By Tommy Acosta — An investigation by a Sedona citizen has led to the possibility members of the Sedona City Council could have violated the Arizona Open Meetings Law in an effort to populate the election ballot with Pro-Proposition 400 statements prior to the election.
Sedona resident Terry Nash has sent a complaint to the Yavapai County Attorney and to the Arizona Attorney General charging that an email exchange between council members organizing a letter writing campaign to the city to be included in the ballot offering arguments that voters should vote yes on a proposition to end the election of mayors and have them appointed instead, constitutes a breach of the open meetings law, where a quorum of councilors cannot meet or discuss council actions without public notice.
Mr. Nash names Councilors Pud Colquitt, Marc DiNunzio, Nancy Scagnelli and Jerry Frey.
Sedona City Attorney Mike Goimarac disputes the allegation on the grounds the emails were not written to affect pending council decisions.
The following is a copy of Mr. Nash’s letter of complaint and the emails by specific council members on Prop 400.
Following that is Sedona City Attorney Mike Goimarac’s response to Mr. Nash’s charges
Following his response are the emails in question.
…………………………………………………………………………………………………………………………………….
Ms Sheila Polk P.O. Box 4227
Yavapai County Attorney Sedona, Arizona 86340
Suite 106 928 282-8984
2830 North Commonwealth Drive maxventure@aol.com
Camp Verde, Arizona, 86332
Attorney General Terry Goddard
Office of the Attorney General
1275 West Washington Street
Phoenix, Arizona 85007
Subject: Potential Open Meeting Law Violation by City of Sedona
Councilors, Ms. Nancy Scagnelli; Mr. Mark DiNunzio;
Mr. Jerry Frey; Ms. Ruth (Pud) Colquitt
Dear Madam and Sir:
This letter will serve to respectfully request that your offices investigate a
potential Open Meeting Law violation by Sedona City Council Members.
I have enclosed a series of three e-mail communications between City
of Sedona Councilors Ms. Ruth (Pud) Colquitt, Ms. Nancy Scagnelli,
Mr. Jerry Frey, and Mr. Mark Denunzio wherein they discuss proposed
commentary in support of City Proposition 400 to be included in the Voter
Information Pamphlet – Proposition 400 is a ballot measure to determine
whether the Mayor should be selected by the appointment of City Council
or through a public election which is now the method of selection.
This measure was placed on the March 9 election ballot by Sedona City Council.
In an e-mail dated December 7, 2009, 9:26.29 A.M., Subject: Proposition
Language for council appointed Mayor on March ballot, Council Member
Ms. Ruth Colquitt addresses Councilors Ms Scagnelli, Mr Denunzio,
Mr. Frey(info@ranchosedona.com), and several other Sedona citizens stating
as follows:
“A couple of attachments with ideas and the “Call for Arguments”
and direction. I need to hear from you if you are going to submit
arguments. Please note the arguments are due by 5 pm on
Wednesday the 9th and must have a notarized signature which the
Clerk can do at the office. This means you have to take them in or
else get it notarized elsewhere and I could pick them up and deliver
to the Clerk’s office. I especially hope to hear from past Mayors,
Vice Mayors and council members.
Thanks, Pud.”
In a second e-mail only a few minutes later dated December 7, 2009
at 9:31 A.M., Subject: FW: Proposition language for council appointed Mayor
on March ballot, Ms. Ruth Colquitt addresses Ms. Scagnelli, Mr. Frey and
Mr. Denunzio and several other Sedona citizens stating
“A follow-up —–I am expecting more ideas and will forward them
to you. Please feel free to share your suggestions.
Pud.”
Attachments were also included with these e-mails entitled “City
of Sedona Call for Arguments” and “Arguments for returning to a Council
appointed Mayor” which are attached to this letter.
In a third e-mail dated December 7, 2009 at 6:53 P.M. Subject:
Proposition language for council appointed Mayor on March ballot,
Councilor Mr. Mark Denunzio addresses Councilors Ms. Ruth Colquitt,
Ms. Scagnelli, Mr. Frey and several other Sedona citizens stating as follows:
“Pud, (Ruth Colquitt) here are my initial thoughts….”
Mr. Denunzio goes on to write out several thoughts on the subject
matter and then concludes as follows:
“what thinks you, pud?
mark d.’
Subsequent to these e-mails the Publicity Pamphlet for the City
of Sedona Primary and Special Mail Ballot Election for March 9, 2010
election contained within pages 6 through 8 ARGUMENTS “FOR”
PROPOSITION 400” arguments authored by Councilors Colquitt and
Denunzio, citizens Mr. Marc Sterling, Mr. Alan Everett, Ms. Judith Keane,
and Mr. George Tice, all of whom were original recipients of the above e-mails.
