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HomeMy WebLinkAboutPackets - Council Packets (70)Arizona Open Meeting Law Training on • Open Meeting Law • Conflict of Interest & • Public Records Curtis, Goodwin, Sullivan Udall & Schwab, P.L.C. Town Attorneys Table of Contents PART I. ARIZONA OPEN MEETING LAW 1 1. What is the Open Meeting Law? 1 2. Is my board/commission/committee a `public body" under the Open Meeting Law? 1 3. What is a meeting? 1 4. If my board/commission/committee is going to have meeting, what do we have to do? 1 5. Can we discuss matters not on the agenda? 2 6. May there be a "communications from citizens" on the agenda? 2 7. May the agenda include an item permitting individual members of the board/commission/ committee to make a statement or report (without discussion) at the end of the meeting? 2 8. Does my board/commission/committee have to keep minutes of the meetings? 2 9. What has to be included in minutes? 2 10. Do our minutes have to be posted on a website? 3 11. Can my board/commission/committee meet in private? 3 12. If we have an executive session, do we have to keep minutes? 4 13. Can I use email to communicate with my fellow board members? 4 14. Can I express my opinion to the news media or discuss an issue with the public if I know other board members may read or hear my comments? 4 15. What happens if my board/commission/committee violates the Open Meeting Law? 4 PART II. CONFLICT OF INTEREST 6 1. How do I know if I, as a member of a public body, have a conflict of interest? 6 2. If I determine I have a pecuniary interest in a decision, then what? 6 3. If I determine that my pecuniary interest does not fit into one of the above exceptions, then what? 7 4. If I have a substantial interest in a decision or matter coming before my board/ commission/ committee, what should I do? 7 5. What happens if I violate the conflict of interest laws? 7 PART III. PUBLIC RECORDS 1. What is a public record? H File: 1809-009-0000-0000; Desc: Open Meeting Law Training Handout 8-25-2015, Doc#: 238063v I E 8 2. What is the general process for producing public records? 3. Are email or other electronic messages public records? 4. When might the Town deny a request to view a public record? EXHIBIT 1 - PUBLIC OFFICER DISCLOSURE ii Pile: 1809-009-0000-0000, Desc: Open Meeting Law Training Handout 8-25-2015, Doc#: 238063v PART I. ARIZONA OPEN MEETING LAW It is the policy of the State of Arizona that the public's business will be conducted in public. The State Legislature has adopted a law, known as the "Open Meeting Law ", applicable to public bodies and public officers. The following are typical questions asked about the Open Meeting Law. 1. What is the Open Meeting Law? The policy of the State is that the public's business should be conducted in public. The Open Meeting Law contains the rules that public bodies have to follow to assure that this policy is carried out. 2. Is my board/commission/committee a "public body" under the Open Meeting Law? Yes. All boards, commissions and committees appointed by the Mayor or the Council are "public bodies" governed by the Open Meeting Law. According to the Attorney General's office, a public body also includes a committee appointed by the Manager if it is the intention that the committee will provide recommendations to the Council. On the other hand, a committee appointed by the Manager to provide advice only to the Manager would not be a "public body." If a Department Director appoints a committee to research and advise him or her, the committee is not a "public body." 3. What is a meeting? Any time a quorum of the public body discusses, proposes or takes legal action related to municipal business, a meeting is being held. "Legal action" includes collective decisions, commitments or promises of the public body and is not necessarily a formal vote. A series of gatherings of less than a quorum can result in a meeting, especially if a consensus is reached. The gathering of the quorum may be held with one or more members participating by telephone or video conferencing. A meeting may also result from discussions had by e-mail if a quorum is involved and a "discussion" is taking place about municipal business. Great care should be taken in the use of e-mail to be sure you do not violate the Open Meeting Law. 4. If my board/eommission/committee is going to have meeting, what do we have to do? The law requires that public bodies of the municipality must file a statement with the Clerk or Mayor's Office stating where public notices of their meetings will be posted and on the internet if the municipality has an internet site. The law also requires that the public body "shall give such additional public notice as reasonable and practical as to all meetings." In addition, meetings may not be held without at least 24 -hours' notice to the members of the public body and to the general public. I File: 1809-009-0000-0000; Desc. Open Meeting Law Trnining Handout 8-25-2015; Doc#: 238063A An agenda must include the date, time and place of the meeting. It