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         October 6, 2020 Special Session, Governing Board...



         >> MR. DEMION CLINCO:  Good evening, and welcome to the October

    6, 2020 Governing Board special meeting.  Our first order of business

    is calling the meeting to order.

         First of our discussion action items is 2.1, presentation and

    discussion of Arizona conflict of interest law.

         Jeff, I'm going to hand it over to our legal counsel, Jeff

    Silvyn.

         >> DR. MEREDITH HAY:  Demion, did you want to do a roll call?

         >> MR. DEMION CLINCO:  It's not on the list, but why don't we do

    a roll call.  Mr. Silvyn?

         >> MR. JEFF SILVYN:  Thank you, Mr. Chair.  That was about to be

    my next suggestion.

         Mr. Clinco?

         >> MR. DEMION CLINCO:  Present.

         >> MR. JEFF SILVYN:  Dr. Hay?

         >> DR. MEREDITH HAY:  Present.

         >> MR. JEFF SILVYN:  Mr. Hanna?

         >> MR. MARK HANNA:  Present.

         >> MR. JEFF SILVYN:  Ms. Garcia?  Mr. Gonzales?

         So Mr. Gonzales and Ms. Garcia are not currently attending, and

    they informed us this afternoon a couple hours before the meeting

    that they would not be attending.  Present we have three board

    members, which is sufficient for a quorum.





         >> MR. DEMION CLINCO:  Thank you very much, Mr. Silvyn.

         So prior to your presentation I'm just going to share some board

    chair remarks about why we are having this special meeting and a

    little bit of structure as an explanation.

         Over the last 90 days there has been numerous information

    requests and opinions sent by members of the community and Board

    Members Maria Garcia and Luis Gonzales to the board chair and

    Mr. Lambert.

         These requests and opinions have focused on a number of issues

    including Pima Community College's industry partnerships, procurement

    and RFP process standards, shared governance, diversity, equity, and

    inclusion, Governing Board protocol, and transparency.

         The college has provided timely responses to the information

    requests, and as part of our continued commitment to transparency, we

    are now and will continue to be addressing these questions and

    concerns openly and candidly in public meetings with the full

    knowledge and participation of the community we serve.

         I want to underscore that spirited public discourse is the

    bedrock of our democratic system of government, and the board

    welcomes and encourages public comment at any time.  Anyone anywhere

    from within or outside our college who has concerns about college

    matters, including but not limited to college policies and practices,

    discrimination and unethical and/or illegal behavior, is encouraged

    to come forward through the complaint processed detailed on the PCC

    website.





         The links are provided with this report which will be attached

    after I'm completed, including the student complaint process and

    employee Office of Dispute Resolution.

         Additionally, as a reminder, per Governing Board bylaws, Article

    10, code of ethics, the board requests that all employees to avail

    themselves of administrative remedies and complaint resolution

    processes before requesting board involvement.

         The following statement is not meant to address the underlying

    questions raised by the communication of any board members as the

    board has a formal process to address concerns and respond to

    complaints.

         Rather, the following remarks are explicitly intended to outline

    the board's governance process, including the bylaws and board

    policy, the Higher Learning Commission HLC criteria for accreditation

    standards and the Arizona state laws related to open meeting laws and

    executive session confidentiality.

         It is important that the board reminds itself of these standards

    periodically and commit to following them consistently and educate

    the public about how the board operates.

         First, the board governance and adherence to bylaws and policy.

    The Governing Board bylaws, Article 12, response to complaints

    provides a board approved process to raise concerns and complaints.

    The intent of this policy is that to promote the timely and

    appropriate response of complaints regarding the college and maintain

    the appropriate distinction between the role of the board and the





    college administration.

         Board members shall follow the specific process for responding to

    different types of complaints as set forth in the board bylaws.  It

    is critical that all members of the board follow this process of the

    board bylaws.

         Additionally, per the board bylaws, Article 10, code of ethics,

    B4B3, information requests that will involve more than four hours of

    college staff time per request shall require the agreement of the

    majority of the board.  Moving forward there will be strict adherence

    to this standard.

         Next, the Higher Learning Commission.  Going back to at least the

    1990s there has been numerous concerns raised by the HLC related to

    the board governance.  The HLC criteria for accreditation states in

    section 2C "The Governing Board of the institution is autonomous to

    make decisions in the best interest of the institution in compliance

    with board policies and to ensure the institution's effectiveness."

         Item 4, "The Governing Board preserves its independence from

    undue influence on the part of donors, elected officials, other

    interests or external parties."

         While I and every member of the board appreciate the importance

    of listening to constituents, board members are elected to serve the

    interests of the residents of Pima County as a whole, not any

    particular group, organization, or segment of the populous.

         HLC accreditation standards require this, as well.  Put simply,

    if a board member acts at the direction of a specific community





    member or individual groups they are not fulfilling the duties of

    their office or complying with HLC standards.

         Third, Arizona state law related to open meeting laws and

    executive session confidentiality.  The board has authority only when

    acting as a collective, and individual board members do not have

    authority to act on behalf of the college or board.  See the bylaws,

    Article 1, authority, and Article 10, code of ethics.

         Regardless, board actions and discussions must take place at a

    properly noticed public meeting like the one tonight.  Outside of

    properly noticed public meetings, substantive communications

    including three or more board members is prohibited.  See bylaws

    Article 6, meetings, and Article 10, code of ethics.  Also Arizona

    Revised Statute 38-431 through 431.01.

         Violations of this standard can result in civil penalties

    assessed against the offending board member and any person who

    assists in causing the violation.

         Conclusion:  Because of the enumerated issues outlined above, I

    want to offer two specific actions to be taken in the near future.

    First we will schedule an upcoming study session and request that our

    HLC liaison attend to discuss the HLC criteria for accreditation.

         At the same study session, we will be joined by a representative

    from an authoritative public agency such as the Arizona Attorney

    General to discuss the open meeting laws and confidentiality of the

    executive session, as well as a representative from the Association

    of Community College Trustees to discuss best practices for Governing





    Boards.

