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HomeMy WebLinkAboutPackets - Council Packets (64)Open Meeting Law Conflict of Interest ARIZONA’S OPEN MEETING LAW AND CONFLICT OF INTEREST TRAINING Kelly Y. Schwab, Curtis, Goodwin, Sullivan, Udall & Schwab, PLC, Town Attorney Public Records 1 Part I. Open meeting law 2 Public’s business must be done in public. What is meant by the statement--Arizona is a Sunshine State? Only in limited circumstances—What are some examples? Properly noticed meeting with a posted agenda—How far in advance must agenda be posted? 24 Hours—except for an actual emergency. Lawful Meeting if a quorum is present! Open Meeting Law Personnel Legal Advice Litigation Purchase of Real Property Negotiations with Employee Organizations Confidential Records Private Public 3 Sounds good, right? But what actually is a meeting? A meeting occurs ANY TIME a quorum of the public body discusses, proposes, or takes legal action. Traditional Meetings Electronic Meetings 4 What is a serial meeting? Less than a quorum present? Enough to constitute a quorum? Later the same discussion is had with other members of Council, the board, commission or committee? Pitfalls in OML 1. Serial Meetings 5 You may have just had a “Serial Meeting” Remember: A series of gatherings of less than a quorum MAY constitute a meeting if town business is discussed or proposed. 6 Idea seems simple, but technology complicates things… 7 Lesson: Be careful responding to emails. Using “Reply All” & Forwarding Emails may lead to OML trouble. 8 I want to send an email. Will it propose legal action? STOP! Does it contain facts or opinions that may come before the public body for action? Sent to 3 or more members of the public body? START You may have an OML Violation. No No Yes Yes Pitfalls in OML 2. Sending Emails No You probably do not have an OML Violation. Yes 9 Pitfalls in OML 3. Social Media (illustrations of emerging issues) OML problems? You post comments about the public meeting on your private Facebook page—where you just happen to be “friends” with other members of your public body. 10 Not necessarily. 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… (1) the opinion or discussion is not principally directed at or directly given to another member of the public body & (2) there is no concerted plan to engage in collective deliberation to take legal action. 11 Is anyone making a proposal at the meeting that will come before your board for consideration? Is a quorum of your board or commission present? You have a potential OML Problem. Pitfalls in OML 4. Attending Other Meetings Attorney General Opinion 12 Options? Don’t attend other public meetings; Don’t make proposals at other public meetings; or Notice the meeting as if it’s your own. 13 Take away?: Be mindful of informal discussions with other members of your public body. Text messages, emails, and comments made at other public meetings may be a “serial meeting.” But merely reading a media comment from another member is not a meeting. 14 What do we do to have a legal meeting? Post an agenda in the Town’s Official Posting Places and on the website If the website is down, can a meeting still be held? yes How far in advance does the agenda have to be posted? 24 Hours: Except in the case of an actual emergency! Calling a Meeting 15 Actual Emergency Exception (applicable in very limited circumstances).. In Sum: Unless a flood or fire is racing through the Town, you probably do NOT have an actual emergency. 16 What must be included on an agenda? Date, Time and Place Matters to be discussed or decided (or where a detailed agenda can be obtained). Agenda Options Call to the Public: Citizens MAY only address the public body on issues within their jurisdiction Public body MAY NOT discuss the matter At conclusion, members MAY respond to criticism, ask staff to review a matter, or request a future agenda item Other Communications: Report On Current Events from chair, members, and staff person in charge NO DISCUSSION! 17 Can we discuss matters not on the agenda? 18 Multiple Choice No. Seriously, No. Not if we don’t want trouble. Maybe, if it’s an Actual Emergency. All of the above. 19 Date, time and place Members present or absent Names of persons making statements or presenting to the public body Description of matters discussed & all legal actions proposed, discussed or taken, including members who propose each motion Minutes are the official record and must include: DRAFT MINUTES must be available within THREE working days. 20 Violations ACTIONS taken are NULL and VOID. The Attorney General INVESTIGATES. 21 Violations PENALTIES… $500/day civil penalty REMOVAL of an officer Assess the officer with ALL COSTS awarded to the plaintiff MAY NOT spend public monies for legal counsel 22 Part II. Conflict of Interest 23 Do I have a “pecuniary” interest? Do I have a conflict of Interest? You have a pecuniary interest when you stand to gain or lose something of value from the decision No Yes Is my Interest Remote or Substantial? No Conflict Remote CONFLICT! Substantial 24 What do I do if I have a substantial interest? DO NOT take part in the discussion or action MAKE THE INTEREST KNOWN in public records Complete a PUBLIC OFFICER DISCLOSURE form 25 What happens if I violate the conflict of interest laws? CIVIL SUIT to enforce the law Court MAY award reasonable attorney’s fees Class VI Felony for INTENTIONALLY or KNOWINGLY violating the law Class I Misdemeanor for RECKLESSLY or NEGLIGENTLY violating the law Person found guilty might be required to FORFEIT his PUBLIC OFFICE 26 Part III. Public records 27 Courts have articulated three definitions. What is a public record? 1. A record made by a public officer in pursuance of a duty – purpose to disseminate information or memorialize official transactions. 2. Record required by law or necessary in discharge of duty 3. Written records of transactions of a public officer in office, which is a convenient and appropriate method of discharging duties (whether required or not). General Rule: Public Records must be produced promptly upon request. Each request must be reviewed to determine if the records are exempt from disclosure or in need of redaction. 28 E-Mail? Rule: E-mails received or sent by you are public records if they relate to your duties as a member of a public body (Council, Board, Commission, Committee). In general: Assume your e-mails are public records, even if they are prepared on your personal computer. See Attorney General Opinion. Still, a document which is WHOLLY PERSONAL in nature is not a public record. See Griffis v. Pinal County, et al. 29 Is the record confidential by statute? The record must be disclosed Are there strong reasons not to disclose & you have consulted with the Town attorney? The record may be withheld: Aggrieved party may appeal to superior court/court may award fees if party substantially prevails. Can I deny Access to the Record? YES YES NO NO 30 Questions 31