must also include an agenda of matters to be discussed or decided at the meeting or information on how the public may obtain a copy of the agenda. There is an exception for an "actual emergency," in which case, the meeting may be held without the required 24-hour notice so long as the notice is posted within 24 - hours declaring that the emergency meeting has been held. In that case, the notice must include a discussion of the specific matter considered/decided at the meeting. There are very few circumstances that qualify as an "actual emergency" and, unless a flood or fire is racing through the municipality that absolutely requires your board, commission or committee to hold a meeting related to that flood or fire, you probably do not have an emergency that would qualify under the Statute. 5. Can we discuss matters not on the agenda? No, unless there is an "actual emergency" (see above). 6. May there be a "communications from citizens" on the agenda? Yes, but the member of the public who is speaking is only allowed to address the public body on an issue within the jurisdiction of the public body. The public body may not discuss the matter raised by the member of the public but, at the conclusion of the open call to the public, individual members of the public body may respond to criticism made by those who have addressed the public body, may ask staff to review a matter, or may ask that a matter be put on a future agenda. May the agenda include an item permitting individual members of the board/commission/committee to make a statement or report (without discussion) at the end of the meeting? Yes. The law does permit the public body to include on the agenda an item to "Report on Current Events" by the chair, board/commission/committee member, and Department Director [or other principal staff person in charge of the board/ commission/committee]. At that time, the individual may make a report to the public and public body. However, the public body may not discuss or take legal action on the matter unless the matter has also been listed on the agenda. 8. Does my board/commission/committee have to keep minutes of the meetings? Yes. Your board/commission/committee must take minutes. 9. What has to be included in minutes? For meetings other than executive sessions (see below), minutes must include: a. The date, time and place of the meeting. b. The members of the public body recorded as either present or absent. 2 File: 1809-009-0000-0000; Dese: Open Meeting Law Training Handout 8-25-2015; Doc#: 238063v I C. A general description of the matters discussed. d. An accurate description of all legal actions proposed, discussed or taken and the names of members who propose each motion. The minutes shall also include the names of the persons, as given, making statements or presenting materials to the public body and a reference to the legal action about which they made statements or presented material. The minutes must be open to public inspection three working days after the meeting. If there is a recording, the recording can be made available and the written minutes can follow later. 10. Do our minutes have to be posted on a website? Municipalities that have an internet site and a population of more than 2,500 persons must post minutes on the city or town's website. The Town of Clifton does not have a website. It is, accordingly, not required to post minutes online. However, minutes must still be available for public inspection three working days after the meeting. Draft minutes meet this requirement. 11. Can my board/commission/committee meet in private? Yes, if it is for one or more of the specific purposes listed in the statute for which public bodies may meet in private. Those purposes are: a. Discussion of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of the public officer, appointee or employee. Generally, your board/commission/ committee will not have these discussions since you have no jurisdiction to appoint, promote, demote, or take other employee actions. b. Discussion of records exempt by law from public inspection. C. Discussion or consultation for legal advice with the attorney or attorneys of the public body. d. Discussion or consultation with the attorneys of the public body in order to consider its position and instruct its attorneys regarding the public body's position regarding contracts that are the subject of negotiations, pending or contemplated litigation or settlement discussions conducted in order to avoid or resolve litigation. C. Discussion with the public body's representatives regarding negotiations with employee organizations regarding salaries, salary schedules and compensation. Discussion for international or interstate negotiations or with members of a tribal council of an Indian reservation located within or adjacent to the municipality. File: 1809-009-0000-0000; Dust: Open Meeting Law Training Handout 8-25-2015; Doc#: 238063vl g. Discussions with the public body's representatives regarding its position on the purchase, sale or lease of real property. Most executive sessions of your board/commission/committee will be for the purpose of receiving legal advice. 