         This session will be intended to assure all members have an

    opportunity to have questions answered and to understand their legal

    obligations and formal expectations.

         Second, as part of the meeting today, we will determine what

    additional specific actions should be taken to ensure the Governing

    Board and by all of its members act in strict adherence to the HLC

    accreditation standards, Arizona laws concerning open meetings and

    executive session confidentiality, and the standards and procedures

    that have been set by the board.

         So with that, Mr. Silvyn, I'm going to hand it over to you to

    talk about our first item, the presentation and discussion regarding

    the conflict of interest laws.

         >> MR. JEFF SILVYN:  Thank you, Mr. Chair.

         So with that, as you mentioned, a couple of the board members

    raised some concern about the propriety of a couple of projects that

    the college is working on.  In particular with respect to the

    college's work with SocialTech to develop the Unmudl web-based

    platform and the issuance of an RFP for an energy management and

    education services and ultimate award of that contract to Trane.

         Then recently there has been a re-emergence of questions about

    the college's decision to purchase the Tucson Inn because you have a

    connection to Tucson Historic Preservation organizations.

         So in response to those concerns, we engaged outside counsel to

    take a look at all the applicable Arizona laws, college policies and





    procedures, to make sure that these transactions had been handled

    appropriately and that no one at the college had the type of

    relationship of any sort outside of the college with any involved

    parties that would be impermissible in any way or create an

    impropriety with respect to these transactions.

         Part of the reason that we retained Susan Segal, who is a partner

    at Gust Rosenfeld, is she previously served in the Arizona Attorney

    General's office in the education section and some other pertinent

    sections and has spent a significant amount of her career advising

    education-related institutions.

         So what we have is sort of a two-part presentation to address

    that concern.  So the first is Ms. Segal was going to provide a

    general overview of the pertinent policies and procedures, which

    fundamentally this is a question about conflict of interest.

         Second, assuming that the board passes an appropriate motion to

    allow the disclosure of attorney/client communication and analysis,

    she will then, in the second agenda item, provide a more detailed

    analysis about how those rules apply specifically to the transactions

    in question and her findings.

         Finally, I just want to assure the board, if any board member

    ever has a concern about whether there is any impropriety or question

    of an impropriety related to any transaction, we of course want to

    hear that concern, make sure we understand it, so that we can gather

    the appropriate information and have an appropriate independent

    analysis done so that if we are doing something or we discover that





    something shouldn't have happened, we will take the appropriate steps

    to remedy it.

         I do want to assure the board of that.  If there are any

    questions about it, I'm certainly happy to address those.  Otherwise

    what I'd like to do is turn the floor over to Ms. Segal for the

    overview of the conflict of interest law in Arizona.

         >> SPEAKER:  Thank you.  Thank you, Jeff.  Thank you, members of

    the board, Chairman Clinco.

         Andrea, is there a way to start sharing the PowerPoint?

         >> SPEAKER:  You should be -- do you want me to share it?

         >> SPEAKER:  Yes, if you would.

         >> SPEAKER:  Are you able to see it?

         >> SPEAKER:  You want me just to click on it right there?  Can

    you click on it?

         >> MR. JEFF SILVYN:  We are just seeing the directory with the

    document titles.  We are not seeing the actual display.

         >> SPEAKER:  Yeah, it's not working.

         >> SPEAKER:  What you need to do is end sharing of the desktop

    and start sharing the PowerPoint presentation.  It only shares one

    image at a time.

         >> SPEAKER:  I apologize.  Let me try it again.

         >> SPEAKER:  There we go.  We can then Zoom in on the screen.

         So let me just begin with an overview.  This is a short

    PowerPoint.  It is intended to address the issues that came up in all

    three opinions, if you will.





         Thank you, Jeff, for your introduction.  I have represented both

    sides of the coin on conflicts of interest, both as an assistant AG

    and special counsel to Attorney General Goddard and then in my

    private practice at Gust Rosenfeld.  There have been occasions when

    unhappily I was called upon and have had to render opinions that

    there was a conflict of interest, and in two occasions, at least one

    right now, there have been grand jury indictments and no trial quite

    yet, and of course COVID has interfered.

         Conflict of interest is difficult to analyze, but it is

    decipherable.  It is something that you have to walk through and

    maybe once or twice go back to it for a refresher course.

         So let's go on to the third slide.  The law in Arizona is

    contained, as far as conflicts, is contained in this statute, 38-503,

    and specifically two paragraphs, and I guess the most important thing

    to know is that someone who has a substantial interest in any

    contract, sale, or purchase or service shall make that known and

    shall refrain from voting upon or otherwise participating as an

    officer or employee.

         Section B, paragraph B of that statute deals with having a

    substantial interest in a decision of the public agency.  So A deals

    with pretty much transactions, you know, contracts, sale, purchase or

    service, and B deals with decisions relating to any sort of action in

    which that employee or whose employee has or whose relative has a

    substantial interest.

         Again, for purposes of this presentation, the two words of the





    day are "substantial interest."

         We can go to the next one.  The term "substantial interest" is

    defined specifically in 38-502(11) as any nonspeculative pecuniary or

    proprietary interest, either direct or indirect, other than a remote

    interest.

         Again, the word in your mind that you should take away in

    addition to "substantial interest" is "nonspeculative."

         Interest, according to our case law starting in 1972, does not

    mean a mere abstract interest in the general subject or contingent

    interest but is a pecuniary or proprietary interest by which a person

    will gain or lose something, as contrasted with a general sympathy,

    feeling, or bias.

         Then of course in 2002 we have the Hughes Jorgensen case which

    said to violate the conflict of interest statute a public official

    must have a nonspeculative, nonremote, pecuniary or proprietary

    interest in the decision at issue.

         Now, I want to add to this presentation that the term

    "nonspeculative," while it's been used in case law since 1972, has

    not been in statute.  It was however in 2016, four years ago, added

    to comply, if you will, to the case law.

         There were several attempts at prosecution of public officials,

    and on appeal they were struck down or else they were struck down in

    the midst of trial because the interest was speculative.

