FUNDAMENTALS OF LOCAL GOVERNMENT – PUBLIC SERVICE ETHICS AND OPEN GOVERNMENT

1. FUNDAMENTALS OF LOCAL GOVERNMENT – PUBLIC SERVICE ETHICS AND OPEN GOVERNMENT League of Arizona Cities and Towns August 21, 2014

2. America – A Unique Experiment in Democracy • “The people of America now had the best opportunity and the greatest trust in their hands that Providence ever ordained to a small number since Adam and Eve.” John Adams • “I venture to assert, that there is not upon the face of the earth a body of people more happy or rising into consequence with more rapid stride, than inhabitants of the United States of America. Population is increasing, new houses building, new lands clearing, new settlements forming and new manufactures establishing with a rapidity beyond conception.” Thomas Jefferson

3. “We must always consider that we shall be as a city upon a hill – the eyes of all people are upon us.” John F. Kennedy • “America is a shining city upon a hill whose beacon light guides freedom-loving people everywhere.” Ronald Reagan

4. Pillars of Government • Open Government • Unbiased Government • Responsible Government • Efficient Government

5. OPEN GOVERNMENT

6. The Public’s Information • Open Meeting Laws • Public Records Laws “A people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both.” James Madison (drafter of the First Amendment)

7. Purpose of Open Meeting Law “It is the public policy of this state that meetings of public bodies be conducted openly and that notices and agendas for those meetings contain as such information as is reasonably necessary to inform the public of the matters to be discussed or decided.” A.R.S. § 38-431.09.

8. What is a “Public Body”?Definitions: A.R.S. § 38-431 All boards and commissions of political subdivisions, all multimember governing bodies of departments, agencies, institutions and instrumentalities of the political subdivisions, including without limitation all corporations and other instrumentalities whose boards of directors are appointed or elected by the state or political subdivision, including standing, special or advisory committees or subcommittees of, or appointed by, such public body.

9. Exceptions • Staff meetings • Staff appointed committees that advise staff (not necessarily the public body) • The “department head” exception

10. What is a “Meeting”? The gathering, in person or through technological devises, 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.

11. Splintering the Quorum • E-Mail • Telephones • Polling the Council • Staff • Cannot direct staff to communicate in violation of open meeting law. • Social Events • If more than a quorum present: • Post a “courtesy agenda” announcing social event where a quorum may be present. • Include a statement that no business of the public body will be discussed and no action will be taken.

12. What is “Legal Action”? A collective decision, commitment or promise made by a public body pursuant to the constitution, the public body's charter, ordinances, bylaws and the laws of this state.

13. Requirements for a Legal Meeting • Before the meeting... • Public notice • Notice to members • Agendas • Accessibility

14. NoticeA.R.S. § 38-431.02 • “Conspicuously post” on city/town websites or on the website of an association of cites and towns a statement indicating the physical and electronic locations where meeting notices will be posted; and • Post all meeting notices on the city/town website or on a website of an association of cities and towns; and • Provide “additional notice” of meetings as is “reasonable and practicable.”

15. Training MaterialsA.R.S. § 38-431.01 City/Town Clerk must conspicuously post open meeting law materials prepared and approved by the attorney general on their website. A person elected or appointed to a public body shall review the open meeting law materials at least one day before the day that person takes office.

16. Notice: A.R.S. § 38-431.02(D)(E) • Emergency Exception • Requires actual emergency. • “Notice as is appropriate to the circumstances.” • Must post public notice and agenda within 24 hours. May include Saturdays, but not Sundays, if public has access to posted location.

17. Notice: A.R.S. § 38-431.02(E) • May recess and reconvene properly posted meeting within 24 hours. • But prior to recess--must announce time and place of resumption, OR • Method by which such notice will be given.

18. Attending by Phone • Participation by telephone is OK, but: • The public must be able to hear the person on the phone; • The person on the phone must be able to hear everyone at the meeting; and • Participation on the phone must be noted on the agenda.

19. The Agenda • List the specific matters to be discussed, considered or decided at the meeting. • Make agenda items understandable. • Do you understand this? “Consideration and action on plan of consolidation subcommittee.” • Or this? “Consideration and action on proposal of the consolidation subcommittee to close Emerson Elementary School and plan for relocation of students to other district elementary schools.”

20. Executive Session Agendas • Must include a general description of the matters to be considered. • Need not contain information that would: • Defeat the purpose of the executive session. • Compromise the legitimate privacy interests of a public officer, appointee or employee. • Compromise the attorney-client privilege.

21. At the Meeting • Determine quorum. Record members present, absent. • Parliamentary Rules of Procedure? • Public hearings may be required for some matters (e.g., zoning).

22. At the Meeting • Sign-in sheets: optional only. • Persons addressing the body should identify themselves—(include name and subject in minutes). • After hours meetings: do not lock entrance doors—accessibility required. • Record motions and the maker.

23. Meeting Pitfalls • Passing notes. • Whispering to fellow Council members. • Quorum talking to individuals before the meeting officially starts or after the meeting officially ends.

24. Public’s Rights • Public has the right to: • Attend. • Listen. • Tape record or videotape. • Public has NO right to: • Speak. • Disrupt.

25. Calls to the Public • Not required – but if you have them, the only responses allowed are: • Response to criticism. • Ask staff to review a matter. • Ask that a matter be placed on a future agenda. • Can limit time. • May require speakers on same side with no new comments to select spokesperson. • May set ground rules for civility, language and treat everyone the same.

