A. On a public majority vote of the members constituting a quorum, a public body may hold an executive session but only for the following purposes:
1. Discussion or consideration of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of a public officer, appointee or employee of any public body, except that, with the exception of salary discussions, an officer, appointee or employee may demand that the discussion or consideration occur at a public meeting. The public body shall provide the officer, appointee or employee with written notice of the executive session as is appropriate but not less than twenty-four hours for the officer, appointee or employee to determine whether the discussion or consideration should occur at a public meeting.
2. Discussion or consideration of records exempt by law from public inspection, including the receipt and discussion of information or testimony that is specifically required to be maintained as confidential by state or federal law.
3. Discussion or consultation for legal advice with the attorney or attorneys of the public body.
4. 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.
5. Discussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations with employee organizations regarding the salaries, salary schedules or compensation paid in the form of fringe benefits of employees of the public body.
6. Discussion, consultation or consideration for international and interstate negotiations or for negotiations by a city or town, or its designated representatives, with members of a tribal council, or its designated representatives, of an Indian reservation located within or adjacent to the city or town.
7. 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.
8. Discussion or consideration of matters relating to school safety operations or school safety plans or programs.
9. Discussions or consultations with designated representatives of the public body in order to discuss security plans, procedures, assessments, measures or systems relating to, or having an impact on, the security or safety of buildings, facilities, operations, critical infrastructure information and information technology maintained by the public body. Records, documentation, notes, or other materials made by, or provided to, the representatives pursuant to this paragraph are confidential and exempt from public disclosure under this chapter and title 39, chapter 1.
B. Minutes of and discussions made at executive sessions shall be kept confidential except from:
1. Members of the public body that met in executive session.
2. Officers, appointees or employees who were the subject of discussion or consideration pursuant to subsection A, paragraph 1 of this section.
3. The auditor general on a request made in connection with an audit authorized as provided by law.
4. A county attorney or the attorney general when investigating alleged violations of this article.
C. The public body shall instruct persons who are present at the executive session regarding the confidentiality requirements of this article.
D. Legal action involving a final vote or decision shall not be taken at an executive session, except that the public body may instruct its attorneys or representatives as provided in subsection A, paragraphs 4, 5 and 7 of this section. A public vote shall be taken before any legal action binds the public body.
E. Except as provided in section 38-431.02, subsections I and J, a public body shall not discuss any matter in an executive session that is not described in the notice of the executive session.
F. Disclosure of executive session information pursuant to this section or section 38-431.06 does not constitute a waiver of any privilege, including the attorney-client privilege. Any person receiving executive session information pursuant to this section or section 38-431.06 shall not disclose that information except to the attorney general or county attorney, by agreement with the public body or to a court in camera for purposes of enforcing this article. Any court that reviews executive session information shall take appropriate action to protect privileged information.
G. For the purposes of this section:
1. "Critical infrastructure" has the same meaning prescribed in section 41-1801.
2. "Information technology" has the same meaning prescribed in section 18-101.
Notes of Decisions
Pima County v. Heinfeld (1982)
ariz · cites it 25×
“Under A.R.S. § 38-431.03, however, no final decision on any matter, including those numbered 1-14 in the Institute’s guidelines, may be made at an executive session.”
City of Prescott v. Town of Chino Valley (1990)
ariz · cites it 15×
“” Like the court of appeals in Valencia , we believe that § 38-431.03 would be an absurdity if we held that consultations between a public body and its attorney constitute “legal action involving a final vote or decision.”
Johnson v. Tempe Elementary School District No. 3 Governing Board (2000)
arizctapp · cites it 15×
“03(A)(3)(4) permits board members privately to discuss or consult with their attorneys concerning legal advice or pending litigation, section 38-431.03(0) prohibits holding such executive sessions for taking any legal action involving a final vote or decision.”
State Ex Rel. Thomas v. Schneider (2006)
arizctapp · cites it 6×
“The statutes governing executive sessions clearly specify that no disclosure of information that occurs at an executive session constitutes “a waiver of any privilege, including the attorney-client privilege.”
Arizona Board of Regents v. Phoenix Newspapers, Inc. (1991)
ariz · cites it 4×
“More pointedly, the Arizona Legislature has exercised the same discretion in line drawing under the Public Records Law and, in a number of statutes, has adopted exemptions or exceptions.”
