ARIZONA’S OPEN MEETING LAW

1. ARIZONA’S OPEN MEETING LAW Presented to League of Arizona Cities and Towns September 1, 2011

2. 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 such information as is reasonably necessary to inform the public of the matters to be discussed or decided.” A.R.S. § 38-431.09

3. “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)

4. 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.

5. “Advisory committee” • A committee that is officially established, upon motion and order of a public body or by the presiding officer of the public body, and whose members have been appointed for the specific purpose of making a recommendation concerning a decision to be made or considered or a course of conduct to be taken or considered by the public body.

6. Exceptions • Staff meetings • Staff appointed committees that advise staff (not the City/Town Council) • Single department head

7. What is a “Meeting”? • The 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.

8. Attending By Phone • If there is a problem reaching a quorum, 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.

9. Splintering the Quorum • E-mail • Telephones, including Text Messaging • Polling • Committing your vote to a member of the public. • 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.

10. E-Mail Communications:Possible Violation • Same OML restrictions apply. • No E-mails among quorum involving discussions, deliberations, or taking legal action on matters that may reasonably be expected to come before the Council. • No proposing legal action in an E-mail. • No using E-mail as a device to circumvent the requirements in the OML. See Op.Atty.Gen. No. I05-004.

11. Staff E-Mail • Staff may send e-mail to Council members. • Passive receipt of information from staff, without more, does not violate the open meeting law. • Example: Council meeting packets • Staff may NOT send opinion or substantive communications about Council business from a Council member to enough other members to constitute a quorum.

12. EXAMPLE 1: • E-mail discussions between less than a quorum of the members that are forwarded to a quorum by a member or at the direction of a member would violate the OML.

13. EXAMPLE 2: • If a staff member or a member of the public e-mails a quorum of members of the public body, and there are no further e-mails among members of the public body, there is no OML violation.

14. EXAMPLE 3: • A councilmember may copy other members on an e-mailed response to a constituent inquiry without violating the OML because this unilateral communication would not constitute discussions, deliberations, or taking legal action by a quorum of the board members. • USE CAUTION: no proposals of legal action!

15. EXAMPLE 4: • An e-mail request by a councilmember to staff for specific information does not violate the OML, even if the other members are copied on the e-mail. • Staff may reply to all without violating the OML as long as that response does not communicate opinions of other councilmembers. • However, if members reply in a communication that includes a quorum, that would constitute a discussion or deliberation and therefore violate the OML.

16. EXAMPLE 5: • A councilmember may send an article, report or other factual information to the other members or staff with a request to include this type of document in the council’s agenda packet. • The agenda packet may be distributed e-mail. • Members may not discuss the factual information with a quorum of the board through e-mail.

17. AG Opinion RegardingCommunications to the Press • A prior AG opinion suggested a member of a public body could not speak to the media about matters that may come before the body without violating the OML. • AG’s office has clarified: the OML does NOT prohibit a member of a public body from speaking to the media (Ariz. Att’y Gen. Op. I07-013). • 2008 Legislation: Public officials may express opinion publicly if not part of a concerted plan to engage in collective deliberation.

18. Public actions... • “All LEGAL ACTION of public bodies shall occur during a public meeting.” A.R.S. § 38-431.02

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

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

21. NoticeA.R.S. § 38-431.02 (Newly Revised) • “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.”

22. Training MaterialsA.R.S. § 38-431.01 (Newly Revised) • 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.

23. 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.

24. 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.

25. AgendasA.R.S. § 38-431.02 • Must list the specific matters to be discussed, considered or decided at the meeting. Action may only be taken (discussed or considered) on listed items.

26. Agendas • Call to the Public—A.R.S.§ 38-431.01(G) • “Individual members” may • respond to criticism, • ask staff to review, or • place on future agenda. • Members may not discuss or take legal action unless properly noticed for action/discussion.

27. Reports on Current EventsA.R.S. § 38-431.02(K) • Presiding officer, chief administrator or a member of the public body may present brief “summary of current events.” • Provided: • The summary is listed on the agenda. • The public body does not propose, discuss, deliberate or take legal action at that meeting on any matter in the summary unless the specific matter is properly noticed for legal action.

28. At the Meeting • Determine quorum. Record members present, absent. • Parliamentary Rules of Procedure. • Agenda order/changes. • Public’s right: “All persons so desiring shall be permitted to attend and listen to the deliberations and proceedings.” A.R.S. § 38-431.01(A) • Decorum and personal attacks.

29. 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.

30. Meeting Pitfalls • Passing notes (even if it’s about when to order lunch). • Whispering to fellow Council members. • Privately using modern technology. • Quorum talking to individuals before the meeting officially starts or after the meeting officially ends.

31. 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.

32. 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.

33. After the Meeting:Advisory Committees/Subcommittees Post either a statement describing legal action or a recording of the meeting on City’s internet website within ten working days of the meeting.

34. 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. • “Legal advice” exception to specific posting of item. • Must include a general description of matters to be considered. (Not just statutory authorization, but don’t defeat purpose.)

35. 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. • Attorney to give legal advice. Tip: Put on the record why certain staff are reasonably necessary.

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

37. 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.

38. 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.

39. 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 or what action to take based upon the attorney’s advice. • Debate over what action to take (i.e., pros and cons, policy implications).

40. 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.

41. Confidentiality of E-session • Minutes and discussions must be held confidential. • Except from members of the body and certain other limited exceptions.

42. 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). • Best practices for preserving confidentiality: • Do not fax backup materials to members. • Members should not take confidential materials home from the meeting. • Let staff destroy extra copies.

43. Meeting Held in Violation of OML: • All legal action is null and void. See A.R.S. 38-431.05(A)

44. 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.

45. Investigations: AG or County Attorney • AG may: • Issue written investigative demands. • Administer an oath or affirmation to any person for testimony. • Examine under oath. • Examine by means of inspecting: • Accounts • Books • Computers • Documents • Minutes • Papers • Recordings • Records See A.R.S. 38-431.05

46. Failure to Comply with AG • Possible filing of action in superior court for an order to enforce the demand. • Failure to comply could result in: • Contempt of court. • Injunctive order against conduct.

47. 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

48. Arizona Agency Handbook • http://www.azag.gov/Agency_Handbook/Agency_Handbook.html • Chapter 7 Open Meetings