Councilman Pete Furman, left, proposed that the city council’s Sept. 12 meeting to discuss the hiring process for the new city manager, who will be replacing Karen Osburn, right, be conducted in public as much as possible. His colleagues did not agree.
Prior to the Sedona City Council’s retirement into executive session on Tuesday, Sept. 12, to discuss the hiring process for the new city manager, Councilman Pete Furman proposed that the council should conduct the discussion in public to the greatest extent possible.
Council rejected his proposal by a 5-1 vote. Councilwoman Jessica Williamson was absent.
Sedona City Manager Karen Osburn is leaving her post in the spring but has not yet announced her last day.
“We all want to honor our obligations under the open meeting law,” Furman told the council. “Nothing in the law says that we have to convene behind closed doors, even for authorized topics, unless the law specifies that we must. I refer to [Arizona Revised Statute] §38-431.09, [which] says that we should construe executive session decisions, quote — quoting from the statute — in favor of opening public meetings.
“There’s also an attorney general opinion I96-012 that states, ‘The open meeting law prohibits public bodies from conducting in executive sessions lengthy information-gathering meetings that explore the operation of public programs’ and recommends a bifurcated process that should be both open and closed,” Furman continued. “Further, the Arizona open meeting ombudsman tells us that, ‘The public body must weigh the legislative policy favoring public disclosure and the legitimate confidentiality concerns underlying the executive session provisions’ … Selection of a search firm, meeting the recruiters, discussing the qualifications, talking about process steps, all of which I anticipate we’re going to talk about today — in my opinion are best done in public. Perhaps today we will encounter a legitimate confidentiality concern, and if we do, then I would support moving at that point into closed session.
“I think the city manager is one of the most important topics our constituents entrust to city council,” Furman summed up. “I urge us to lean toward open government and let our community be as informed as possible … We as a council need to carefully consider what our community needs, what our city staff needs and what council needs with a new manager. It’s an awesome responsibility and it’s best done by informing the public.”
Furman’s fellow council members disagreed.
“How do you think there is an advantage to doing this conversation as an open meeting discussion as opposed to an executive function?” Councilwoman Melissa Dunn asked. “Do you believe the public is never going to hear the end result? Do you believe the public needs to have the ability to weigh in and tell us what a city manager should be when they’re not qualified to do so? What is the advantage in your opinion?”
“First is my general orientation toward open government,” Furman replied. “I believe open government is good government. I believe that informing your constituents of all the issues in the deliberations, so they can see what we struggle with and what we don’t, what makes sense and what doesn’t, and in many — all — city manager hiring processes that I’ve been involved in in the past, there is definitely a role for the public, whether they’re qualified to make an opinion or not. It’s important for them that we bring them along on this journey, which is, as I said, the most significant decision that we’re going to make as a council.”
Dunn did not respond to a request to clarify how she differentiates between the public’s ability to vote for City Council and the public’s lack of ability to be involved in hiring a city manager.
“There’s a real risk of us having some discussion in public that will drift over into stuff that needs to be protected,” Councilwoman Kathy Kinsella said. She noted council may reference other city managers or city staff by name, requiring closed-door discussions of individual personnel. “If we don’t do this in executive session, I think we run a risk of going into executive session, coming out, going back in, coming out … the most really open way we can have the conversation and not worry about that is by staying in executive session.”
“Doing our business in public is not easy,” Furman said. “It’s difficult, it’s lengthy, it’s messy, and there will be that risk. But I say the risk of doing it all in closed session is that we’re actually violating the law.”
“You could just continue to do all of it in open session if you wanted to,” City Attorney Kurt Christianson said. “While you may do this in open session, the law specifically allows council to go into executive session to consider the employment, appointment and assignment of a city manager.”
“I don’t agree with your interpretation,” Vice Mayor Holli Ploog said to Furman. “This is a personnel matter. I think it’s clear personnel matters have to be discussed in executive session … I don’t want to run the possibility of violating a privacy issue for someone by making a statement because I don’t know if I’m in executive session or open session.”
“What we’re going to be talking about is potentially compensation, and that is something that I think has to happen in a closed session,” Kinsella added.
“I found all of what you said to be offensive,” Mayor Scott Jablow told Furman. “You’re going against the city attorney’s opinion … I’ve done this before. I don’t know what you’ve done. You had a strong mayor back in California? Here, we do managers and executive staff in executive session … If all of that information was out to the public, it could tip the scales to somebody who we may not want. We might end up hiring them and it turns out not to be the person we want. I want to make sure we are all in alignment for the person that we want, and that should be done in executive session.”
“What we’re going to decide today, I am strongly against doing out in public,” Jablow added.
“Setting the [salary] range in my opinion is not closed session,” Furman said. “I think our constituents deserve to hear our thoughts of what we’re looking for.”
Jablow said that making the salary range for the position public in advance might give some candidates “an unfair advantage” in negotiating.
“I think just because we’re human we run the risk of violating someone’s privacy,” Dunn said. “The movement between will stop and stifle the flow of conversation … I think it puts us at risk for saying things on the record that really should have been held off the record.”
Councilman Brian Fultz, who voted with the majority but did not comment during the meeting, later said that “based on the legal assessment provided by the city attorney, I voted in accordance with his counsel.”