         It isn't a question of whether you think, oh, this could happen,

    that could happen, this could happen, that could happen.  That's





    speculative.  If it did actually happen and you know there is a

    direct line there, that is nonspeculative.

         Again, the takeaway, if you were going to take away from this

    presentation, in addition to substantial interest into

    nonspeculative, it would be what is a remote interest?  Some of us

    lawyers who muddled through, and I did muddle through tax law -- I

    always got frustrated because you'd go to a tax provision and they'd

    say, well, this applies unless it doesn't.

         Then you'd go to another page or provision of the tax code and

    they say this applies unless it doesn't.  In many ways, the

    definition of remote interest is that type of a definition.  It means

    an interest that falls in any of the 12 categories that is not a

    substantial interest.

         And the attorney general recently revised his handbook, which

    he's required to do by statute, and the section on conflicts of

    interest says that the Arizona legislature has determined that

    certain economic interests are so remote that they do not

    impermissibly influence a person's decisions or actions.

         So you could have a pecuniary interest, but if it's so remote

    that it is de minimis or it could be de minimis, and it falls into

    any of these categories, some of which I'm going to talk about, then

    it's not considered to be a conflict of interest.  So if the public

    official employee only has remote interest, there is no need for

    further analysis.

         I'm going to give you some examples of remote interest, that of a





    nonsalaried officer of a nonprofit corporation.  So if you sit on a

    nonprofit organization, that could be an association, it could be,

    for example, for school board members, it's the Arizona School Board

    Association.  If you sit on the board as an officer, if you sit on

    the board of the YMCA as an officer, those are remote interests and

    the inquiry stops right then and there.

         E, the ownership of less than 3% of the shares of a corporation

    for profit, and then it goes into about the total annual income from

    dividends, which I'm not going to read to you.

         But the most important clause is the ownership of less than 3% of

    the shares of corporation for profit.  Those of you who read some of

    the allegations involving school districts and investigations I have

    been involved in, we had a situation in one school district where the

    CFO also owned a consulting company and had more than a 3% interest

    in that consulting company and nonetheless participated in decisions

    to hire that consulting company.

         Also, her sister had more of that interest, and of course you

    have the sibling which I'm not going into in this presentation

    because it's really not relevant.

         And F is that of a public officer or employee in being reimbursed

    for his actual and necessary expenses incurred in the performance of

    an official duty.  Those are requests for reimbursement of expenses,

    for travel expenses, food, et cetera, et cetera.

         So the Attorney General Handbook has a test to determine if a

    public employee has a substantial interest.  The public officer or us





    should ask, could the decision affect either positively or negatively

    an interest of the officer or employee or the employee's relative?

         Then you go on to No. 2.  Is the interest a pecuniary or

    proprietary interest?  Could it affect a financial interest or an

    ownership interest?

         Then No. 3, is the interest something that is not statutorily

    designated as a remote interest?

         If the answer to each of these three questions is yes, then there

    is a substantial interest, but if you get down to No. 3 and you get

    to something that's statutorily designated as a remote interest, then

    the inquiry stops.

         So there is two other prohibitions that come up from time to

    time.  I did not find either of these existed.  One is to secure a

    valuable benefit for the employee or officer that would not

    ordinarily accrue to the officer employee if the thing or benefit is

    of such character as to manifest substantial and improper influence

    on the officer employee with respect to the officer's employee's

    duties.

         At one point in time -- well, if you were given a trip to Hawaii

    by a vendor, that probably would, you know, probably would have an

    effect on the officer employee with respect to his or her duties.

         But it is -- you see that I'm struggling there because it is a

    subjective test.  If I took you to Burger King, if I were a vendor,

    and took you to Burger King for a hamburger, that's not going to have

    -- I hope it doesn't -- would not have such a substantial and





    improper influence on you.  If I took you to Ruth's Chris Steak

    House, maybe.  Maybe not.  If I paid an expense-paid trip to some

    elaborate resort, that may tip the scales.

         There is also 38-505 that does not allow a public officer or

    employee to receive directly or indirectly compensation other than is

    provided by law and other than he or she would get in the ordinary

    course of their duties.

         So example would be getting an extra, getting that trip to

    Hawaii, that wouldn't be something that would ordinarily accrue and

    your employer is not paying for it.  All right?

         End of the slides.  With that, that is the end of my part of the

    PowerPoint, and of course I will go into the specifics of the

    opinions.

         The most important thing are the words "remote," "substantial,"

    "nonspeculative."

         >> MR. DEMION CLINCO:  Thank you very much, Ms. Segal.

         Item 2.2, waiver of privilege and release of outside legal

    counsel opinion for public discussion.

         Mr. Silvyn, could you read the recommendation?

         >> MR. JEFF SILVYN:  Thank you, Mr. Chair.

         If you indulge me for a minute, I just kind of to wrap up that

    first section, just to let the board know, questions about conflict

    of interest have come up from time to time with board members and

    with staff, and in each case we do an analysis much like you just

    heard, and if it turns out that an individual has some connection to





    a transaction or some party involved in the transaction that might

    cross one of those lines, then we take appropriate steps to make sure

    that they are not involved in any way.

         So it has come up.  It's been dealt with a number of times.  It's

    not often but it does come up from time to time with board members

    and with staff.

         With that, the recommendation on the second agenda item is as

    follows.  The chancellor recommends that the board waive

    attorney/client privilege and authorize the release and public

    discussion of outside legal counsel's opinions regarding potential

    conflicts of interest regarding the college's purchase of the Tucson

    Inn site dated March 8, 2019.  The ongoing development of the Unmudl

    project and related agreements with SocialTech dated September 25,

    2020.  And the award of an energy management and education program

    contract with Trane dated September 30, 2020.

         And just for clarification, the dates I read are the dates of the

    opinion letters from outside counsel.

         >> MR. DEMION CLINCO:  Is there a motion to adopt the

    recommendation?

         >> MR. MARK HANNA:  So moved.

         >> DR. MEREDITH HAY:  Second.

         >> MR. DEMION CLINCO:  Can you do a roll call vote?

         >> MR. JEFF SILVYN:  Mr. Clinco?