12. If we have an executive session, do we have to keep minutes? Yes. However, minutes are kept confidential except from members of the public body that met in executive session and officers, appointees, or employees who are the subject of discussion if the executive session was held for personnel reasons. 13. Can I use email to communicate with my fellow board members? Yes, but with caution. Use of email can constitute a meeting when the email proposes legal acts or when there is an exchange of facts and/or opinions if it is foreseeable that the topic may come before the board for action. For example, the Attorney General's Office cautioned that even a single email—without any responses— could violate the Open Meeting Law if the email is sent to a quorum of the public body and proposes legal action. Moreover, if a majority of the board responds to an email, it can constitute action for an illegal meeting. Be careful in responding to all and of chain emails. Use of emails in this manner can constitute a meeting which has not been properly noticed. 14. Can I express my opinion to the news media or discuss an issue with the public if I know other board members may read or hear my comments? Yes. The Open Meeting Law does not prohibit a member of a public body from voicing an opinion or discussing an issue with the public either at a venue other than a public meeting or through news or social media outlets so long as (1) the opinion or discussion is not principally directed at or directly given to another member of the public body, and (2) there is no concerted plan to engage in collective deliberation to take legal action. Additionally, the Attorney General's Office has released an opinion that a meeting does not occur when members of the public body merely hear or read a comment made by another member of the public body in the media. 15. What happens if my boar&commission/committee violates the Open Meeting Law? The first thing that happens is that any action you took in violation of the Open Meeting Law is null and void. The second thing that happens is that the Attorney General or County Attorney's Office may investigate a complaint alleging a violation of the Open Meeting Law and conduct an investigation. The Attorney General or County Attorney has broad powers to inspect all documents, require any person to submit a report or make a statement and issue investigative demands for production of documents. If a public body or an officer refuses, the Attorney General or County Attorney may go to court to get an order for enforcement. 4 File: 1809-009-0000-0000; Dese: Open Meeting Law Training Handout 8-25-2015; Doc#: 238063v1 Upon a finding that a public officer has violated the Open Meeting Law, a court may impose a civil penalty not to exceed $500 for each violation against the person who violates the article or knowingly aids, agrees to aid or attempts to aid another person in violating the Open Meeting Law. If the court determines that a public officer intended to deprive the public of information, a court may remove the public officer from the office and shall assess him with all costs and attorney fees awarded to plaintiff in pursuing the action. The municipality may not expend public monies to retain legal counsel to provide legal services to the public body or an officer unless the public body takes legal action at a public meeting to approve the expenditure. 5 File: 1809-009-0000-0000; Desc: Open Meeting Law Training Handout 8-25-2015; Doc#: 238063v1 PART II. CONFLICT OF INTEREST 1. How do I know if I, as a member of a public body, have a conflict of interest? The first question you have to ask is whether, in any matter that comes before your board, commission or committee, you have a "pecuniary" interest in the outcome. A pecuniary interest is any matter where you stand to gain or lose something of value from the decision. 2. If I determine I have a pecuniary interest in a decision, then what? You need to determine whether your interest is a "remote interest." A remote interest is any of the following: a. The interest of a non -salaried officer of a non-profit corporation. b. The interest of a landlord or tenant of the contracting party. C. The interest of an attorney of a contracting party. d. The interest of a member of a non-profit cooperative marketing association. C. The ownership of less than three percent of the shares of a corporation for profit, provided the total annual income from dividends, including the value of stock options, from the corporation does not exceed five percent of the total annual income of such officer or employee and any other payments made to him by the corporation do not exceed five percent of his total annual income. f The interest of a public officer or employee in being reimbursed for his actual and necessary expenses incurred in the performance of official duty. g. The interest of a recipient of public services generally provided by the