Archive for the ‘Arizona Constitution’ Category

Captain Rick: During the September 20, 2012 Gilbert Town Council meeting I witnessed a council proclamation read in Spanish for a duration of 4 minutes, declaring Gilbert Hispanic Heritage Month. This occurred between between the council meeting quorum call and adjournment, identifying it as an official action. The proclamation was sealed with Gilbert Mayor John Lewis’s signature.  The proclamation session was lead by Councilmember Eddie Cook who stated “folks here can follow along in English and the folks at home could as well”.  There was no means provided for anyone at home to follow along in English. For the entire English-speaking audience via TV and the internet, it appeared to be a 4 minute speech in Spanish, with no understanding of what was being said. I was one of many citizens in Gilbert, Arizona that was astounded. This appeared to be a violation of Article 28 of the Arizona Constitution, the ‘English Only’ law, receiving 74% voter support as Proposition 103 in the November 2006 election. I set out on a journey to find the answer to the question … Was this a violation of Article 28 of the Arizona Constitution?
Council Inquiries, responses and thoughts
I asked Gilbert Mayor John Lewis about this council action.
Gilbert Mayor John Lewis (10/2/12): “Your attention to detail is appreciated. When this was discussed, we were told that Article 28 of the Arizona Constitution (English-only provision) applies to “official business of the Town” and speaking another language in the “Presentation” portion of the agenda was not in violation of Constitution. If you have different information, please let us know”.
My thought … I was honored with the Mayor’s reply, but it left me wondering. Yes, it does apply to ‘official business’ … but the ‘presentation portion’ was clearly in the ‘official business’ portion of the meeting. It made little sense to me. I continued my investigation.
I asked Gilbert Councilmember Eddie Cook about this action.
Gilbert Councilmember Eddie Cook (10/2/12): “I was planning on proclaiming the proclamation in English that night, but staff approached me and said they had a member from staff that would make the proclamation in Spanish. They indicated that the English version would be shown on the screen in the chamber. I’ve now asked staff to research this matter as to possible violation to the State Constitution that all business be conducted in English including the reading of proclamations. Once I receive the report, I will contact you again.”
My thought …  That sounds like a very honest answer. It impressed me as did his promise to contact me with an update:
Gilbert Councilmember Eddie Cook (10/9/12): “I did ask staff to research this issue. The Town Attorney researched the question of whether reading the Mayor’s proclamation of Hispanic Heritage Month in Spanish violated Article 28 of the Arizona Constitution. The Town Attorney indicated that Article 28 was not violated because a Mayor’s proclamation is not an “official action” as that term is defined in Article 28. The Town Attorney indicates that the Mayor’s proclamation is a unilateral proclamation of the Mayor and was not an official action of the Council. I’d be open in hearing your feedback.”
My thought … Councilmember Eddie Cook gained my respect in his replies. Concerning the Town Attorney’s research mentioned: “a mayor’s proclamation is not an ‘official action’ as defined in Article 28” and “the Mayor’s proclamation is a ‘unilateral proclamation’ and was not an official action of the Council” … I found myself in a state of dismay. This made no sense to me, based on research that I had already conducted.  It left me wondering how far off track Gilbert’s legal advise has strayed. I continued my research that was well underway.
Journey to find the truth … with extensive research and experience 
I set out on a journey to research Prop 103 and Article 28 of the Arizona Constitution. It consumed countless hours of time.  I was equipped with my 40-year engineering career experience and accomplishments of having achieved 8 United States Patents for mechanical design and the skills developed working along side of numerous patent attorneys to decipher the ever-so-slight difference between infringing on a patent or not. My research shows that Article 28 of the Arizona Constitution is clearly written and an easily understandable document in comparison to the complexity of patent documents I have critiqued.
Research of Proposition 103 … overwhelmingly approved by Arizona voters (74%) in 2006 as Arizona’s ‘English Only’ law which molded Article 28 of the Arizona Constitution
The early part of my research looked into the foundation of Prop 103. Why was it presented to Arizona voters? The best answer is well presented in the actual wording of Prop 103:
Whereas, the United States is comprised of individuals from diverse ethnic, cultural and linguistic backgrounds, and continues to benefit from this rich diversity; and
Whereas, throughout the history of the United States, the common thread binding individuals of differing backgrounds has been the English language, which has permitted diverse individuals to discuss, debate and come to agreement on contentious issues; and
Whereas, in recent years, the role of the English language as a common language has been threatened by governmental actions that either ignore or harm the role of English or that promote the use of languages other than English in official governmental actions, and these governmental actions promote division, confusion, error and inappropriate use of resources; and
Whereas, among the powers reserved to the States respectively is the power to establish the English language as the official language of the respective States, and otherwise to promote the English language within the respective States, subject to the prohibitions enumerated in the Constitution of the United States and federal statutes.
Prop 103 became law and amended Article 28 of the Arizona Constitution.
Research of Article 28 of the Arizona Constitution
Article 28 of Arizona Constitution can be summed up as follows:
1. English as the official language; applicability Section 1.
(1) The English language is the official language of the state of Arizona.
(2) As the official language of this state, the English language is the language of the ballot, the public schools and all government functions and actions.
(3)(a) This article applies to:
(i) The legislative, executive and judicial branches of government.
(ii) All political subdivisions, departments, agencies, organizations, and instrumentalities of this state, including local governments and municipalities.
(iii) All statutes, ordinances, rules, orders, programs and policies.
(iv) All government officials and employees during the performance of government business.
(b) As used in this article, the phrase “this state and all political subdivisions of this state” shall include every entity, person, action or item described in this section, as appropriate to the circumstances.
The bold highlights above represent the responsibility of local government and municipalities, like Gilbert, to follow this law in all areas including orders, programs and policies by all government officials and employees during the performance of government business.
Research of Article 28 of the Arizona Constitution … the Definitions
I investigated the definition of “official action” as defined in item 2 of Definitions in Article 28 of the Arizona Constitution. It reads as follows:
1. Definitions
Section 1. In this article, unless the context otherwise requires:
1. “Government” includes all laws, public proceedings, rules, publications, orders, actions, programs, policies, departments, boards, agencies, organizations and instrumentalities of this state or political subdivisions of this state, as appropriate under the circumstances to a particular official action.
2. “Official action” includes the performance of any function or action on behalf of this state or a political subdivision of this state or required by state law that appears to present the views, position or imprimatur (definition: sanction, approval, support) of the state or political subdivision or that binds or commits the state or political subdivision, but does not include:
(a) The teaching of or the encouragement of learning languages other than English.
(b) Actions required under the federal individuals with disabilities education act or other federal laws.
(c) Actions, documents or policies necessary for tourism, commerce or international trade.
(d) Actions or documents that protect the public health and safety, including law enforcement and emergency services.
(e) Actions that protect the rights of victims of crimes or criminal defendants.
(f) Using terms of art or phrases from languages other than English.
(g) Using or preserving Native American languages.
(h) Providing assistance to hearing impaired or illiterate persons.
(i) Informal and nonbinding translations or communications among or between representatives of government and other persons if this activity does not affect or impair supervision, management, conduct or execution of official actions and if the representatives of government make clear that these translations or communications are unofficial and are not binding on this state or a political subdivision of this state.
(j) Actions necessary to preserve the right to petition for the redress of grievances.
3. “Preserve, protect and enhance the role of English” includes:
(a) Avoiding any official actions that ignore, harm or diminish the role of English as the language of government.
(b) Protecting the rights of persons in this state who use English.
(c) Encouraging greater opportunities for individuals to learn the English language.
(d) To the greatest extent possible under federal statute, providing services, programs, publications, documents and materials in English.
4. “Representatives of government” includes all individuals or entities during the performance of the individual’s or entity’s official actions.
The above words in bold black represent the definitions that are relative. Item 2 clearly includes Gilbert’s action as an “Official Action”. The exception of sub point (i) does not apply to Gilbert’s action because Gilbert’s action was formal and binding. Even if it had not been formal and binding, representatives of Gilbert would have had to make it clear that the transactions or communications were unofficial and not binding. No Gilbert representative made such a declaration during the meeting.
Research Conclusions
In my expert opinion, the Gilbert action was a violation of Article 28 of the Arizona Constitution.
Closing thoughts … How do we correct this mistake and prevent a similar violation from happening again?
I think an apology from our Mayor would go a long ways … something along the lines of … “we made a mistake, we are sorry, we will take measures to prevent this from happening again.”
I welcome such a reply and would be very pleased to revise this blog post to contain our Mayor’s response below …
Gilbert Mayor John Lewis and Captain Rick converse to find a solution
Gilbert Mayor John Lewis (10/21/12): Rick, The additional information related to the Spanish is helpful and will now require another step to ask for Legal assistance as “interpretation” is reviewed. Obviously, we want to follow the law with exactness. Before reading the Gilbert information, I was most intrigued with the “electoral” vote update that you provided. Thank you for sharing. I look forward to your next update. Mayor Lewis