         >> MR. DEMION CLINCO:  Yes, I would like to explain my vote

    quickly, Mr. Silvyn.  I said it in my remarks before.  I want to





    underscore it again.  The college and this board welcomes concerns.

         We are interested, if somebody has concerns that something

    illegal, inappropriate, unethical is going on in any way, we have a

    process, and this board takes them very, very seriously.

         With that, having an outside legal review and assessment done and

    making that public is important I think to the public trust, and with

    that I vote yes.

         >> MR. JEFF SILVYN:  Dr. Hay?

         >> DR. MEREDITH HAY:  Yes.

         >> MR. JEFF SILVYN:  Mr. Hanna?

         >> MR. MARK HANNA:  Before I vote, can I just verify that the

    fact that we are taking an action tonight was noticed as

    appropriately by law?

         >> MR. JEFF SILVYN:  Yes, sir.  Actually, so the motion I read is

    in the agenda that was published for tonight that the board might be

    considering this particular motion.

         Yes, this was noticed as an action item with the recommendation

    in the public notice for this meeting.

         >> MR. MARK HANNA:  Thank you.  Yes.

         >> MR. DEMION CLINCO:  Okay.  So we have a motion carries 3-0

    with two members absent.

         Mr. Silvyn, would you like to -- or Ms. Segal, would you like to

    go ahead and give this presentation?

         >> SPEAKER:  Sure.  I'll start.  I'm going to go in chronological

    order.  Yes.





         Approximately a year and a half ago, 18 months ago, I was asked

    to analyze whether Mr. Clinco had a substantial interest in a

    transaction concerning the acquisition of properties by Pima College

    for its Downtown Campus so as to create a conflict of interest.

         The inquiry arose from allegations that board chair, Demion

    Clinco, began serving on the board in December of 2015 had a conflict

    of interest when he voted on the district's purchase of four

    properties in 2017 and 2018.

         This was by virtue of his previous efforts years before when he

    began his board service to place those properties on the National

    Register of Historic Places.

         At no time did he or any relative have an ownership interest in

    these properties or derive any direct or indirect economic benefit.

         In order to render this opinion, I interviewed Mr. Clinco,

    reviewed a complaint authored by Luis Gonzales, a former board

    member, and its attachments as well as board agendas, minutes,

    transcripts, and videos.

         I have examined, I did, online materials related to the

    nomination and placement of these properties on the national register

    as well as corporate documents.  I also researched the law and

    referred to the Arizona Attorney General Handbook.

         The facts are that Mr. Clinco was appointed to serve on the board

    in December of 2015.  He was elected in 2016 to serve a full six-year

    term.  In January of 2018 he was elected chair of the board, and he

    now currently -- he then and now currently serves.





         Before he went on the board, he was employed as a contractor

    serving in the functions of a CEO of the Tucson Historic Preservation

    Foundation, a nonprofit charitable foundation.  Previously he served

    as the president of the foundation's board of directors from 2008 to

    2014.  He also was the CEO of Frontier Consulting Group which he

    owns.

         The salient facts show that he was hired in 2011, Frontier

    Consulting was hired in 2011 by the City of Tucson to prepare a

    Miracle Mile National Register of Historic Places nomination and

    Arizona State Historic Inventory forms.  The project was completed in

    August of 2013.

         Neither he nor his employer did any further compensated work on

    the effort to have these properties placed on the national register

    after 2013, I believe.  He did answer questions from time to time

    from governmental agencies and individuals.

         Then commencing in 2017 the board approved the purchase of

    different properties including Tucson Hotel and Resort, Tucson Inn,

    Frontier Motel, Copper Cactus Inn.  Mr. Clinco derived no money from

    that acquisition.  Neither he nor any relative had an ownership

    interest in those properties.

         Similarly, Frontier Consulting group and Tucson Historic

    Preservation Foundation did not derive any anything.

         Based on that set of facts I concluded that this did not fall

    within the definition of a conflict of interest.  He did not have a

    nonspeculative, proprietary, or pecuniary interest in the district's





    purchase of any of these four properties.  Same applied to his

    relatives.  I did that analysis just to cover all bases.  No one

    stood to gain or lose economically by the board's decision to

    purchase these properties.

         Neither his employer nor his company, Frontier Consulting, had a

    nonspeculative, pecuniary, proprietary interest in the district's

    purchase of any of these properties.

         For this reason I concluded that there was no proof available, no

    evidence of a conflict of interest, any violation of law or district

    policy.

         >> MR. DEMION CLINCO:  Any questions from the board?  Mr. Hanna?

         >> MR. MARK HANNA:  Yeah, two things.

         Ms. Segal, you did not find that Mr. Clinco had any discussions

    with the owners of these properties or that there was any connection

    between Mr. Clinco and the actual owners of the properties; is that

    correct?

         >> SPEAKER:  That's correct.  But the principal inquiry, however,

    was whether this violated, whether he had a direct nonspeculative

    pecuniary interest in these transactions.

         >> MR. MARK HANNA:  Right.  And there was really no benefit to

    the Tucson -- no monetary benefit to the Tucson Historical Society by

    the purchase of these properties; is that correct?

         >> SPEAKER:  Correct.

         >> MR. MARK HANNA:  Thank you.

         >> MR. DEMION CLINCO:  Are there any other questions?





         Okay.  Thank you very much, Ms. Segal.

         Do you want to move to the next?

         >> SPEAKER:  Yes.  This one is the opinion dated September 25,

    2020.  This involves the Unmudl.com platform committee and Chancellor

    Lambert's involvement in the steering council.

         Mr. Silvyn asked me to address whether Chancellor Lambert's

    membership and position on the steering council of the Unmudl.com

    network platform creates a conflict of interest under Arizona's

    conflict of interest laws by virtue of his employment as chancellor

    of the college.

         He also asked me to recommend possible changes to policy or

    practice going forward.  I examined relevant documents, which are

    attached to my opinion, including the Unmudl information as to what

    Unmudl was.  It took a little while for me, as an outsider, to

    understand that but I think I do now.  A memorandum of understanding

    that was signed for initial services, and the minutes of the

    inaugural meeting of the steering council.

