Pima County v. Heinfeld

• Decision Date: 12 November 1982
• Docket Number: No. 16223-SA,16223-SA
• Citation: 134 Ariz. 133,654 P.2d 281
• Parties: PIMA COUNTY, Petitioner, v. Gary HEINFELD, an employee of the Arizona Auditor General and The Arizona Auditor General, Respondents.
• Court: Arizona Supreme Court

Page 281

654 P.2d 281

134 Ariz. 133

PIMA COUNTY, Petitioner, v. Gary HEINFELD, an employee of the Arizona Auditor General and The Arizona Auditor General, Respondents.

No. 16223-SA.

Supreme Court of Arizona,

In Banc.

Nov. 12, 1982.

Stephen D. Neely, Pima County Atty., Richard M. Rollman, Deputy County Atty., Harold L. Higgins, Jr., Chief Civil Deputy County Atty., Tucson, for petitioner.

Robert K. Corbin, Atty. Gen., Alan S. Kamin, Asst. Atty. Gen., Phoenix, for respondents.

GORDON, Vice Chief Justice:

In the course of conducting a post audit of Pima County, the Arizona Auditor General requested that the County provide minutes of executive sessions of the Pima County Board of Supervisors for use in preparing the audit report. Pima County refused to turn over the minutes believing that it was prohibited by statute from doing so. The county then brought this special action. We accepted jurisdiction pursuant to Ariz. Const. Art. 6, § 5(1) to answer the question whether Pima County may lawfully provide the Auditor General with minutes of executive sessions of the Pima County Board of Supervisors.

The resolution of this question requires that we reconcile an apparent conflict between a section of Arizona's Open Meeting Law in Title 38 of A.R.S. and a section of Title 41 of A.R.S. A.R.S. § 38-431.03(B) requires that minutes of executive sessions of a public body be kept confidential. It provides:

"Minutes of or discussions made at executive sessions shall be kept confidential except from members of the public body which met in executive session and from officers, appointees or employees who are the subject of discussion or consideration pursuant to subsection A, paragraph 1. The public body shall instruct persons who are present at the executive session regarding the confidentiality requirements of this article."

In addition to the exceptions included in § 38-431.03(B), there is an exception to § 38-431.03(B) found in A.R.S. § 38-431.07(C). It provides:

"In any action brought pursuant to this section challenging the validity of an executive session, the court may review in camera the minutes of such executive session, and if the court in its discretion determines that such minutes are relevant and that justice so demands, the court may disclose to the parties or admit in evidence part or all of such minutes."

A.R.S. § 41-1279.22(A, B), however, requires that county officials supply the Auditor General with the material needed to conduct an annual post audit. It provides in relevant part:

"A. All county, community college district and school district officers shall afford reasonable and needed facilities, and make returns and exhibits to the auditor general under oath, in the form and at the time he prescribes.

"B. Any person who knowingly fails or refuses to make the prescribed returns or exhibits or to give information as required is guilty of a class 5 felony, and any person who otherwise knowingly obstructs or misleads the auditor general in the execution of his duties as prescribed by this article is guilty of a class 1 misdemeanor."

An analysis of the language and history of the provisions indicates that notwithstanding the requirements of § 41-1279.22, § 38-431.03(B) prohibits Pima County from giving the Auditor General the minutes of executive sessions of the Pima County Board of Supervisors.

Turning first to the language of the two provisions, it is clear that the Auditor General is not specifically excepted from the confidentiality requirement of § 38-431.03(B). There are, however, some exceptions. A.R.S. § 38-431.03(B) indicates quite specifically that members of the governing body which met in executive session and officers, appointees, or employees whose job status is discussed at the session may be given the minutes. A related section of the Open Meeting Law, § 38-431.07(C), specifically authorizes an in camera review of minutes of an executive session by a superior court judge in the event of litigation concerning the validity of the session.

A well established rule of statutory construction provides that the expression of one or more items of a class indicates an intent to exclude all items of the same class which are not expressed. Southwestern Iron & Steel Industries v. State, 123 Ariz. 78, 597 P.2d 981 (1979); see National Railroad Passenger Corporation v. National Association of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974); Central Housing Investment Corp. v. Federal National Mortgage Association, 74 Ariz. 308, 248 P.2d 866 (1952). Applying this rule to the instant case, the expression of specific exceptions to the confidentiality requirement of § 38-431.03(B) for some persons implies an intent not to except other persons, including the Auditor General.