I became aware of these e-mails through stories which were
circulated to me.
I then filed a Freedom of Information Act Request in
e-mail (copy attached) for these e-mails. I also asked for e-mails of these
individuals for a periods before and after the date of December 7 which
at this writing I have not received.
These Councilors have long been suspected of this type of unlawful activity to predetermine the outcome
of City Council business but were it not for the inadvertent copy which
was sent to Assistant City Manager, Ms. Alison Zelms, these e-mails
would have remained secret.
I have not filed a citizen complaint with City Attorney Mr.
Goimarac because I know that he is aware of these e-mails, since as
stated earlier Ms. Alison Zelms, Assistant City Manager, was mistakenly
copied on one of the e-mails and quickly brought it to his attention in early
December. Since in light of the fact that he neither instituted an investigation
nor brought the matter before a Council Meeting it would appear he does
not either understand the gravity of these Councilors’ actions in forming
a quorum in an attempt to manipulate the outcome of a city election, or he
has chosen to ignore it for whatever undisclosed reason.
I find the conduct of these Councilors to be very disturbing
to the process of insuring free elections. Indeed they did not use
City E-Mail addresses but rather, personal e-mails in an attempt to
hide their activities. Just as disturbing to me is the conduct of City
Attorney Mr. Goimarac who chose to do little or nothing about it.
I urge you to move quickly to investigate this matter,
especially in light of the City of Sedona Election which has a mail-in
ballot deadline of March 9, 2010.
I thank you in advance for your prompt attention to this
serious matter.
Sincerely,
E signed TERRY NASH
Terry Nash
Enclosures:
Mr. Goimarac’s response:
Mr. Acosta: In responding to your request that I comment on Mr. Nash's letter to the Attorney General, let me summarize my response to the e-mails that are referred to by Mr. Nash. Alison Zelms made me aware of these e-mails in early December. I did review the e-mails and inquired into the circumstances surrounding them. I also communicated with the entire City Council regarding the Open-Meeting law and the limitations that law imposes on e-mail communications. A number of weeks ago, I also responded to public records requests from other citizens and have provided the e-mails in question. From my review of the matter, it appears that three other current members including Councilors Frey, D'Nunzio and Scagnelli were among 17 persons that were copied on an e-mail sent by Councilor Colquitt on December 7, 2009 who was seeking suggestions for comments to be submitted in the election publicity pamphlet regarding the repeal of the mayoral direct election process. Councilor Frey had just been appointed to the City Council 2 or three days before this. Councilor Colquitt indicated that she had forgotten about this recent appointment when she sent the e-mail, and that it wasn't her intention to communicate with three other City Councilors through e-mail. Let me also note that Council members can submit comments as individuals to ballot measures without receiving authorization from the City or entire City Council. Attached is an Attorney General Opinion concerning the use of e-mail by members of a public body. As this opinion indicates, e-mail communications between a quorum of members of a public body "concerning a matter that may foreseeably come before the public body for action" can possibly constitute an open-meeting violation. In this case, the communication concerned formulation of comments for submission on a ballot question. Such an issue could never foreseeably come before the City Council, because the City cannot take a position on election issues. I welcome any review that the Attorney General's Office may wish to conduct concerning this issue. Sincerely, Michael Goimarac Sedona City Attorney
The following emails were gathered through a Freedom of Information Request
Councilors’ e-mails
City of Sedona Voter Pamphlet
……………………………………………………………………………………………………………….
Alison Zelms – FW: Proposition language for council appointed Mayor on
March ballot
A follow up—–I am expecting more ideas and will forward them to you. Please feel free to share
your suggestions.
Pud
From: ruthcolquitt@hotmail.com
To: aeverett01@msn.com; ajmac@sedona.net; get@commspeed.net; info@ranchosedona.com;
jmkeane@commspeed.net; kbbren@hotmail.com; coltjr@yahoo.com; lindastrr@aol.com;
marc@sterlingprinciple.com; mbrown@netsedona.com; markdinunzio@mac.com;
nancyscagnelli@msn.com; rvolkman@hotmail.com
Subject: Proposition language for council appointed Mayor on March ballot
Date: Mon, 7 Dec 2009 09:26:29 -0700
A couple of attachments with ideas and the “Call for Arguments” and direction. I need to hear from
you if you are going to submit arguments. Please note the arguments are due by 5 pm on
Wednesday the 9th and must have a notarized signature which the Clerk can do at the office. This
means you have to take them in or else get it notarized elsewhere and I could pick them up and
deliver to the Clerk’s office.
