thunder Mountain two Saturdays ago; one of our Firefighters, Brent Johnson, repelled from a helicopter with extreme proximity to the mountain face, and firefighters hiked through treacherous terrain to the injured patient; due to the inability to use GPS tracking to locate the patient, firefighters probably hiked extra miles in finding him and experienced dehydration issues.
Mr. Montgomery asked about the international cell phone used; Chief Kazian said the phone did not have components necessary for GPS; after locating the patient, Firefighter Johnson and the patient were flown dangling from a rope under a helicopter from Thunder Mountain to the Sedona Airport to a medical helicopter.
Chief Kazian informed the Board that staff met with the Executive Management team to look at creating a balance in the organization based on district needs in the Administrative section; he proposed creating a Division Chief of Support Services to oversee Finance, Human Resources, and the office staff by utilizing existing personnel at the Battalion Chief level; he said that position could be created without incurring too much expense because of other positions being held vacant and by the time the proposed Training Officer is installed, funding will be available with minimal impact to the budget; he then distributed a draft organizational chart to the Board with his suggested revisions for informational purposes.
Chief Kazian said utilizing existing personnel for the new Division Chief position will create openings below for promotions. He said he is proud of all SFD employees and this is a growth phase which must be addressed because of district needs to operate.
Mrs. Cooperman asked the expected timeline; Chief Kazian replied October 1st is the date projected to install the Division Chief; he said there are three offers out currently to fill three vacant, budgeted firefighter positions, and they are expected to start on September 15th; the Training Officer position was opened and two internal candidates have applied with an expected installation date of October 15th.
Mr. Hazime clarified the new position on the draft organizational chart was the Division Chief of Support Services and Chief Kazian stated that was correct. Mr. Hazime asked if there could be additional discussion about this and Chief Kazian said as it is not agendized for tonight, he would include it on next month’s Agenda.
Mr. Montgomery commented he has often wondered how the responsibilities of the positions that are no longer occupied were being covered. He asked Chief Kazian to clarify the number of aircraft incidents versus previous years; Chief Kazian said to date, there were three last year as well as this year; however, many of those were not as serious as this; SFD is working with the Sedona Airport Authority to enhance its emergency planning.
2. Wildland Fire Update.
Chief Kazian reported there are three SFD employees on wildland fire deployments with several having returned this week. It is possible the Federal government may fly two more SFD firefighters to Idaho to replace two currently there, as well as leaving the SFD water tender for another 14 days. He said it has been reported this year is about 25% above the ten year average of acreage burned.
3. July 2012 Financial Report.
The report was included in the Board packets; there were no questions from the Board.
4. Discussion/Possible Action: House Bill 2643 – Relating to Public Safety Employees; Standard Administrative Procedure and Board Policy for compliance with legislation.
Chief Kazian stated this legislation caught the State’s fire service by surprise, and was not initiated by the fire service. He said as it was scheduled to take effect on August 2nd, SFD staff has been working with insurance companies, most of which do not have compliance policies prepared, to find insurance coverage; it is, essentially, an unfunded mandate that requires agencies to make operational employees “whole” in salaries when on Workers Compensation; employees are no longer allowed to use Sick or Vacation Leave hours to
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make up the remaining 33 1/3% of their salaries not covered by Workers Comp; public agencies are now required to have an insurance policy to cover that amount, as well as pay both the employer and employee portions of pension contributions. The timeframe to cover affected employees is up to six months with an option to extend it for six months. Staff is researching financial implications, but no figures are in writing yet to inform the Board.
Chief Kazian said there is currently no one on Workers Comp under this new requirement, but it is “only a matter of time” and the district must be prepared. He said our SFD Workers Compensation Standard Administrative Procedure is being revised to comply, and there was a question whether a Board Policy would also be needed. Mr. Whittington said no Board Policy is required and the district’s procedure would suffice.
