McCown v. Patagonia Union High School District

129 Ariz. 127 (1981) 629 P.2d 94

Juliet McCOWN and Robert Westman, Petitioners/Appellants,
v.
PATAGONIA UNION HIGH SCHOOL DISTRICT; Patagonia Union High School District Board of Education; Ray Kunde, Doris Seibold, Nick Laguna, Jean Smith, John Urias, in their representative capacity; and Joseph M. Landavazo, Superintendent, Respondents/Appellees.

No. 2 CA-CIV 3745.

Court of Appeals of Arizona, Division 2.

March 13, 1981. Rehearing Denied April 29, 1981. Review Denied May 27, 1981.

Gonzales & Villarreal by Richard J. Gonzales, Tucson, for petitioners/appellants.

Richard N. Groves, Santa Cruz County Atty. by William Rothstein and Thomas C. Reed, Nogales, for respondents/appellees.

OPINION

HOWARD, Judge.

This is an appeal from the trial court's order denying relief in a special action. The issue is whether appellants were provided with sufficient notice of an executive session of the school board held pursuant to A.R.S. Sec. 38-431.02(A)(2) of our Open Meeting Law. We shall consider the facts in the light most favorable to upholding the trial court.

Appellants were certified probationary teachers who had been employed by the school district for three years. A total of eighteen teachers was employed by the district. The notice at issue here concerned an executive session which was to be held in conjunction with the regular meeting of the school board on April 9, 1980. The notice, posted in various places, stated that the renewal of contracts of certified personnel would be discussed at the executive session. Appellants saw the notice but did not believe it pertained to them. At the executive session the superintendent of the district recommended that appellants' contracts not be renewed for the school year 1980-81. Although the members of the board knew prior to the executive session that renewal or non-renewal of teaching contracts would be discussed, they did not know that the superintendent was going to recommend that appellants' contracts not be renewed. When the executive session ended, the school board reconvened for its regular session and in open session voted not to renew appellants' contracts.

Appellants contend they were not given reasonable notice of the executive session. Relying principally on the case of Rice v. Union County Regional High School Board of Education, 155 N.J. Super. 64, 382 A.2d 386 (1977), they argue that they were entitled to personal notice that the renewal of their contracts was going to be discussed at the executive session. We do not agree.

Members of the school board may discuss or consider employment matters in a closed executive session. A.R.S. Sec. 38-431.03(A); Hokanson v. High School District No. Eight (8) of Pima County, 121 Ariz. 264, 589 P.2d 907 (App. 1978). An employee may, however, demand that discussion concerning him or her occur at a public meeting, A.R.S. Sec. 38-431.03(A)(1), and such employee is therefore entitled to reasonable notice of the fact that such discussions may take place so that he or she may opt for a public meeting.

The notice here informed all teachers, including appellants who were certified teachers as defined in A.R.S. Sec. 15-251(A)(1), that their contracts would be discussed and we believe that that constituted reasonable notice. Nothing prevented appellants from informing the board, prior to the executive session, that if their contracts were going to be discussed, they desired that the discussion be held in an open meeting. The Rice case is factually distinguishable. There, the school board went into executive session, telling those present that it was going to discuss personnel matters. Everyone knew that the topic for discussion was the reduction of personnel so that a budget which would be acceptable to the voters could be approved. At least one week prior to the executive session, the board members had a list of 17 teachers who were going to be dismissed. The court held that these members were entitled to personal notice.

The differences between Rice and the instant case are evident. The board members in Rice knew well in advance the names of those teachers who were going to be dismissed. The same was not true here. More important, while the teachers in Rice knew that the continued employment of personnel was going to be discussed, they had no idea which employees would be the subject of discussion. That was not the case here where the group involved was not the broad, undefined group in Rice, but rather a very narrow one, i.e. all certified teachers who happened to be in the number of 18. The notice given was reasonable.

Affirmed.

BIRDSALL, J., and FAHRINGER, Superior Court Judge, concur.

NOTE: Chief Judge JAMES D. HATHAWAY having recused himself in this matter, Judge PHILIP FAHRINGER was called to sit in his stead and participate in the determination of this decision.