         The analysis went very much like I did in my presentation.  I

    analyzed 38-503.  I analyzed the definition of substantial interest.

    I analyzed the definition of a remote interest.  Let me go back and

    point out that Unmudl is a project or a program that was developed by

    SocialTech which is a for-profit organization.

         The network platform of Unmudl connects community colleges,

    students, and employers to provide individuals with learning

    opportunities intended to increase their employability, to procure





    advancement.  It also connects employers, gives them resources for

    training their employees and finding prospective employees with

    particular skills.  Those are all evidenced in tabs 1 and 2 of my

    opinion.

         The college has a short-term memorandum of understanding with

    SocialTech that was executed on October 15, 2019.  The amount of this

    MOU is under the threshold amount specified by board policy 1.05 that

    delegates to the chancellor the authority to enter into agreements

    with third parties.  That threshold amount is $250,000.  Thus

    Chancellor Lambert had full authority to sign the MOU, which was less

    than that amount, far less than that amount.  It was 25,000.

         SocialTech created a 13-member steering council which according

    to the document dated January 1, 2020, provides future focused, and

    pardon me if I'm a little -- a lot of this is educationese, future

    focused strategic leadership support and expert guidance on Unmudl's

    progress.  Council members are not responsible for day-to-day

    activities and tasks and instead focus on guiding the vision leading

    the field with cutting edge, trail blazing, future focused,

    thoughtful leadership, informing marketplace policies and providing

    expert feedback to the leadership team.

         Chancellor Lambert is the chair of the council.  He received no

    compensation or direct or indirect pecuniary benefit by virtue of his

    participation in and membership on and service on the council.  He

    has no ownership interest in either SocialTech or Unmudl.

         The analysis again went through what was prohibited under Arizona





    conflict of interest law.  I found that it did not rise, any of his

    activities were outside of the definition of the substantial

    interest.

         Again, I cited that interest does not mean a mere abstract

    interest in the general subject or contingent interest but is a

    pecuniary proprietary interest by which a person will gain or lose

    something, as contrasted with general sympathy, feeling or bias.

         I also analyzed this question under ARS 38-504 and 38-505, which

    are the two statutes I talked to you about earlier and did not find

    any application of either one.

         He does not receive extra compensation by virtue of his service

    on the steering council, and I did not find evidence any sort of item

    that he would be given that would influence his decision-making.

         Therefore, my analysis was that Chancellor Lambert's

    participation on the steering council does not violate Arizona

    conflict of interest.

         Now, college policies you have procurement purchasing and

    acquisition procedures manual and you have AP 1.25.05.  Those follow

    generally Arizona's conflict of interest laws.  And I found that

    section 1.4 of the procurement purchasing and acquisition procedures

    also incorporates the Arizona conflict of interest law.

         Since I concluded that Chancellor Lambert's participation on the

    steering council does not violate Arizona conflict of interest law,

    my conclusion is also that it does not violate section 1.4 of the

    procurement purchasing and acquisition procedures manual.





         The same is true with respect to the college handbook.  The

    college employee handbook entitled Ethical Standards of Any Conflict

    of Interest, which was adopted September 11, 2020, that section also

    reiterates Arizona's conflict of interest law.  And again, since I

    included that Chancellor Lambert's membership and participation on

    the steering council does not violate the Arizona conflict of

    interest law, my conclusion is also it does not violate the college

    employee handbook ethical standards and conflict provisions.

         I did, as requested by Mr. Silvyn, I did make a recommendation.

    I said that I recommend the chancellor continue to refrain from

    participating in the negotiation with Unmudl or SocialTech and also

    refrain from executing a final agreement with SocialTech so long as

    he participates on the steering council.

         And I understand that that is the practice and has been the

    practice.  He did sign the MOU for $25,000 which was within his

    authority, and there is no conflict in him signing that.

         I just believe that while there has been no violation of the law,

    going forward, in order to reduce the questions that seem to

    continuously surface in the last 18 months, first with you,

    Mr. Clinco, and then with respect to the chancellor, that this would

    be a good move.

         Execution of final agreement could be done by another authorized

    college official who does not hold a position of the Unmudl steering

    committee.

         >> MR. DEMION CLINCO:  Thank you very much, Ms. Segal.





         Any questions from the board?  Mr. Hanna?

         >> MR. MARK HANNA:  I'm a little confused as to the connection

    between SocialTech and Unmudl.  Do you have a clue about that?

         >> SPEAKER:  Yes.  I had the same confusion initially.

    SocialTech is a for-profit corporation and Unmudl.com is a program

    SocialTech has developed.

         >> MR. MARK HANNA:  Is SocialTech a publicly traded company, do

    you know?

         >> MR. JEFF SILVYN:  No.  Mr. Hanna, so the answer is no, it's

    not publicly traded.  It's small.

         >> MR. MARK HANNA:  So there was no indication that there was any

    other deal made for the chancellor, participation in some kind of

    profits somewhere else down the line?  You couldn't find any evidence

    of that, correct?

         >> SPEAKER:  No.  Yes, I could not find any evidence.  And

    remember, even if -- not that he did, but even if he did, even if he

    had an ownership interest in SocialTech, again, remote interest is

    less than 3%.  He doesn't own any interest in SocialTech or in

    Unmudl.

         One could speculate -- let me give you some speculations.  I

    tried to do the devil's advocate with myself.  Well, does this

    increase Chancellor Lambert's prestige within the college?  No, it

    doesn't.  Is this a résumé builder?  Well, if it was, it still is a

    remote interest.  It's not a nonspeculative.

         Again, I was speculating while I was being the devil's advocate,





    and I could not find any angle by which I believed the conflict of

    interest law or college policy would have been violated.

         >> MR. DEMION CLINCO:  Dr. Hay, any questions?

         >> DR. MEREDITH HAY:  No, thank you.

         >> SPEAKER:  The last opinion was on September 30th.  It was my

    letter.  It addressed participation of Chancellor Lambert in

    transactions or decisions relating to the award of a contract for a

    comprehensive integrated energy management program.