Mr. Montgomery asked about the origin of the new legislation. Mr. Whittington replied he traced it to Maricopa County Sheriff Arpaio’s office. Mr. Montgomery asked if there is an estimate in the cost of insurance, as well as the average of Workers Compensation pension contributions. Chief Kazian is determining if the insurance coverage will also leverage against pension contributions, but there are no firm cost estimates yet; Chief Kazian hopes to have an insurance policy for approval at next month’s Board meeting. He said all public agencies in Arizona are “scrambling” to get the correct insurance coverage policy to abide by the law.
Mrs. Cooperman commented it is critical to get going as soon as possible and asked if the Chief wants to wait until the next month’s meeting to seek Board approval. Mr. Whittington stated the Chief would not need to wait as long as he has the necessary expenditure authority; Chief Kazian said that is $5,000, so if the premium is less than that, he could move forward. Mr. Montgomery suggested, if necessary, a special Board meeting could be held to approve the insurance coverage.
Chief Kazian remarked even if a Firefighter was hurt in the period between now and implementation of the policy, there are deadlines in place to meet Workers Comp requirements which would allow enough time for a remedy to the situation. Mr. Whittington said for clarification, a Standard Administrative Procedure would be fine, but there may be “pieces” of that requiring Board approval; he said the statute gives employers options regarding how long they allow an employee to participate in the plan and eligibility requirements, which have discretion built in; the Chief may decide he needs Board approval for some of those discretionary decisions depending on cost to the district. Chief Kazian said a copy of the statute was provided to the Board in their packets of information. Mr. Montgomery requested Chief Kazian distribute any updated information regarding the insurance policy or cost estimates to the Board.
5. Discussion/Possible Action: Intergovernmental Agreement for Election Services with Coconino County for the November 6, 2012 Fire Board Election.
Mr. Montgomery stated this IGA was included in the Board’s packets and asked for any comments. Chief Kazian said Board action must be taken to enter into this IGA for Coconino County to provide election services for the November Fire Board election and $6,500 is budgeted for the election; Mr. Montgomery entertained a motion; Mrs. Cooperman moved to enter into the IGA for election services with Coconino County for the November 6th election; a second was provided by Mr. Montgomery. For clarification, Mrs. Cooperman said her understanding is if SFD does not need that agreement, it would only cost SFD $50. Chief Kazian commented there are certain deadlines that make other things occur like a “domino effect” and he believes all candidate deadlines ended today and more information will be available from the county tomorrow. Mr. Montgomery then called for the vote which was unanimously approved at 5 to 0.
6. Discussion/Possible Action: Resolution #2012-09, Updating the Plan Coordinator Title of the ICMA 457 Plan.
Chief Kazian reported that in the past, the Plan Coordinator was listed as position the district no longer has, and staff recommended replacing that title with Fire Chief. Mr. Montgomery said he believes, previously, it was listed as the Business Director. Mr. Whittington said there was no issue with the Fire Chief being named on the plan. Mrs. Schoen moved to approve Resolution #2012-09, as presented; Mr. Hazime seconded, and the motion was unanimously approved.
7. Discussion/Possible Action: Audio/Visual Information Re: SFD Fire Board meetings at Station 3 in the Village of Oak Creek. (Tabled from 7/18/12)
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Chief Kazian said at last month’s meeting, there was discussion about hosting a couple of meetings in the Village of Oak Creek; he sent a Memo to the Board outlining his recommendations.
After discussing this with staff members, it was determined SFD has video equipment that could be utilized to record the meetings, although some AV equipment must be rented to connect the microphones directly into the camera to eliminate ambient noise at a cost of about $200 per meeting. Chief Kazian said this is an adequate recommendation for the Board to determine the interest in continuing meetings in the VOC and to provide video for the SFD website for the public to view. He stated there are other smaller costs, such as staff travel from Station 1 in West Sedona to Station 3 in the VOC, as well as determining a location for Executive Sessions, but they are not insurmountable.
