Confidential negotiations and the use of executive session

Published on March 05, 2021

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Confidential negotiations and the use of executive session

At the March 3, 2021 Town Council Meeting, a resident requested clarification regarding why certain information pertaining to the current Town negotiations with representatives of Romspen are allowed to remain confidential. In response to that question, the Town’s attorneys have provided the following legal summary of Arizona Revised Statues (A.R.S.) that specify the parameters regarding the use of Executive Session

Arizona’s public meeting laws allow exceptions to public meetings for executive sessions. A.R.S. 38-431.03 (A). The Rompsen negotiations are subject to three executive session purposes:

  • Legal advice to the public body (3)
  • Discussion or consultation with the attorneys of the public body in order to consider its position and instruct its attorneys regarding the public body's position regarding contracts that are the subject of negotiations, in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation (4)
  • Discussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations for the purchase, sale or lease of real property (7).

A.R.S. 38-431.03(A)(4) permits a public body (Town Council) to give its attorneys instructions on how they should proceed in contract negotiations, pending or contemplated litigation involving the public body, and settlement discussions. In these limited situations, the public body must be able to discuss and arrive at some consensus on its position before it instructs its legal counsel. Best practices are to ratify in public session the authority to proceed as discussed in executive session.

A.R.S. 38-432.03(A)(7) permits the public body to instruct its representatives regarding the purchase, sale or lease of real property. For example, the public body can authorize its representative to negotiate up to a certain amount. Of course, any final contract must be approved by the public body in a public meeting.

Members of a public body and others attending the executive session must ensure that the information remains confidential. A.R.S. 38-431.03(C).

The providing of public information regarding obtaining an appraisal or the amount of any appraisal could compromise the Town’s ability to effectively proceed with regard to any of the above referenced matters.

No legal action can be taken in the executive session. A.R.S. 38-431.03(D). Accordingly, any decision or legal action with Rompsen will occur in a properly noticed open meeting, at the appropriate time.