Furthermore, the provision of A.R.S. § 41-1279.22 requiring that the county "make returns and exhibits to the auditor general" is a general provision. It simply instructs the counties, in general terms, to provide the Auditor General with the information he needs to do his job. The provision of A.R.S. § 38-431.03(B) prohibiting disclosure of minutes of executive sessions, on the other hand, is a specific provision. It deals with a specific type of material and instructs in no uncertain terms that the material must, with clearly enumerated exceptions, be kept confidential.

Another well established rule of statutory construction dictates that where two statutes deal with the same subject, the more specific statute controls. Arden-Mayfair, Inc. v. State, 123 Ariz. 340, 599 P.2d 793 (1979); Peabody Coal Co. v. Navajo County, 117 Ariz. 335, 572 P.2d 797 (1977); Webb v. Dixon, 104 Ariz. 473, 455 P.2d 447 (1969). Application of this rule suggests that § 38-431.03(B) should control. It appears therefore that the language of the two statutory provisions at issue, viewed in light of established rules of statutory construction, indicates that the minutes of executive sessions may not be given to the Auditor General.

An examination of the history of these two provisions compels the same conclusion. Arizona first adopted its Open Meeting Law in 1962. The law required that all meetings of governing bodies at which legal action is taken to be open to the public. Executive sessions were excepted from this requirement subject to conditions set forth in the statute. There was nothing in this first Open Meeting Law that made the minutes of executive sessions confidential. 1962 Ariz.Sess.Laws ch. 138 (originally codified at A.R.S. §§ 38-431 to -431.06 (1962)).

In 1968 the office of Auditor General was created. The legislation creating the office gave the Auditor General the power and the duty to perform post audits of all state agencies as well as all counties. This was accomplished by passage of two separate acts. The first act, originating in the State House of Representatives, created the office of Auditor General and spelled out its powers and duties with respect to state agencies. 1968 Ariz.Sess.Laws ch. 87, §§ 1-2 (originally codified at A.R.S. §§ 41-1279 to -1279.06 (1968)). The second act, originating in the State Senate, spelled out the Auditor General's powers and duties with respect to counties. 1968 Ariz.Sess.Laws ch. 177, §§ 1-5 (originally codified at A.R.S. §§ 41-1279.21 to -1279.24 (1968)). This second act instructed county officials to give the Auditor General the materials needed to perform a post audit. It was essentially the same as current A.R.S. § 41-1279.22. See 1968 Ariz.Sess.Laws ch. 177, § 3(A, B) (originally codified at A.R.S. § 41-1279.22(A, B) (1968)).

The Open Meeting Law was amended in 1974. The amendments, for the first time, required that "[m]inutes of executive sessions shall be kept confidential except from members of the governing body which met in executive session." 1974 Ariz.Sess.Laws ch. 196, § 6(B) (originally codified at A.R.S. § 38-431.03(B) (1974)). No exception was made for the Auditor General.

In 1978 the section of Title 41 that dealt with the Auditor General's right of access to materials of state agencies, A.R.S. § 41-1279.04, and the section that dealt with the duty of county officials to provide the Auditor General with information, A.R.S. § 41-1279.22, underwent minor amendment. None of the changes gave the Auditor General the right to review minutes of executive sessions. See 1978 Ariz.Sess.Laws ch. 201, §§ 733, 735 (originally codified at A.R.S. §§ 41-1279.04, -.22 (1968)).

The section of Title 38 that dealt with confidentiality of minutes of executive sessions was amended during the same legislative session. No exception to the confidentiality requirement was made for the Auditor General. See 1978 Ariz.Sess.Laws ch. 86, § 4(B) (originally codified at A.R.S. § 38-431.03(B) (1978)).

The state Legislature amended A.R.S. § 41-1279.04 again in 1981. The 1981 amendment expanded the Auditor General's right of access to materials in connection with the duty to perform special audits of state agencies at the request of the joint legislative budget committee as set forth in A.R.S. § 41-1279.03(A)(2). The amendment allows the Auditor General to attend executive sessions of the governing body of any state agency for purposes of complying with § 41-1279.03(A)(2). 1981 Ariz.Legis.Serv. ch. 317, § 10(B) (West) (originally codified at A.R.S. § 41-1279.04(B) (1981)). There was nothing in the 1981 amendments that authorized the Auditor General to attend executive sessions of county governing bodies or to review the minutes of such sessions. A.R.S. § 41-1279.22 remained unchanged.

In the Second Legislative Session of 1982 the Legislature again amended the Open Meeting Law. The amendments made two specific exceptions to the confidentiality requirement of A.R.S. § 38-431.03(B). First, A.R.S. § 38-431.03(B) was changed to authorize disclosure of minutes of executive sessions to officers, appointees, or employees whose job status is discussed at the session. 1982...