         It's my understanding, by the way, just to clear this up, because

    there seems to be some misunderstanding, there is an ongoing study by

    Trane, which was the successful contractor, but there is no

    subsequent contract even before the board or closely on the table.

         I'll let Jeff address that later on.

         This is a question as to whether Chancellor Lambert's position on

    the board of directors of the National Coalition of Certification,

    which I will call NC3, creates a conflict of interest under Arizona's

    conflict of interest laws or policies of Pima County Community

    College District with respect to the award of a contract to Trane

    U.S.

         The relationship is very attenuated, but let me talk about what

    NC3 does.  NC3 develops certification standards using industry

    consultants.  For example, you have heard maybe over the years the

    complaint by members of industry, businesspersons, well, you're

    churning these kids out into the marketplace but they are not

    properly trained.





         So the purpose of NC3, as I can tell, is that NC3 gets people

    together, industry and educational institutions, so the industry can

    say this is the type, these are the type of skills that we need an

    HVAC tech to have or whoever we are talking about.  The board of NC3

    consists of predominantly institutions that provides career and

    technical education.

         The question is even more attenuated.  NC3 is nonprofit, and

    Chancellor Lambert sits on the board, along with several other people

    from around the nation also and from Arizona, that basically do the

    part of the governance structure.  He receives no remuneration.  It's

    a nonprofit association.

         But the most important thing I think in this analysis, before we

    clog our minds with all of this is that NC3 has nothing to do with

    the Trane transaction.  What it has to do is on the board of NC3 is

    an employee of Trane.

         So the question is whether the fact that Chancellor Lambert sits

    on a board with an employee of Trane, of a board of a nonprofit

    organization, with Trane, does that create a conflict of interest?

    And the answer is no.

         I didn't even need to -- I went through the analysis as if NC3

    had participated in a Trane sort of transaction.  It didn't.  The

    whole slim thread is that Chancellor Lambert is a board member as

    well as Mr., I believe, Archambault, who is on the board of

    directors, Patrick Archambault, who is employed by Trane, director of

    strategic programs, is a member.





         Let's analogize is to the local Rotary Club.  Say you're on the

    Rotary Club board with a member of industry.  Maybe it's somebody

    that's an employee at Intel.  And then you do a deal or a transaction

    with Intel.

         Does that create a conflict of interest because you belong to the

    same Rotary Club or are on the board?  The answer is no.

         So again, I'm not going to repeat my analysis other than to say

    that it is so attenuated, and it's on such a slim thread, there is no

    way to even approach a conflict of interest.

         Just to finish, because I took my task very seriously in all

    three cases, I addressed, well, what can be done and what sort of

    recommendation can be made?  And I suggested that, I will read you,

    conflict of interest laws are not easy to understand, and recognizing

    the difference between a remote interest and a substantial interest

    is key to comprehending how the statute operates and how courts

    interpret the law.  The relevant college policies are fully aligned

    with Arizona conflict of interest law.

         Given the number of inquiries and allegations about violations of

    Arizona's conflict of interest law, I suggest training be given to

    your board and senior staff on a regular basis.  I believe the chair

    of your board has scheduled such a session in the very near future,

    which is why we are here tonight, in part.

         And that's the sum and substance of my three letters.

         >> MR. DEMION CLINCO:  Thank you very much.  Are there any other

    questions from board members?  Mr. Hanna has one.





         Before he does, Mr. Silvyn or Ms. Segal, could you clarify, this

    is around the Unmudl situation, SocialTech, is it a public benefit

    corporation?

         >> SPEAKER:  They use that term, but it is a private corporation.

         >> MR. JEFF SILVYN:  Right.  So to be very specific, so

    SocialTech is a public benefit corporation formed in the state of

    Delaware.  Public benefit corporation means that in addition to

    profit motive, they are supposed to consider certain other social

    values and benefits as part of their mission and criteria for what

    goals they set.  So it's still a for-profit.  It's a modified

    for-profit.

         So it's incorporated in Delaware.  Many corporations take

    advantage of the law in Delaware to incorporate there.  There are

    some benefits to doing that.

         They are doing business primarily out of Texas where they are

    registered under the name SocialTech.  There was some question raised

    about that, whether there should be some concern about that, and the

    answer is no.  They're doing what they are supposed to be doing.

         If you're incorporated in one state but you're doing a

    significant amount of business in another state.  You have to

    register in that state.  SocialTech followed that requirement.

         >> MR. DEMION CLINCO:  Thank you for that clarification.

         >> MR. MARK HANNA:  So just for the sake of transparency and just

    to be clear, there was a lower bid, as I understand it.  And,

    Mr. Ward, you can chime in here, there was a lower bid for the Trane





    -- and it's not, as I understand it, it's not equipment.  It's the

    evaluation of our systems plus a design of a hands-on program that

    would be beneficial to our students, but there was a lower bid but

    that's not how all our bids are chosen or our contractors are chosen.

    There is a point system; is that correct?

         >> BILL WARD:  Board Member Hanna, when you go out for an RFP,

    you know, you do not have to pick the low bidder.  So I'm not aware

    of that, because I wasn't -- you know, I was not on the committee, so

    I did not see those.

         But that's just how that works is when you do an RFP, you do not

    have to pick the low bidder, if there was a lower number.

         >> MR. JEFF SILVYN:  Mr. Hanna, I was going to say we have on the

    line tonight Terry Robinson.  He's the director of procurement, so

    perhaps he could give you an overview of what process was followed,

    and then if you have specific questions, he probably would be the

    best person to address them.

         >> SPEAKER:  Thank you, Jeff.  I certainly can.  There is a

    difference between the RFP process, request for proposal, as opposed

    to a bid process.

         Bidding is a process in which you look for lowest, most qualified

    bidder, whereas the RFP process you're looking at multiple evaluation

    criteria that are scored based upon a look at various proposals that

    we received.

         In this case, after evaluating all the proposals, the Trane

    proposal received the highest evaluation scoring based on the





    criteria that our evaluation committee reviewed.