26. Current Events • Current events must be current. • Chief administrator, presiding officer or a member of a public body may present a brief summary of current events without listing in the agenda the specific matters to be summarized, provided that: • “Current events summary” is listed on the agenda; and • Public body does not propose, discuss, deliberate or take legal action. • Other members of the public body should not get into a discussion about it.

27. Meeting Minutes: Cities & Towns • Cities and towns with a population of more than 2,500 shall: • Post legal actions taken or any recording on its website within three working days. • Post approved meeting minutes of city or town council meetings on its website within two working days following approval. • Posting must remain on website for one year.

28. Subcommittees & Advisory Committees • Subcommittees and advisory committees of cities and towns with a population of more than 2,500 shall: • Take written minutes or record all meetings, including executive sessions. • Within ten working days of a meeting, must: • Post a statement describing any legal action, or • Post any recording of a public meeting.

29. Executive SessionsA.R.S. § 38-431.03 • Limited exception to public meeting. • Must vote in open meeting for executive session. • Agenda must state specific provision of law authorizing the session and specify the item. • Must include a general description of matters to be considered. (Not just statutory authorization, but don’t defeat purpose.)

30. Who May Attend Executive Sessions? • Members of the public body. • Persons subject to a personnel discussion. • Auditor general. • Individuals whose presence is reasonably necessary in order for the public body to carry out its executive session responsibilities. • Clerk to take minutes/run tape. • Finance Director to advise on economic terms of deal. Tip: Put on the record why certain staff are reasonably necessary.

31. Executive Session Purposes • Employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation.

32. Personnel Matters • Written notice to employee not less than 24 hours before meeting. (Confirm receipt of notice.) • Employee may require the meeting be held in public. • You may conduct a personnel evaluation in executive session, but cannot use the session as an opportunity to conduct lengthy information gathering meetings that explore the operation of public programs under the guise of conducting a personnel evaluation.

33. Executive Session Purposes • Records exempt by law from public inspection. • Discussion or consultation for legal advice with the attorney of the public body. • Discussion or consultation with the attorneys to consider and instruct regarding contract negotiations, pending or contemplated litigation, or settlement discussions to avoid or resolve litigation.

34. Legal Advice in Executive Session • Must be lawyers for the public body. • Not lawyers for someone else. • What is allowed: • Advice regarding the legal ramifications of facts. • Legal propriety, phrasing, drafting and validity of proposed legislation, including meanings, legal scope, and possible legal challenges. • What is not allowed: • Discussion regarding the merits of enacting the legislation. • Debate over what action to take (i.e., pros and cons, policy implications).

35. Executive Session Purposes • Discussions or consultations with employee organizations for negotiating salaries, salary schedules, or compensation. • Discussion, consultation re: interstate, international, or tribal negotiations. • Discussion or consultations to consider and instruct on negotiations for purchase, sale, or lease of real property.

36. Confidentiality of E-Session • Minutes and discussions must be held confidential. • Except from members of the body.

37. Executive Session Pitfalls • Failure to keep executive session discussion confidential. • Failure to advise persons about the confidentiality requirement of A.R.S. § 38-431.03(C).

38. Meeting Held in Violation of OML: • All legal action in connection with the violation is null and void.

39. Complaints and Violations:What is OMLET? • AG’s Open Meeting Law Enforcement Team (OMLET). • Handles inquiries, conduct investigations, and enforcement proceedings relating to complaints of violations of the Open Meeting Law. • Investigations conducted when OMLET receives a signed, written complaint that describes conduct that, if verified, would be a violation.

40. Failure to Comply with AG • Possible filing of action in superior court for an order to enforce the demand. • Failure to comply with court equals: • Contempt of court. • Injunctive order against conduct that is subject of investigation.

41. Consequences of Violation • Any person affected by alleged violation may commence suit in superior court to force compliance with OML. • Each violation: civil penalty up to $500. • Removal from office. • Generally, no public monies for legal fees incurred by public body or officer as a result of violation. See A.R.S. 38-431.07

42. Open Meeting Law and Good Government • Don’t stop all communication with your colleagues.

43. Public Records Authority Public Records Act: A.R.S. § 39-121 et seq. A.R.S. §39-121. Inspection of public records. “Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.”

44. But – not every document located in the office is a public record • Must have “substantial connection” with public officer or body’s duties. • Not post-it notes/mere memory aids if simply a reminder for follow-up – but if kept and filed for some purpose, then presumably a public record. • Does not include records revealing only private affairs.

45. Hot Topics – Public Records Act • Not all e-mails are public records. • You cannot avoid creating public records by using your home computer. • Websites – unchartered territory.

46. UNBIASED GOVERNMENT

47. Public Service Ethics Laws • No Self-Dealing • No Conflicts of Interests • No Extra Compensation • No Inappropriate Gifts • No Discrimination • No Retaliation Against Whistleblowers

48. Conflicts of Interest • Conflicts of interest are okay • But: • Identify • Disclose • Disqualify

49. Identify a Conflict of Interest “Any public officer or employee who has, or whose relative has, a substantial interest in any decision of a public agency shall make known such interest in the official records of such public agency and shall refrain from participating in any manner as an officer or employee in such decision.”

50. Who is subject? • All public officers and employees. • Includes family: spouse, child, grandchild, parent, grandparent, siblings and in-laws.