Shelby School v. Arizona State Board of Education (1998)
arizctapp · cites it 6×
“A.R.S. § 38-431.03(A). Two of those purposes are “[discussion or consideration of records exempt by law from public inspection” and “[discussion or consultation for legal advice with the attorney or attorneys of the public body.”
McLeod v. Chilton (1981)
arizctapp · cites it 6×
“Plaintiff had requested, prior to the meeting and in writing, pursuant to A.R.S. § 38-431.03, that all discussion concerning his employment be held in open session.”
Gipson v. Bean (1987)
arizctapp · cites it 11×
“The clerk produced agendas for two meetings on September 4 and 17, 1984, but refused to testify about those meetings on the ground that they were executive sessions and therefore “confidential” under A.R.S. § 38-431.03. Following the trial court’s refusal to compel the clerk to…”
Cooper v. ARIZONA WESTERN COLLEGE, ETC. (1980)
arizctapp · cites it 16×
“Appellants also argue that A.R.S. § 38-431.03 does not preclude taking final action in executive session concerning an employment matter so long as the executive session is not held for the purpose of taking any final action or making any final decision.”
Hokanson v. HIGH SCH. DIST. NO. EIGHT (8) OF PIMA (1978)
arizctapp · cites it 6×
“A.R.S. § 38-431.03 *268 is clearly intended to establish an equilibrium between the public’s desire for access and the governmental agency’s need to act in private, short of reaching “a collective decision, commitment or promise.”
Valencia v. Cota (1980)
arizctapp · cites it 8×
“In regard to “executive sessions”, A.R.S. § 38-431.03 provides in part: A. This article shall not be construed to prevent governing bodies, upon majority vote of the members constituting a quorum, from holding executive sessions for only the following purposes: 1.”
Cooper v. Arizona Western College District Governing Board (1980)
arizctapp · cites it 12×
“Appellants also argue that A.R.S. § 38-431.03 does not preclude taking final action in executive session concerning an employment matter so long as the executive session is not held for the purpose of taking any final action or making any final decision.”
— Ariz. Rev. Stat. § 38-431.03(0) — 2 cases
Valencia v. Cota (1980)
arizctapp
“In regard to “executive sessions”, A.R.S. § 38-431.03 provides in part: A. This article shall not be construed to prevent governing bodies, upon majority vote of the members constituting a quorum, from holding executive sessions for only the following purposes: 1.”
Johnson v. Tempe Elementary School District No. 3 Governing Board (2000)
arizctapp
“03(A)(3)(4) permits board members privately to discuss or consult with their attorneys concerning legal advice or pending litigation, section 38-431.03(0) prohibits holding such executive sessions for taking any legal action involving a final vote or decision.”
— Ariz. Rev. Stat. § 38-431.03(A) — 9 cases
City of Prescott v. Town of Chino Valley (1990)
ariz
“” Like the court of appeals in Valencia , we believe that § 38-431.03 would be an absurdity if we held that consultations between a public body and its attorney constitute “legal action involving a final vote or decision.”
Shelby School v. Arizona State Board of Education (1998)
arizctapp
“A.R.S. § 38-431.03(A). Two of those purposes are “[discussion or consideration of records exempt by law from public inspection” and “[discussion or consultation for legal advice with the attorney or attorneys of the public body.”
Johnson v. Tempe Elementary School District No. 3 Governing Board (2000)
arizctapp
“03(A)(3)(4) permits board members privately to discuss or consult with their attorneys concerning legal advice or pending litigation, section 38-431.03(0) prohibits holding such executive sessions for taking any legal action involving a final vote or decision.”
— Ariz. Rev. Stat. § 38-431.03(A)(1) — 8 cases
— Ariz. Rev. Stat. § 38-431.03(A)(2) — 1 case
Shelby School v. Arizona State Board of Education (1998)
arizctapp
“A.R.S. § 38-431.03(A). Two of those purposes are “[discussion or consideration of records exempt by law from public inspection” and “[discussion or consultation for legal advice with the attorney or attorneys of the public body.”
— Ariz. Rev. Stat. § 38-431.03(A)(3) — 9 cases
City of Prescott v. Town of Chino Valley (1990)
ariz
“” Like the court of appeals in Valencia , we believe that § 38-431.03 would be an absurdity if we held that consultations between a public body and its attorney constitute “legal action involving a final vote or decision.”