Chief Kazian said if the Board wants to continue this on a permanent basis, he would recommend alternatives to create the ability to telecommunicate between the stations to use not only for Board meeting audio/visual needs, but to enhance training abilities.
Mrs. Schoen said she thinks we should look at attendance in this building compared to attendance in the VOC, and if the same members of the public are going back and forth, consider the logistics of continuing. Chief Kazian agreed, but pointed out it would take several years of statistics on the infrequent basis of two meetings a year to make that decision. Mrs. Cooperman stated in the spirit of recognizing our large district, she likes the idea of going two times a year to the VOC, and especially, at the low cost that Chief Kazian indicated. Chief Kazian said one of those meetings would be a Budget Workshop in March, which means the budget information would be presented to a more diverse public. Mrs. Schoen agreed a Budget Workshop would be valuable to hold in the VOC as well as West Sedona. Chief Kazian suggested that if the Board decides to make a motion, that the October and March Board meetings from here forward be held at Station 3. Mrs. Schoen then moved to have Fire Board meetings held in the Village of Oak Creek during the months of October and March; it was seconded by Mr. Dible and unanimously approved.
8. Update: Regional Communications Center. a. Discussion/Possible Action: Revising IGAs for Dispatching with the following agencies:
Black Canyon City Fire District.
Camp Verde Fire District.
Clarkdale Fire District.
Cottonwood Fire Department.
Jerome Fire Department.
Mayer Fire District.
Montezuma-Rimrock Fire District.
Pinewood Fire District.
Verde Valley Fire District;
Verde Valley Ambulance Company.
Chief Kazian reminded the Board that last month an IGA was proposed, which has been a great “springboard” of discussion for all our dispatch subscribers and led to several meetings on the Sedona Regional Communications Center; although he had hoped what was approved last month would be final, that is not the case; at this point, he will continue working with Mr. Whittington to address outstanding issues of the user group including technical concerns; he suspects a draft IGA will be ready in a week to distribute to the agencies for their Boards’ approval. He said staff is working hard to balance fiscal responsibility and meet emergency response needs of all the agencies for which we dispatch which covers over 2,000 square miles. Chief Kazian said he feels we will end with a product that is beneficial to all and which takes into account concerns from the past. He said staff would, hopefully, have a revised IGA for the Board next month.
9. Update: Station #6 Architectural Planning Process / LEA Architects.
a. Discussion/Possible Action: Architectural Agreement and Addendum with LEA.
Chief Kazian said staff met with LEA on August 7th to discuss functional issues with the current design, considering all aspects of emergency response needs for the station, building construction for longevity, and provided some ideas for changes. Mr. Whittington stated he reviewed the Addendum and has no particular
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issue with it; he said it appears to be an attempt to modify a contract previously put into place by this Board with LEA; he said if the Board chooses to approve this Addendum, they should include the small contract addendum language for general commercial contract use. Chief Kazian provided historical documentation from 2007 to the Board relative to this contract, and believes Mr. Whittington is comfortable that past work done can still be enforced with a simple Addendum. He said the Board previously approved up to $75,000 to re-work the design and if the Board approves this Addendum, it would be for $85,000 for the drawing and civil engineering which represents a $10,000 increase due to staff-requested design changes to save money in the long-run; the second half is $67,400 for Construction Administration.
The other important part to discuss is SFD began its relationship with LEA as a Construction Manager at Risk (CM@R) model, but now, is using the Design/Bid/Build model which requires changes to the contract structure and includes a Construction Administration provision; this puts the architect on site to manage drawings to ensure building is the same as drawings. Chief Kazian said none of these figures are “new”, but rather, are due to the changes to the CM@R model. He also pointed out the $2,500 engineering fee for a “pocket park” proposed by the City of Sedona, which if included would be funded by the City and could be a gathering spot, a healing garden, benches on the “friendship walk” between the churches, a memorial, etc. Mrs. Cooperman asked if the park would require more parking spaces; Chief Kazian responded, “no”. Mr. Montgomery asked if the figures being discussed would be for financing or come from the current budget; Chief Kazian said there is $200,000 allotted in this fiscal year for this project, but financing for the project is still to be determined. Mrs. Schoen pointed out because we have switched to the Design/Bid/Build model, it could create a lower bid; Chief Kazian agreed it is possible and said staff is working to make sure “we cut the corners we can cut and keep the corners we need to keep” to create a satellite station.
