Arizona s Open Meeting Law. Lynne C. Adams, Lewis and Roca LLP

Transcription

1 Arizona s Open Meeting Law Lynne C. Adams, Lewis and Roca LLP

2 Intent of the Law The Open Meeting Law is intended to open the conduct of government business to public scrutiny and prevent public bodies from making decisions in secret.

3 The Basic Rule All meetings of any public body shall be public meetings and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings. All legal action of public bodies shall occur during a public meeting.

4 What Is a Meeting? Meeting means a gathering, in person or through technological devices, of a quorum of members of a public body at which they discuss, propose or take legal action, including any deliberations by a quorum with respect to such action.

5 What Is a Meeting? A quorum of board members is required, but simultaneous interaction is not required for a meeting or a gathering A board can meet in person or through technological devices

6 What Is a Meeting? A meeting includes four types of activities: 1. Discussing legal action 2. Deliberating with respect to legal action 3. Taking legal action 4. Proposing legal action

7 What Is a Meeting? Three types of meeting activities involve board members sharing their opinions: Discussing legal action Deliberating with respect to legal action Taking legal action

8 What Is a Meeting? One type of meeting activities requires only one-way communication: Proposing legal action Proposing legal action = recommending a course of action for the board to consider

9 Covered Entities Governing Board Standing, special or advisory committees or subcommittees of, or appointed by, the Governing Board Any committee that the Board gives authority to, regardless of what the committee is called

10 The Open Meeting Law and There are risks whenever board members send s to a quorum of other board members. AG Opinion I (July 25, 2005)

11 The Open Meeting Law and An from a board member to enough other members to constitute a quorum that proposes legal action would be a meeting within the OML, even if there is only a one-way communication and no other board members reply to the . AG Opinion I05-004

12 The Open Meeting Law and What is OK? Generally, sharing pure information by is okay. Sharing Board member opinions with a quorum of the Board is not.

13 The Open Meeting Law and What is Clearly OK? A staff member or the President can use to distribute the agenda packet to all Board members. A staff member or the President can use to share information about the College with all Board members. but Board members must be careful when responding to such s.

14 The Open Meeting Law and What Is Clearly OK? A Board member can send an requesting specific information to a staff member or the President, with a copy to a quorum of the Board members AND The staff member or President can respond to all or a quorum of the Board members if the response does not communicate the opinions of Board members.

15 The Open Meeting Law and What Is Clearly OK? A Board member can use to send an article, report or other factual information to other board members and/or to a staff member or President, if the document is included in the Board s next agenda packet but a quorum of the Board members cannot use to discuss the factual information, i.e., to share their opinions

16 The Open Meeting Law and What Is Clearly OK? A board member can send an to a staff member or the President and to a quorum of the Board proposing that a matter be placed on a future agenda without more without indicating an opinion regarding action that the Board should take Please put a discussion about faculty websites on the next Board agenda.

17 The Open Meeting Law and What Is Clearly Not OK? A Board member cannot send an to a quorum of the Board that proposes legal action. Please put a discussion about faculty websites on the next Board agenda because I think that we need to monitor faculty websites and control the content.

18 The Open Meeting Law and What Is Unclear? When, in an to a quorum of the Board, a Board member expresses a point of view about any issue that may come before the Board for action, there is a risk that the communication might be construed as a proposal of legal action. I think the partnership with the Foundation for cultural events has been terrific for the College.

19 The Open Meeting Law and AG Guidance So what should Board members do? The Attorney General says: I strongly recommend that board members communicate with a quorum about board business at open public meetings, not through s.

20 Potential Pitfalls Outside of Splintering of quorum with serial discussions Even if communications on a particular subject do not take place at the same time or place, they may constitute a meeting Private, one-on-one discussions that are intended to lead to a collective agreement outside of a public meeting Can be done by meeting in person, by telephone, electronically, or through other means

21 Potential Pitfalls Outside of Hub and spoke discussions Directing a staff member to discuss matters with other Board members and then report back Social conversations by a quorum are not prohibited, but may create an appearance of impropriety

22 Comments to the Media Question whether comments to the media about matters that may come before the Board violated the Open Meeting Law because of possibility of one-way communication with a quorum Scottsdale City Attorney advised board members not to talk to media about board matters

23 Comments to the Media AG opinion: Ok to talk to media because there is no gathering of a quorum of members, so there is no meeting. Although a single to a quorum of a public body proposing legal action violates the OML, a comment reported through the media does not.

24 Comments to the Media Why the different treatment of forwarded messages and media reports? Because [m]edia reports about the work of public bodies supports the interest of open government, which is the same purpose that the OML serves.

