ARIZONA S OPEN MEETING LAW Christina Estes-Werther, General Counsel April 29, 2015
Overview Purpose/Foundation Legislative history, meeting, public body, legal action, etc. Meeting Requirements, Notices Executive Session Violations/Penalties Resources 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
Purpose of Open Meeting Law This statement guides the public body when structuring a city or town council meeting, advisory group, subcommittee or work session and offers a reminder that any ambiguity in the law should favor transparency to the public. When in doubt, be open to the public! 4
Purpose of Open Meeting Law Who do we work for? Elected Officials, Appointed Directors, AND THE PUBLIC! 5
Legislative History Enactment: Laws 1962, Ch. 138, Sec. 2 Interpretation based on Attorney General Opinions (as reported in Op.Atty.Gen. No. 75-7) Op.Atty.Gen. No. 62-18 (school board exec session) Op.Atty.Gen. No. 63-40 (application to Merit System Council) Op.Atty.Gen. No. 66-18 (application to Indian Affairs Comm n) Op.Atty.Gen. No. 73-9 (Board of Regents exec session) 6
Legislative History Amended: Laws 1974, Ch. 196, Sec. 1 Expanded definition of governing bodies Added definition of legal action Required taking of written minutes Added public notice requirements Clarified executive sessions Added provisions relating to violations and exceptions 7
Legislative History Highlights of other revisions: Laws 1978, Ch. 86 Expanding scope to include advisory committees Laws 1982, Ch. 278 Revising provisions relating to notice, agenda, executive session and penalties Laws 2000, Ch. 358 Expanded meeting to include technological devices; investigation process for violations 8
Legislative History Highlights of other revisions (continued): Laws 2006, Ch. 294 Some jurisdictions required to post notices/agendas on web sites Laws 2008, Ch. 135 Specifying a member of a public body is not subject to OML when expressing an opinion through media, with certain restrictions Laws 2010, Ch. 88 Requiring posting of notices online 9
What is a Public Body? Definitions: A.R.S. 38-431 The legislature, all boards and commissions of this state or political subdivisions, all multimember governing bodies of departments, agencies, institutions and instrumentalities of this state or political subdivisions, including without limitation all corporations and other instrumentalities whose boards of directors are appointed or elected by this state or political subdivision. 10
What is a Public Body? Definitions: A.R.S. 38-431 Public body includes all quasi-judicial bodies and all standing, special or advisory committees or subcommittees of, or appointed by, the public body. Public body includes all commissions and other public entities established by the Arizona Constitution or by way of ballot initiative, including the independent redistricting commission, and this article applies except and only to the extent that specific constitutional provisions supersede this article. 11
Advisory Committee or Subcommittee Any entity, however designated, that is officially established, on 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. 12
Advisory Committee or Subcommittee Any entity, however designated Is the public body (presiding officer) officially establishing the committee? Is the committee tasked with providing a recommendation to the public body about a decision or course of conduct? 13
Exceptions: A.R.S. 38-431.08 OML does NOT apply to: Any judicial proceeding of any court or any political caucus of the legislature. Any conference committee of the legislature, except that all such meetings shall be open to the public. The commissions on appellate and trial court appointments and commission on judicial qualifications. Certain Board of Fingerprinting hearings Board of Executive Clemency hearings in prison facilities. 14
Exceptions: A.R.S. 38-431.08 (continued) There are NO exclusions for cities or towns. However, there are types of proceedings that don t fall within the definition of public body : Staff meetings Staff appointed committees that advise staff (not the City/Town Council) Single department head 15
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. 16
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. 17
Splintering the Quorum E-mail Telephones, including Text Messaging Polling 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. 18
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. 19
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. 20
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. E.g., For a 7-member council, three council members discussing an issue and the email is forwarded to staff with the instruction to share with a fourth council member. 21
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. BEST PRACTICE TIP: Include a disclaimer notice on the email that clearly tells members to not reply all. 22
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! 23
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. 24
EXAMPLE 4 (continued) E.g., A council member asks staff for a copy of legislation and copies the council on the email. Staff can attach and send the legislation to all members. No further communication = no violation. A council member hits reply all and asks for a copy of the AG Opinion relating to the legislation = no violation. A council member hits reply all and suggests the council file a lawsuit against the legislation = violation. 25
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 via e-mail. Members may not discuss the factual information with a quorum of the board through e-mail. 26
AG Opinion Regarding Communications 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. 27
Public actions... All LEGAL ACTION of public bodies shall occur during a public meeting. A.R.S. 38-431.02 28
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. 29
Requirements for a Legal Meeting Before the meeting... Public notice Notice to members Agendas Accessibility 30
31 Notice A.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.
Training Materials A.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. 32
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. 33
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. 34
Agendas A.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. 35
Agendas Call to the Public A.R.S. 38-431.01(H) 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. 36
Reports on Current Events A.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. 37
38 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.