I especially hope to hear from past Mayors, Vice Mayors and council members.
Thanks,
Pud
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From: Ruth Colquitt
To:
ALAN & marla EVERETT , anita macFarland , alison zelms ,
Carolyn Huggins , george tice , jerry frye , Judith Keane , KB
Bren , larry beddome , Linda & Dale Starr , linda martinez ,
marcsterling , marie brown , Mark Dinunzio , Marshall Morgaan ,
nancy scagnelli ,
Date: 12/7/2009 9:31 AM
Subject:
FW: Proposition language for council appointed Mayor on March
ballot
Attachments:
Page 1 of 1
file://C:\Documents and Settings\azelms\Local Settings\Temp\XPgrpwise\4B1CCB5CSe… 12/31/2009
City of Sedona Call for Arguments
On August 11, 2009, the City Council passed Ordinance No. 2009-09 amending the City Code to
provide, beginning in 2012, the Mayor would be selected by the council from their membership
rather than being directly elected by the voters. In order for this ordinance to become effective, it
requires voter approval and the issue will appear on the March 9, 2010 ballot. Information
regarding this issue will be included in a publicity pamphlet.
Arguments supporting or opposing rescinding the practice of having the voters elect the Mayor
or having the Mayor selected by the City Council from their membership, beginning 2012, may
be submitted to the Sedona City Clerk, City of Sedona, 102 Roadrunner Drive, Sedona, Arizona,
86336, for insertion into a publicity pamphlet. Arguments cannot exceed 300 words in length.
Individuals submitting arguments must provide their name, physical or mailing address, and a
telephone number. Only your name will be included in the publicity pamphlet. Each argument
filed shall contain the original notarized signature of each person sponsoring it.
If the argument is sponsored by an organization, it shall contain the notarized signature of two
executive officers of the organization or if sponsored by a political committee, it shall contain the
notarized signature of the committee’s chairman or treasurer.
The deadline for submission of supporting or opposing arguments is Wednesday,
December 9, 2009 at 5:00 p.m.
For more information, please contact Pat Sullivan in the City Clerk’s office at 203-5032.
Arguments for returning to a Council appointed Mayor.
1. Due to a very small candidate field for council offices the
loss of viable candidates for Council due to multiple
candidates for one office.
2. A clearer definition as to the role of the Mayor in regards to
the duties as set forth by the Rules of Procedures.
3. A better opportunity for consensus when the Council as a
whole selects the presiding officer.
4. Retains the weak Mayor/strong Council small town
government concept.
5. Retains the understanding of equality of control/power of
council members.
……………………………………………………………………………………………………………………….
Page 1 of 2 ge 1 of 2
Alison Zelms – Re: Proposition language for council appointed Mayor on March ballot
From: Mark Dinunzio
To: Ruth Colquitt
Date: 12/7/2009 6:53 PM
Subject: Re: Proposition language for council appointed Mayor on March ballot
CC:
ALAN & marla EVERETT , anita macFarland , alison zelms , Carolyn Huggins ,
george tice , jerry frye , Judith Keane , KB Bren , larry beddome , Linda & Dale Starr ,
linda martinez , marc sterling , marie brown , Marshall Morgaan , nancy scagnelli ,
Attachments:
ALAN & marla EVERETT , anita macFarland , alison zelms , Carolyn Huggins ,
george tice , jerry frye , Judith Keane , KB Bren , larry beddome , Linda & Dale Starr ,
linda martinez , marc sterling , marie brown , Marshall Morgaan , nancy scagnelli ,
pud, here are some of my initial thoughts….
problems of directly elected mayor:
City law vests power in a 7 person council
Office of mayor has limited administrative power, no power to make policy or law
mayor may not speak for city except in limited emergency situations.
direct election may confuse citizens that mayor is independent of council. mayor is not. mayor is
one of 7
differences between mayor and council appear political, or worse, personal, reflecting poorly on
city government.
direct election of mayor as separate office sets up power base for mayor separate from council.
direct election of mayor sets up campaign promises that may conflict with majority of council
office of mayor may be thought of by incumbent as separate from council. mayor should be
leader of team, not independent power.
directly elected mayor may not possess leadership skills necessary to mold council into cohesive
team.
mayor interaction with political leaders around state needs to be grounded in will of council, not
independent thoughts & action of mayor.
what thinks you, pud?
mark d.
