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City Charter Amendment Resident Advisory Committee Training Open Meeting Law A.R.S. 38-431 et. seq. o A.R.S. 38-431.09 - Public's business must be done in public o Properly noticed meetings o Posted agenda o Quorum must be present for a meeting to be held o 24 hours notice except for an actual emergency Public Bodies All Public Bodies must comply with the Open Meeting Law "Public Body" includes: o City Council o Boards and commissions of the City o All corporations and other instrumentalities whose boards of directors are appointed or elected by the City Council (i.e., Municipal Property Corp.) o All quasi-judicial bodies of the City (i.e. Board of Adjustment o Standing, special or advisory committees or subcommittees of the City (i.e. Council subcommittees) Public Bodies do not include: o Staff meetings o Staff appointed committees that advise staff o Single department head What is a Meeting? A meeting occurs ANY TIME a quorum of the public body discusses, proposes, or takes legal action. Can be a traditional meeting or an electronic meeting. How Do We Have a Legal Meeting? Agenda MUST include: o Date, time and place o Description of matters to be discussed or decided (or where an agenda can be obtained) Agenda MAY include: o Unscheduled public appearances o Report on current events from chair members and staff person in charge Post an agenda in the official posting places and website at least 24 hours in advance. Public Comment o Citizens may only address the public body on items on the agenda o End of meeting for 15 minutes total time o Individual speakers up to 3 minutes o Not a dialog and staff may follow up on public questions and comments Employment, discipline or resignation of public officer, appointee or employee Obtain legal advice Contract negotiations or litigation When Can a Public Body Meet in Private? Negotiations for purchase, sale or lease of real property Discuss records exempt by law from public inspection Employee organization negotiations Executive Sessions - A.R.S. 38-431.03 Discussion regarding security and critical infrastructure Executive Sessions o Minutes must be kept but are confidential from inspection (except in the case of an investigation) o No legal action may be taken in executive session o May instruct attorneys regarding contracts, litigation, and settlement discussions o May instruct representatives regarding purchase of real property o May instruct representatives regarding negotiations with employee organizations Can we discuss matters not on the agenda? o No o Seriously, No o Not if we do not want trouble o Maybe, if it is an Actual Emergency o All of the above Minutes Description of matters discussed, all legal actions proposed, discussed or taken, including members who propose each motion and the vote of each member Names of persons making statements or presenting to the public body The official record of meetings. Members present or absent Date, time and place Draft minutes must be available within 3 working days and must include: Discuss and/or take action on items not listed on agenda Attending other meetings Serial meeting—a series of gatherings of less than a quorum Forwarding or reply all to emails Social Media and A.R.S. § 38-431.09 Not providing sufficient detail on an agenda Open Meeting Pitfalls Serial Meetings or Splintering the Quorum It is not necessary for a public body to communicate simultaneously in order for a meeting to occur. A series of gatherings of less than a quorum MAY constitute a meeting if City business is discussed. This means that if a councilmember talks to two other councilmembers about City business and then one of those councilmembers talks to another councilmember about the same thing, a meeting has taken place but no notice or agenda so OML violation. Under A.R.S. § 38-431.09, you may express your opinion or discuss an issue with the public personally, through the media, or through technological means, IF… The opinion or discussion is not principally directed at or directly given to another member of the public body There is no concerted plan to engage in collective deliberation to take legal action 1 2 Emails When you use e-mails to discuss City business, care must be taken not to violate the Open Meeting Law as e-mails can easily create a meeting inadvertently by: o An e-mail to a quorum of the public body proposing legal action o An e-mail exchange of facts and/or opinions if it is foreseeable that the topic may come before the public body for action o Forwarding or responding to e-mails involving a majority of the council — be careful of chain e- mails o REMEMBER DO NOT REPLY ALL! It is NOT a violation of the Open Meeting Law when there is a gathering of a quorum of the public body, i.e., a wedding, but DO NOT talk about City business. Members of public bodies should not post or comment on each other’s website or municipal websites where those comments could be interpreted as proposing legal action or discussion or deliberation/decisions on City issues. These types of postings would violate the Open Meeting Law because they would be “meetings”. Social Media and Social Events What Happens if We Violate the Open Meeting Law? A.R.S. 38.431.07 o Actions taken are null and void o The Attorney General may investigate o A public official may be removed from office o $500/day civil penalty o Costs for enforcement may be assessed o Public monies can not be used for legal counsel Conflict of Interest How Do You Know if You Have a Conflict of Interest? Pecuniary Interest—will you gain or lose something of value from your decision? If so, is your pecuniary interest remote or substantial? If it is substantial, then you have a conflict! How Do You Know if You Have a Conflict of Interest? Common Remote Interests A.R.S. 38-502(10) o The interest of a non-salaried officer of a non-profit corporation o The interest of an attorney of a contracting party o The ownership of less than three percent of the shares of a corporation for profit o The interest of a public officer or employee in being reimbursed for his actual and necessary expenses incurred in the performance of official duty o The interest of a recipient of public services generally provided by the City o The interest of a member of a trade, business, occupation, profession or class of persons consisting of at least ten members which is no greater than the interest of the other members of the trade, business, occupation or profession or class of persons Fill out a disclosure form What To Do if You Have a Conflict of Interest? No discussion or action Make conflict known Avoid any appearance of influence Conflict of Interest Law Violations A.R.S. 38-510 o Civil suit may be filed o Court may award attorney’s fees o Class VI Felony—intentional or knowingly o Class I Misdemeanor—reckless or negligent o Forfeiture of office o Cancellation of contract – A.R.S. §38- 511 Public Records What is a Record? o Library or museum material solely for reference or exhibition o Extra copies for convenience or reference o Stocks of publications for sale or distribution What is not a Record? o Evidence of the organization and all of its decisions, procedures, functions, and operations o Made or received by any governmental agency o Informational or historical data o Any medium or format City Council Employees of Public Officers and Public Bodies Boards and Commissions, including Subcommittees Who Has to Comply with Public Records Laws? Boards and Commissions Records Member Records o Applications to Serve o Oaths of Office o Policy Acknowledgements Meeting Records o Agendas o Supporting Documentation for Items o Minutes o Meeting Audio/Video Recordings o Speaker and Comment Cards Email is a Public Record It is important to understand that electronic communications are public record and may be provided in response to a public records request or a subpoena. Records are categorized by their content and not the format or medium in which they are created. Questions?