Captain Rick (10/21/12): John, thank you for your honorable reply. I look forward to you sharing the results of your new legal look into this important matter. I will be pleased to display them below. Thanks also for your kind words about my “electoral vote update”. Captain Rick

Gilbert Mayor John Lewis (10/23/12): Rick, I conferred with our Town Attorney regarding this matter. She points out that on a matter such as this there may be different opinions. However, after reviewing the law and the materials you provided, it is her opinion that there was not a violation of Article 28 by the reading of the proclamation in Spanish. She believes this to be the case because (i) the proclamation is not an official act of the council and (ii) the actual proclamation of the Mayor was written in English. Additionally, the reading of the proclamation was not even by a member of the staff or council. The strongest argument that the reading was an “official act” is that the reading was done at a council meeting and broadcast on Channel 11 and through streaming video. People may differ in their opinions, and the issue may not be black and white in its clarity, but it is the opinion of the Town Attorney that Article 28 was not violated. John Lewis

Captain Rick (10/25/12): John, thanks for your reply. It appears that this important issue remains in disagreement and requires higher powers to decide if this action was a violation of Article 28 of the Arizona Constitution. My readers are free to draw their own conclusions. I trust that Gilbert understands that this action was botched badly and will take measures to prevent a reoccurrence. Captain Rick

Captain Rick Gilbert’s ‘Eagle Eye’ on our Council since 1997