Johnson v. Tempe Elementary School District No. 3 Governing Board (2000)
arizctapp
“03(A)(3)(4) permits board members privately to discuss or consult with their attorneys concerning legal advice or pending litigation, section 38-431.03(0) prohibits holding such executive sessions for taking any legal action involving a final vote or decision.”
Gipson v. Bean (1987)
arizctapp
“The clerk produced agendas for two meetings on September 4 and 17, 1984, but refused to testify about those meetings on the ground that they were executive sessions and therefore “confidential” under A.R.S. § 38-431.03. Following the trial court’s refusal to compel the clerk to…”
— Ariz. Rev. Stat. § 38-431.03(A)(3)(4) — 1 case
Johnson v. Tempe Elementary School District No. 3 Governing Board (2000)
arizctapp
“03(A)(3)(4) permits board members privately to discuss or consult with their attorneys concerning legal advice or pending litigation, section 38-431.03(0) prohibits holding such executive sessions for taking any legal action involving a final vote or decision.”
— Ariz. Rev. Stat. § 38-431.03(A)(4) — 9 cases
Johnson v. Tempe Elementary School District No. 3 Governing Board (2000)
arizctapp
“03(A)(3)(4) permits board members privately to discuss or consult with their attorneys concerning legal advice or pending litigation, section 38-431.03(0) prohibits holding such executive sessions for taking any legal action involving a final vote or decision.”
City of Prescott v. Town of Chino Valley (1990)
ariz
“” Like the court of appeals in Valencia , we believe that § 38-431.03 would be an absurdity if we held that consultations between a public body and its attorney constitute “legal action involving a final vote or decision.”
— Ariz. Rev. Stat. § 38-431.03(A)(5) — 3 cases
— Ariz. Rev. Stat. § 38-431.03(A)(7) — 3 cases
— Ariz. Rev. Stat. § 38-431.03(A)(l) — 1 case
Valencia v. Cota (1980)
arizctapp
“In regard to “executive sessions”, A.R.S. § 38-431.03 provides in part: A. This article shall not be construed to prevent governing bodies, upon majority vote of the members constituting a quorum, from holding executive sessions for only the following purposes: 1.”
— Ariz. Rev. Stat. § 38-431.03(B) — 5 cases
Pima County v. Heinfeld (1982)
ariz
“Under A.R.S. § 38-431.03, however, no final decision on any matter, including those numbered 1-14 in the Institute’s guidelines, may be made at an executive session.”
Hokanson v. HIGH SCH. DIST. NO. EIGHT (8) OF PIMA (1978)
arizctapp
“A.R.S. § 38-431.03 *268 is clearly intended to establish an equilibrium between the public’s desire for access and the governmental agency’s need to act in private, short of reaching “a collective decision, commitment or promise.”
— Ariz. Rev. Stat. § 38-431.03(C) — 1 case
Pima County v. Heinfeld (1982)
ariz
“Under A.R.S. § 38-431.03, however, no final decision on any matter, including those numbered 1-14 in the Institute’s guidelines, may be made at an executive session.”
— Ariz. Rev. Stat. § 38-431.03(D) — 8 cases
City of Prescott v. Town of Chino Valley (1990)
ariz
“” Like the court of appeals in Valencia , we believe that § 38-431.03 would be an absurdity if we held that consultations between a public body and its attorney constitute “legal action involving a final vote or decision.”
Johnson v. Tempe Elementary School District No. 3 Governing Board (2000)
arizctapp
“03(A)(3)(4) permits board members privately to discuss or consult with their attorneys concerning legal advice or pending litigation, section 38-431.03(0) prohibits holding such executive sessions for taking any legal action involving a final vote or decision.”
Shelby School v. Arizona State Board of Education (1998)
arizctapp
“A.R.S. § 38-431.03(A). Two of those purposes are “[discussion or consideration of records exempt by law from public inspection” and “[discussion or consultation for legal advice with the attorney or attorneys of the public body.”
— Ariz. Rev. Stat. § 38-431.03(E) — 1 case
— Ariz. Rev. Stat. § 38-431.03(F) — 1 case
State Ex Rel. Thomas v. Schneider (2006)
arizctapp
“The statutes governing executive sessions clearly specify that no disclosure of information that occurs at an executive session constitutes “a waiver of any privilege, including the attorney-client privilege.”
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