25 Comments to the Media New provision of the Open Meeting Law: Not a violation of the law to express an opinion or discuss an issue with the public personally, through the media or through other technological means, but only if Opinion or discussion is not principally directed at or given to another member of the Board No concerted plan to deliberate about later legal action

26 Executive Sessions An executive session is a gathering of a quorum of members of a public body from which the public is excluded. A quorum of members may go into an executive session upon a public majority vote only for one of seven purposes

27 Executive Sessions The seven permissible purposes: Certain personnel matters Review of confidential records Legal advice from lawyer Discussion with lawyers about litigation, contracts being negotiated, settlements Discussions about employee negotiations International, interstate or tribal negotiations Purchase, sale or lease of real property

28 Executive Sessions Courts have strictly construed the seven authorized topics Factual discussions about a matter may have to take place in public session, and the Board can then go into executive session to receive legal advice about the matter

29 Executive Sessions No legal action may be taken in an executive session no straw polls or preliminary votes A public vote must be taken before any action binds the Board.

30 Executive Sessions Personnel matters: Includes discussion or consideration of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of employee or potential employee Must provide the employee written notice of the executive session at least 24 hours in advance Employee may request that discussion take place in public meeting, except for salary discussions

31 Executive Sessions Legal advice from lawyer: The lawyer for the public body must be present (in person or on phone) to provide legal advice Mere presence of a lawyer in executive session is not sufficient must obtain legal advice

32 Executive Sessions Litigation, contracts and settlements: Discussion or consultation for legal advice from the public body s lawyer to consider its position and instruct its attorneys 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. The negotiations or settlement discussions themselves cannot take place in executive session

33 Executive Sessions Purchase, sale or lease of real property: Discussion or consultations with representative 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 The negotiations with the potential buyer/seller/lessee cannot take place in executive session

34 Executive Sessions Attorney General s Office advises Board to make a motion in public session after executive session to instruct attorneys or representatives to act in accordance with instructions given in executive session.

35 Executive Session Attendees Who can attend? Board members Individuals whose presence is reasonably necessary in order for the public body to carry out its executive session responsibilities Employees who are the subject of the executive session The Board s legal counsel The Auditor General for audit purposes

36 Executive Session Minutes Information and minutes are confidential and cannot be disclosed except to specified individuals under certain circumstances, including: Board member not attending meeting Employee who was the subject of a discussion, but can only see relevant portion of minutes Lawyer for the public body Auditor General, Attorney General, Court Must give confidentiality instruction at executive session

37 Conducting a Public Meeting Public Participation Public has the right to attend, listen to and record public meetings. There is no right to participate. The public body may make an open call to the public to allow individuals to address any issue within the public body s jurisdiction.

38 Conducting a Public Meeting Limitations on public participation during open call to public Time, place, and manner restrictions are ok Place time limits on speakers; Require that speakers speak only during the public comment portion of the meeting and only when called upon; Prohibit speakers from engaging in disruptive activities during the meeting; Require speakers to identify themselves. NO Subject Matter or Viewpoint Restrictions!

39 Conducting a Public Meeting Limitations on responses to issues raised during open call: May not discuss or take legal action on items not properly noticed and on agenda May... Respond to criticism Ask staff to review the matter Ask that the matter be put on a future agenda

40 Conducting a Public Meeting Anything that appears to be an attempt to exclude the public should be avoided or curtailed Meetings at odd hours Moving agenda items to portions of meetings where fewer people might be able to attend Separate meetings for controversial items Meeting in rooms too small to accommodate public Sign-in sheets for public

41 Public Records Board members need to remember that all between Board members, Board members and staff, and Board members and the public are public records that need to be properly maintained and produced, if requested.

42 Public Records Recent case about personal messages on government computer Personal s are not public records simply because they are on a publicly owned computer Public records must have a substantial nexus with public activities Mere possession of a document by a public office does not by itself make that document a public record.

43 Sanctions for Violations Actions taken in violation of the Open Meeting Law are deemed null and void unless ratified at a public meeting within 30 days after the discovery of the violation Investigation by the Attorney General or a county attorney Upon receipt of written complaint or on own initiative

44 Sanctions for Violations Board members may not knowingly direct any staff member to violate the law Any person who knowingly aids, agrees to aid or attempts to aid a public officer in violating the Open Meeting Law is subject to liability for costs and attorneys fees

45 Sanctions for Violations Court may impose: Up to $500 fine for each violation Upon individual who violates law, whether violation was intentional or not Upon individual who knowingly aids, agrees to aid or attempts to aid another person in violating the law Attorneys fees for plaintiff Removal from office if violation was intentional

46 Intent of the Law The Open Meeting Law is intended to open the conduct of government business to public scrutiny and prevent public bodies from making decisions in secret.