Mr. Dible asked what number is being proposed; Chief Kazian responded $85,000 for the re-draw, and $67,400 for the Construction Administration (CA) aspect because we are changing the model. Chief Keller pointed out even though SFD was formerly using a CM@R model, there was still a CA fee for the project in the previous contract for the same purpose, and in fact, the CA fee is now lower than it was. Chief Kazian reminded the Board we would see a savings by increasing design costs in order to decrease construction costs because of the proposed changes. To clarify, Chief Kazian referred to the Addendum and options listed for design, i.e., pocket park, engineering a system to interface and manage all SFD energy management controls (EMC), increase the bay size to fit the trucks SFD currently owns; $72,900 represents the amount it will cost to re-draw the building as designed, but to incorporate the recommended changes requested by SFD will cost another $7,500; $72,900 plus $7,500 equals $80,400 plus $4,600 contingency totaling $85,000; then, the $61,500 is for the CA portion plus $5,900 for additional CA services post-project.
Mr. Whittington said when this contract with LEA was put in place in 2007, there was an addendum attached, and the Board’s approval should make clear that this Addendum is intended to work with those prior documents including the 2007 Addendum; the 2007 Addendum also names former Fire Chief Matt Shobert as the contact, which should be amended to include current Fire Chief Kris Kazian; Mr. Dible noted in the August 13th memo, there never was a formal RFQ in the contractual process in 2007, but rather, through professional services; Mr. Whittington responded he was not able to confirm or deny the process, as it was held without his firm’s involvement. Chief Kazian stated there was a process held to select the architect and a RFQ for the proposed dispatch center; Chief Keller confirmed it was done under professional services, but there were multiple firms reviewed for the dispatch center, and then, when the focus changed to the Chapel Station three firms (Deutsch & Associates, Perlman, and LEA) were interviewed and submitted proposals for the project with LEA selected; this was all done under the CM@Risk model which means to choose your architect, pick your contractor, then draw plans that meet the budget and build to the quality desired. Chief Kazian asked Mr. Whittington to clarify if that is the standard CM@Risk process; Mr. Whittington indicated affirmatively.
Mr. Dible asked if a RFQ was for a specific project and RFP was more general; Mr. Whittington said a Request for Qualifications (RFQ) is to solicit a firm based on qualifications without reference to price; he said professional services are unique, although public agencies are entitled to use either process, but typically, a
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RFQ is used for professional services; Mr. Whittington said a Bid/Build contract will produce a “hard number” which makes it somewhat similar to a Request for Proposals (RFP); he said it may not matter whether you hire an architect under an RFQ or an RFP if, as part of the process, you have required they give you a particular quote; he said you could hire an architect based on their qualifications without any sense of the cost and then ask them to come up with a number before authorizing them to do the work; presumably, hiring someone by RFQ does not mean you agree to the price they propose; in this particular relationship, SFD actually got a “hard number” from LEA in order to do the initial architectural work, but they were selected by reference to their qualifications.