         >> SPEAKER:  May I also add, I left it out maybe in my haste, I

    did interview Mr. Robinson who walked me through that.  I did attach

    the scoring sheet.  Ameresco was the second-highest and engaged in

    both rounds.  There was a protest that did not raise this issue at

    all.  The protest was denied, and they have not appealed.

         I did look at some of the bidding documents and the scoring

    sheets.  Every member of the committee, the evaluation committee, was

    required to and did sign a conflict of interest and confidentiality

    provision basically saying that they agreed they would not talk to

    anyone about this and be influenced by anyone and that they didn't

    have any interest in the picking, in the selection of Trane.

         >> MR. JEFF SILVYN:  And just to clarify or to add to that, so

    Chancellor Lambert was not a member of the selection committee and

    did not participate in the deliberations of the selection committee.

         >> SPEAKER:  Right.  The reason I was kind of stalling is I was

    trying to find the list.  RFP review and evaluation committee

    consisted of Greg Wilson, committee team leader and college dean of

    applied technology.  James Russell, college faculty member.  Jessica

    Normoyle, a college program manager.  David Clark, college

    superintendent of operation.  Raj Murthy, college chief information

    officer.  College senior procurement analyst, Jan Pose (phonetic),

    convened and facilitated the committee.  There was no evidence of any

    wrongdoing based upon my discussion with Mr. Robinson.

         >> MR. DEMION CLINCO:  Just as a follow-up question,





    Mr. Robinson, on our RFP processes that we normally do an RFP, is

    this the standard practice where a committee is convened, a variety

    of stakeholders across the college, in this case, senior

    administrators, faculty, others, do that ranking?

         >> SPEAKER:  That is correct.  All members actually, as a part of

    the process, score independently of each other as they review their

    roles, as their role is for reviewing each of the proposals received.

         >> MR. DEMION CLINCO:  Our RFP process, that's outlined in

    policy, right?

         >> SPEAKER:  That's correct.

         >> MR. DEMION CLINCO:  So we were just, just so I'm completely

    clear, we were consistent in following our adopted college policy

    around how this particular RFP was prepared, was issued, was

    reviewed?

         >> SPEAKER:  And following our standard procedures and practices

    from a procurement perspective, sir.

         >> MR. DEMION CLINCO:  Thank you very much.  I appreciate the

    clarification and the good work.

         Is there any other questions?  I just want to, for clarification

    how many members were on the...

         >> SPEAKER:  Oh, I knew you'd ask me that again after --

         >> MR. DEMION CLINCO:  I'm sorry.

         >> SPEAKER:  It was five, sir.

         >> MR. DEMION CLINCO:  Five.  And it included a member of our

    faculty, member of our senior administration --





         >> SPEAKER:  That is correct.  It included Greg Wilson, again,

    dean of our applied technology unit.  Jim Russell, instructional

    faculty.  Jessica Normoyle, program manager.  David Clark from

    facilities area, superintendent of operations.  And Raj Murthy, AVC

    for IT.

         >> MR. DEMION CLINCO:  Thank you very much.  We really appreciate

    it.  I think that concludes this item unless there are any other

    questions?

         Thank you, Mr. Robinson, we appreciate you being here.  And

    Mr. Ward.  Thank you, Ms. Segal, for your review of these matters,

    and Mr. Silvyn.

         Next item on our agenda is the discussion of recent board written

    communication and board members' questions and concerns regarding the

    Unmudl project and energy management and education program contract

    award to Trane, possible action by the board to authorize further

    steps to address the issues.

         >> MR. JEFF SILVYN:  If I might, Mr. Chair, let me just explain

    kind of what the intent of this agenda item was, and then given our

    present circumstances, the board can decide how it thinks best to

    proceed.

         So based on the various questions and concerns that were

    expressed, and based on my understanding that all five members of the

    board had committed to attend the meeting this evening, this agenda

    item was crafted and noticed to allow the board an opportunity to

    express any questions or concerns they had and for their fellow board





    members and for appropriate staff to both address questions and also

    ask clarifying questions so that we would all be on the same page and

    make sure we understand exactly what the questions and concerns are.

         Then we could determine what would be the next best appropriate

    steps in order to make sure that any unresolved questions and

    concerns were appropriately addressed.

         Unfortunately, because two of the keyboard members decided not to

    participate, what I had intended to accomplish or help the board

    accomplish with this item doesn't quite work that way.  So that was

    the intent behind this, so I guess a question is whether there are

    any further questions from the attending board members about these

    particular matters or whether there are additional steps that you

    would like staff to take in order to address these concerns.

         >> MR. DEMION CLINCO:  Any additional questions from the board or

    concerns?

         >> DR. MEREDITH HAY:  None from me.

         >> MR. DEMION CLINCO:  I mean, I think the other important thing

    to note about this is this document is hyperlinked, has all of the

    underlying documents and responses made by board members.

         Again, I think this board has made an effort to be as transparent

    and as clear as possible.  All of our meetings are broadcast.  We

    post all of our agenda material, the underlying documents.  This is a

    continuation of that.

         So the public is invited to go and take a look at these.  They

    look at the responses that were provided by the college and by myself





    in some cases.

         This was the opportunity to have any of these questions

    addressed.  I mean, I would like to also thank the senior staff and

    faculty members and everybody who took time from their evening to be

    here to help answer and address questions.  These questions have been

    circling for the past 60 days, and it still has not been clear what

    the intent of some of these requests, the underlying intent really

    has been.  And this was really in hope this meeting was to try to

    address and better understand the underlying concerns.

         So we publicly noticed this meeting.  The meeting has now been

    held.  You know, people can raise the questions in alternate ways,

    but I think the board has now addressed them.

         Okay.  Next item on our agenda is 2.4, future board study

    sessions regarding compliance with open meeting laws, executive

    session, confidentiality requirements, and accreditation standards

    for boards.

         Mr. Silvyn, do you want to read or share the background on this?

         >> MR. JEFF SILVYN:  So I can --

         >> MR. DEMION CLINCO:  This is an action item, right?