On Dec 7, 2009, at 9:30 AM, Ruth Colquitt wrote:
A follow up—–I am expecting more ideas and will forward them to you. Please feel
free to share your suggestions.
Pud
file://C:\Documents and Settings\azelms\Local Settings\Temp\XPgrpwise\4B1D4F16Sed… 12/31/2009
Page 2 of 2 ge 2 of 2
From: ruthcolquitt@hotmail.com
To: aeverett01@msn.com; ajmac@sedona.net; get@commspeed.net; info@ranchosedo
na.com; jmkeane@commspeed.net; kbbren@hotmail.com;coltjr@yahoo.com; lindastrr
@aol.com; marc@sterlingprinciple.com; mbrown@netsedona.com; markdinunzio@mac.
com; nancyscagnelli@msn.com;rvolkman@hotmail.com
Subject: Proposition language for council appointed Mayor on March ballot
Date: Mon, 7 Dec 2009 09:26:29 -0700
A couple of attachments with ideas and the “Call for Arguments” and direction. I need
to hear from you if you are going to submit arguments. Please note the arguments
are due by 5 pm on Wednesday the 9th and must have a notarized signature which
the Clerk can do at the office. This means you have to take them in or else get it
notarized elsewhere and I could pick them up and deliver to the Clerk’s office.
I especially hope to hear from past Mayors, Vice Mayors and council members.
Thanks,
Pud
]…………………………………………………………………
Mr. Goimarac is wrong as to his last statements “Such an issue could never forseeably come before the City Council, because the City cannot take a position on election issues.”
What if Proposition 400 voting ended in a tie and what if Mayor Adams were to step down? I rest my case.
Terry Nash
Sedona AZ
QUESTION: If four councilors appear at a meeting or party without public notice where 13 other people also appear, would that be an open-meeting violation, even if they didn’t talk about a pending issue?
QUESTION: Of four councilors conduct a conference calls to plan ways to stack the deck in their favor in an upcoming public vote, would that violate open meeting laws?
QUESTION: If one councilor emails three other councilors – asking for dialogue and interaction – to achieve a predetermined public vote outcome, and offers to personally pickup and deliver their notarized arguments (marketing materials), does that constitute a discussion an possible open meeting law violation intended to directly influence something that will affect the public body for the foreseeable future? If not, how is this different from fire board members offside interviewing possible firechiefs?
QUESTIONS: If a councilor, former mayor, and recent voter to place Frey on the Council *forgets* Frey is on the Council, does that mean open meeting laws do not apply?
Goimaric may be able to nitpick the law, but Colquitt’s intention was obvious: to get the ‘voting bloc’ and former city officials to overwhelmingly speak in favor of a pet proposition overturning something the public voted on quite recently and has not grown tired of.
If he wants to split hairs and the Council lets him, then my respect for each of these person involved sinks to a new low. After all, though the matters are not equal, we all know OJ was guilty, regardless of the prowess of his legal team!
QUESTION: If four councilors appear at a meeting or party without public notice where 13 other people also appear, would that be an open-meeting violation, even if they didn’t talk about a pending issue?
QUESTION: If four councilors conduct a conference call to plan ways to stack the deck in their favor in an upcoming public vote, would that violate open meeting laws?
QUESTION: If one councilor emails three other councilors – asking for dialogue and interaction – to achieve a predetermined public vote outcome, and offers to personally pickup and deliver their notarized arguments (marketing materials), does that constitute a discussion and possible open meeting law violation intended to directly influence something that will affect the public body for the foreseeable future? If not, how is this different from fire board members offside interviewing possible firechiefs?
QUESTIONS: If a councilor, former mayor, and recent voter to place Frey on the Council *forgets* Frey is on the Council, does that mean open meeting laws do not apply?
Goimaric may be able to nitpick the law, but Colquitt’s intention was obvious: to get the ‘voting bloc’ and former city officials to overwhelmingly speak in favor of a pet proposition overturning something the public voted on quite recently and has not grown tired of.
If he wants to split hairs and the Council lets him, then my respect for each of these person involved sinks to a new low. After all, though the matters are not equal, we all know OJ was guilty, regardless of the prowess of his legal team!
Without exception I’ve always seem logic in Mike G’s legal opinions. But this one, I think he kind of ‘blew it’. A group of council members discussing an issue that (1) they introduced to change city ordinances and (2) is up for public vote? I could see Pud not remembering who is on the council and so maybe a wrist-slap. An apology and ‘I won’t do it again’ sort of thing.