Chief Kazian said when entering the construction phase, SFD would use a RFP process. Mr. Montgomery said at this point, SFD is certainly invested to remain with LEA and it does not seem feasible to change direction and “start over” with someone else. Mr. Montgomery moved to approve Addendum No. 1 dated August 15, 2012 to the previous LEA AIA document B141 1997 – Part 1 and 2 dated August 24, 2007, as modified, provided that the Addendum is modified to remove Matt Shobert as the contact for the district and replace his name with Chief Kris Kazian, and allocate $4,600 of contingency funds and include the small contract addendum language, as provided by Mr. Whittington; Mrs. Schoen seconded, and the motion passed with a vote of 4 to 1 with Mrs. Cooperman, Mrs. Schoen, Mr. Hazime, and Mr. Montgomery voting in favor and Mr. Dible voting against.
10. Purchase Order #8034, Dell USA, in the amount of $21,630.68 for Enterprise Licensing Agreements for 7/1/2011 to 6/30/2012 and 7/1/2012 to 6/30/2013.
Chief Kazian said Dell forgot to invoice SFD last year, so this purchase order includes last year’s fee as well as this year’s for an enterprise licensing agreement and is budgeted with last year’s fee being allocated to last year’s budget. Mrs. Schoen moved to approve Purchase Order #8034 in the amount of $21,630.68 with Dell; Mr. Hazime seconded, and the motion was unanimously approved.
11. Discussion/Possible Action: Consider Changing September Board Meeting date.
Chief Kazian stated Yom Kippur falls on September 26th this year and recommended honoring that conflict by rescheduling the September Board meeting to Thursday, September 27th; maintaining it in the fourth week of the month helps our reporting deadlines. He said he has directed staff to create a Board meeting calendar in January for next year with the proposed dates for all meetings to avoid conflicts. Mr. Whittington is also available that date. Mr. Hazime said he would be out of town, but possibly available telephonically. Mr. Montgomery recommended the consensus of the Board is to tentatively schedule the meeting for September 27, 2012, which will allow the Board to check their calendars.
C. Item from Board member Craig Dible:
1. Response to Public Comments concerning Cost Estimates from Glenwood Springs Fire Station Three Revised Report, presented at the July 18, 2012 Regular Board Meeting.
Mr. Dible then read the following statement: I’m going to respond to Wendy Tanzer’s public comments from the July 18th Regular Board meeting which she also, subsequently, displayed on three separate Internet websites. In response to those public comments which she posted on the Internet, I tried to answer several of her accusations and explain some things. It was pointless. I even attempted to interject a little humor into the situation. That didn’t work either. All that I wrote in response to her accusations simply generated a dog pile of insults, name-calling, and personal attacks from Mrs. Tanzer and her supporters. When I presented by revised report on the Glenwood Springs Fire Station 3 at the July 18th Board meeting, I knew, realistically, it didn’t have much of a chance of ever even being considered, but I wanted the taxpayers to at least know that there might be another way to get the job done for approximately half the cost of the LEA design. As part of my report, I needed to include some indication of what the Glenwood Springs Fire Station would cost to build here in Sedona. I asked two friends, both of whom are long-time, experienced contractors to give me some numbers. Their estimates were incorporated in my report to the Board on July 18th. Let’s walk through the process step by step of how our Midway/Chapel Station 6, now, is going to be designed and built. First, the Board decides what it wants to build and votes. That was done on July 18th when the Board voted to accept the
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LEA Architects design. That completely ended the decision making process. It’s over and done. Now, a whole new process begins completely separate from the previous one when a project is put out for competitive bidding. Normally, this is done by a Request for Quotation or a Request for Proposal, and now and only now, do interested contractors have an opportunity to submit their bids. If at this point, the contractor decides to submit a bid and I have any connection with that individual or company whatsoever, I have to recuse myself because of a potential conflict of interest. The same rule applies to all Board Members sitting up here before you. That’s it. And, finally, let’s consider Mrs. Tanzer’s accusation that somehow I tried to intentionally conceal my association or relationship with one of the contractors who I asked to give a cost estimate. Mrs. Tanzer is an Internet-savvy person. She of all people knows that it is absolutely impossible to conceal any of this information from public view. Anyone with a computer can go to the Arizona Corporation Commission website and with a few mouse clicks, find out everything they want to know. And, again, these were only cost estimates and no one including myself could possibly profit one dime from them. All I was looking for were some expert opinions or my report.