         >> MR. JEFF SILVYN:  Right.  So I can read the recommendation if

    that would be helpful, and then the board can discuss and decide how

    to best proceed.

         Again, the context of this is again we had a variety of questions

    and concerns raised from multiple board members, so this was an

    attempt to take at least one concrete step to making sure we were





    adequately addressing those.

         The chancellor recommends that the board schedule one or more

    study sessions focused on, one, application of the Arizona meeting

    laws to the board, including presentation by a representative of an

    authoritative Arizona agency.

         Two, confidentiality requirements for public officials concerning

    executive sessions and attorney/client privileged communications

    including a presentation by an independent subject matter expert.

         And three, Higher Learning Commission accreditation standards

    regarding board member duties and conduct including a presentation by

    a subject matter expert.

         Each discussion topic will also address the risk to board members

    and the college for noncompliance with these standards.

         >> MR. DEMION CLINCO:  Do I have a motion to adopt the

    recommendation?

         >> DR. MEREDITH HAY:  So moved.

         >> MR. DEMION CLINCO:  Second?

         >> MR. MARK HANNA:  Second.

         >> MR. DEMION CLINCO:  Discussion on the item?

         >> MR. MARK HANNA:  Yeah, Chairman Clinco.

         I just want to be sure that I state from my point of view that I

    value each and every board member, and I value the responsibility

    that each of us have to ask questions and to -- Lord knows I have

    used that responsibility over my six years about asking questions --

    so that's important that we respect each other in terms of having





    that responsibility.

         But I also understand that in order for us to operate as an

    efficient governing body that we have to have some rules in place.

    There are not only just rules but there are laws governing how we

    act.

         So I especially welcome us reviewing all those laws and rules as

    to how we should act as a responsible governing board.  That's it.

         >> MR. DEMION CLINCO:  Thank you very much, Mr. Hanna.

         I can't agree more.  I think this is an opportunity for everybody

    to get their questions answered directly from the source.  I think if

    you review the communications that have been sent, there is a lot of

    sort of speculative qualities or statements that discuss different

    aspects of these things, and I think to have somebody from the

    organizations or agencies to address everybody's questions and

    concerns is really probably the most straightforward and best thing

    we can do.

         Again, I think it's the most transparent.  And I think it's worth

    -- is Dr. Moses available?  Is he here this evening?

         >> DR. BRUCE MOSES:  Yes.  I'm here, Chair Clinco.

         >> MR. DEMION CLINCO:  One of the things I continue to be

    concerned about, and maybe you can provide a little bit of insight,

    is over the past 25 years the college has had a number of issues with

    the Higher Learning Commission, specifically about board behavior or

    board actions or inactions.

         I was wondering if you could just provide very, very sort of





    high-level overview of what some of those things have been over the

    years?  I just think for the sake of this conversation it's helpful.

         >> DR. BRUCE MOSES:  Sure.  I'd love to do that.  So first of

    all, let me just say that under the chancellor's leadership and based

    on Higher Learning Commission recommendations over the years, the

    chancellor has invested a lot of resources and time in the Governing

    Board members being available to professional development

    opportunities.

         I think why this is important and why it's important to the

    chancellor is because of what you just stated, Chair Clinco, is twice

    in our history the Board of Governors' role and effectiveness and

    perceived public support has contributed to the cause of being placed

    on probation twice.

         So as individuals responsible for maintaining the college's good

    standing with the HLC, I have had conversations with the chancellor

    multiple times about ongoing professional development for the board

    is a good thing, especially when you have board turnover.

         So the chancellor has basically every time a new board member or

    new board members have come on, he's invested in those efforts

    through either basically having the HLC, ACCT come out, and ensure

    that those folks have a good understanding of what their role and

    their responsibilities are.

         But dating back all the way to 1984, this has always been an

    issue for the college.  The role of the board, either communication,

    undue influence, interference, various natures of things have





    happened with the boards over the time that the college has been with

    the Higher Learning Commission.

         Again, twice the board's role has come into question, their

    effectiveness, their delegation of the day-to-day operations to the

    chancellor have contributed to sanctions by the HLC.

         So I applaud what you guys are doing as fellow board members and

    the chancellor in investing in these efforts, because I think it's a

    very, very important -- I think the college has, in the last ten

    years, this is the best position the college has ever been in in

    regards to their accreditation standing with the HLC.  I don't think

    we need to jeopardize that moving forward.

         Thank you, sir.

         >> MR. DEMION CLINCO:  Thank you very much, Mr. Moses.

         And I would say this board, and at least some of the members who

    are sitting here tonight, have participated at a very high level of

    education around HLC standards.  We have attended HLC conferences and

    had multiple sessions with liaisons and representatives.

         I mean, all of that I think has really provided a very strong

    understanding of the importance that the Commission really plays in

    assuring our ability to function as highly as we do.

         So you would recommend that we have additional, that we bring in

    our liaison to just answer everybody's questions so we all hear

    exactly the same thing and there is no more confusion?

         >> DR. BRUCE MOSES:  Absolutely, 100%.  She'd be happy to do

    that.  I have already talked to her.  She'd be very happy to do that.





    Thank you.

         >> MR. DEMION CLINCO:  Any other questions?

         Okay.  Thank you very much, Mr. Moses.

         So with no other questions, if we could have a roll call vote.

    Mr. Silvyn?

         >> MR. JEFF SILVYN:  Thank you, Mr. Chair.  Mr. Clinco?

         >> MR. DEMION CLINCO:  Yes.

         >> MR. JEFF SILVYN:  Dr. Hay?

         >> DR. MEREDITH HAY:  Yes.

         >> MR. JEFF SILVYN:  Mr. Hanna?

         >> MR. MARK HANNA:  Yes.

         >> MR. DEMION CLINCO:  The motion passes 3-0 with Board Member

    Gonzales and Board Member Garcia absent.

         Finally, we have on the agenda 2.5, a motion to direct college

    legal counsel to implement the direction given at executive session,

    and we have no action on that item.

         So with that, the meeting is adjourned.  Thank you all very much.

         (Adjournment.)





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