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. 39
Meeting Pitfalls Passing notes. Whispering to fellow Council members. Privately using modern technology. Quorum talking to individuals before the meeting officially starts or after the meeting officially ends. 40
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. 41
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. 42
Executive Sessions A.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.) 43
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. 44
Moving into Executive Session The vote to move into an executive session must be conducted in the open meeting Make sure the room is cleared and only those authorized to be present are in attendance; survey the room and ensure that there are no belongings or recording devices left behind by the public. Once in the executive session, remind all those in attendance that all discussions are confidential. 45
Executive Session Purposes There are seven statutory purposes for a public body to meet in executive session. See A.R.S. 38-431.03. Courts have construed exceptions to the OML very narrowly because of the policies that favor open and public meetings. Ariz. Op. Atty. Gen. No. I96-012 (Ariz.A.G.) citing Fisher v. Maricopa County Stadium District, I85 Ariz. 116, 912 P.2d 1345 (App. 1995) 46
Executive Session Purposes 1. Employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation. 47
48 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.
Executive Session Purposes 2. Records exempt by law from public inspection. These are records made confidential by statute. There are over 300 Arizona statutes that address the confidentiality of records. The Arizona Agency Manual contains a comprehensive list of the Arizona statutes that may require that all or a portion of governmental records be protected from public disclosure. I.e. Criminal history record information; Executive Session minutes Rules or regulations may limit disclosure of certain information; Federal law may require confidential treatment of certain information. See, e.g., 42 U.S.C. 405(c)(2)(C)((viii)(I) (prohibiting disclosure of social security numbers to unauthorized persons); Public officials and employees should review the confidentiality provisions that affect their areas of responsibility to avoid disclosure of confidential information. 49
Executive Session Purposes 3. Discussion or consultation for legal advice with the attorney of the public body. 4. 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. 50
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). 51
Executive Session Purposes 5. Discussions or consultations with employee organizations for negotiating salaries, salary schedules, or compensation. For example, a public body may discuss related budgetary matters, program issues or other items in executive session that are necessary to its evaluation of an employee, but it is not appropriate to discuss a broad range of budgetary matters under the guise of salary in a personnel evaluation. This is public information. Ariz. Op. Atty. Gen. No. I96-012 (Ariz.A.G.) Err on the side of caution and keep public discussions in the open meeting. 52
Executive Session Purposes 6. Discussion, consultation re: interstate, international, or tribal negotiations. 7. Discussion or consultations to consider and instruct on negotiations for purchase, sale, or lease of real property. Actual negotiation, not a discussion or recommendation. Op.Atty.Gen.No. I80-159 53
Confidentiality of E-session Minutes and discussions must be held confidential. Except from members of the body and certain other limited exceptions. Best Practice Tip: Keep these minutes apart from the public session minutes to avoid accidental disclosure but remember where you keep the confidential minutes! 54
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. 55
Meeting Held in Violation of OML: All legal action is null and void. See A.R.S. 38-431.05(A) 56
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. 57
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. 38-431.06 58
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. 59
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 60
Hypothetical A complaint is filed against the city council alleging the notice and agenda wasn t filed within 24 hours because the internet posting didn t work but the notice and agenda were properly posted in the designated place listed in the disclosure statement. How do you respond? Is there a violation? What if the posting was online but not at the physical designated location? 61
Hypothetical You are the enforcer! Facts: A complaint is filed alleging the council members were emailing each other about an issue voted on the following week. What facts do you need to determine if a meeting occurred? What other questions do you ask in order to determine if a violation occurred? 62
Arizona Agency Handbook http://www.azag.gov/agency_handbook/ Agency_Handbook.html Chapter 7 Open Meetings 63
Arizona Ombudsman Citizens Aide http://www.azoca.gov/open-meeting-andpublic-records-law/open-meetings/ Downloadable booklet, FAQs and Pending Legislation Updates 64