D. Item from Board Member Diane Schoen:
1. Discussion/Possible Action: SFD Board Policy #2011-01, “Principles of Sound Financial Management: Purchasing”; Check-Signing Responsibilities.
Mrs. Schoen asked management to review the current check signing responsibilities; she said no action is required, but wants management to bring back recommendations, and feels there must be a way to change the requirements so that Board Members do not have to sign all checks down to $5 or less.
Chief Kazian replied this Policy has changed in the past and management can review the requirements, but pointed out he is fine with whatever requirements the Board feels comfortable approving. He also feels the signing authorities should mirror each other in purchase orders, as well as check signing. Mrs. Schoen said Board Members are being asked to sign large numbers of checks that are very small in dollar amounts, and although she has no problem coming in to sign checks, wants to show more trust in management, while at the same time, making sure it is handled appropriately and efficiently.
Chief Kazian said staff could provide past history of the check signing requirements, as well as recommendations for the Board to consider amending the Policy. Mr. Montgomery asked the Chief to bring back a recommendation.
Mr. Hazime asked Chief Kazian to take into consideration the former Policy compared to what is being used today. Chief Kazian said one issue he feels should be addressed is the difference of a purchase order dollar amount, meaning aggregate of multiple pieces versus a single item, for example, a purchase order of $12,000 which includes three items for $4,000; the single item of $4,000 would not have needed Board authority to approve. Mr. Whittington stated that is a policy decision and the Board has overall fiduciary responsibility; he recommended consulting our auditor for best practice, as he was recently involved with an employer that had an employee writing checks to themselves under the authorized dollar limit; this was no fault of management, but was not discovered because no one was checking; he said that problem could have been avoided if a numeric check register was provided as part of the monthly financial report to the Board. Mr. Montgomery asked Chief Kazian to bring back staff recommendations at next month’s meeting.
E. Item from Board Chairman Ty Montgomery:
1. Monthly Update: Fees from April 2011 to Current for Legal Services Provided to SFD.
Chief Kazian distributed the revised spreadsheet correcting a typographical error and informed them the total legal fees for July were $5,216.50. He said those were from Mr. Whittington for on-going projects, but the goal is to lower those monthly amounts. Mr. Montgomery commented it is much lower than it has been in some of the previous months and wants to get those fees into the $3,000 a month range, but Mr. Whittington must have time to resolve some of the issues he inherited. He stated Mr. Whittington’s legal bills for May, June, and July total about $12,000 which averages to $4,000 a month. Chief Kazian said staff is working on many necessary projects with Mr. Whittington, but is trying to efficiently manage more internally. Mrs. Schoen also pointed out some of the legal work is required to handle the Open Meeting Law violations with the Attorney General.
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2. Update: Arizona Attorney General’s Response to Open Meeting Law Complaints by David Blauert and Phyllis Erick regarding Information Release to the Media.
Mr. Montgomery said at the last meeting, an accusation was made against the Board, with him being specifically singled out, that an Open Meeting Law violation complaint was filed by former-Board Members David Blauert and Phyllis Erick; he said a finding from the Attorney General has been provided to the Board finding the OML violation complaints were fully unsubstantiated. Mr. Montgomery said he believes in transparency and in this case, there was no substantiation to the accusations.
VIII. FIRE MARSHAL’S SAFETY MESSAGE.
Fire Marshal Gary Johnson said when he went home last night, his wife told him she got a phone call from “Microsoft” telling her their computer had a problem and they could fix it if she logged in. He then found out others have received similar phone calls, and it appears our area is being targeted for this scam; he reminded all to be very cautious when you receive these calls and to ask intelligent questions or hang up.
The meeting adjourned at 7:25 PM. Ty Montgomery, Chairman of the Board