incorporated city or town, political subdivision or State department, commission, agencies, body or board of which who is a public officer or employee on the same terms and conditions as if he were not an officer or employee. h. The interest of a public school board member when the relative involved is not a dependent or a spouse. The interest of a public officer or employee or that of a relative of a public officer or employee unless the contract or decision involved would confer a direct economic benefit or detriment upon the officer, employee or his relative of any of the following: I. Another political subdivision; 6 File: 1809-009-0000-0000; Dese: Open Meeting Law Training Handout 8-25-2015; Doc#: 238063v I 2. A public agency of another political subdivision; or A public agency except if it is the same governmental entity. 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. 3. If I determine that my pecuniary interest does not fit into one of the above exceptions, then what? If your pecuniary interest does not fit one of the above exceptions, then you have a "substantial interest." If the interest fits into one of the above exceptions, you do not have a conflict of interest. 4. If I have a substantial interest in a decision or matter coming before my board/ commission/committee, what should I do? You must not take part in any discussion or action involving that matter. You do not have to resign from the board/commission/committee. However, you must "make known" your substantial interest in the public records. The Clerk has a form for you to fill out that you will keep on file. See Exhibit 1, attached hereto. You must disclose on that form the substantial interest that you have that resulted in the conflict of interest. 5. What happens if I violate the conflict of interest laws? Any person affected by the decision of the public body may commence a civil suit in Superior Court for the purpose of enforcing the law. The Court may award reasonable attorneys' fees to the prevailing party. Intentionally or knowingly violating the conflict of interest laws is a Class VI Felony. Recklessly or negligently violating the conflict of interest laws is a Class I Misdemeanor. A person found guilty might be required to forfeit his public office. File: 1809-009-0000-0000; Desc: Open Meeting Law Training Handout 8-25-2015; Doc#: 238063v1 PART III. PUBLIC RECORDS What is a public record? The State Legislature has not defined the term "public record." However, Arizona courts have articulated three alternative definitions: a. A record made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public or to serve as a memorial of official transactions for public reference. b. A record that is required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law or directed by law to serve as a memorial and evidence of something written, said or done. c. Written records of transactions of a public officer in his office, which is a convenient and appropriate method of discharging his duties and is kept by him as such, whether required by express provisions of law or not. 2. What is the general process for producing public records? Public records must be produced promptly after a request. The Custodian of records will review each request to determine if the records are exempt from disclosure or should be produced. Consultation with legal counsel may be necessary to determine whether certain documents are exempt from disclosure. If the records will be produced, it is important to remember that certain information must be redacted prior to production. See the Town Attorney for more information about redaction. 3. Are email or other electronic messages public records? Mere possession of a document by a public officer or agency does not determine whether it is a public record. A document wholly personal in nature is not a public record. However, emails received or sent by you are public records if they relate to your duties as a member of a public body. In general, you should assume your emails are public records, even if they are prepared on your personal computer. Familiarize yourself with the Town's Electronic Equipment and Services Policy and Town procedures for the preservation and retention of public records when using Town issued electronic equipment and services. 4. When might the Town deny a request to view a public record? Public inspection of governmental records may be denied when: (1) the record is made confidential by statute; or (2) strong countervailing considerations exist that outweigh the public policy favoring disclosure. Privacy interests and governmental/ security interests must be considered. A party may appeal a denial to the Superior Court under A.R.S. § 39-121.02, et seq. The court may award attorney fees and other legal costs that are reasonably incurred in legal action if the person seeking inspection of the public records has "substantially prevailed" in the case. 8 File: 1809-009-0000-0000; Desc: Open Meeting Law Training Handout 8-25-2015; Docll: 238063vl Exhibit 1— Public Officer Disclosure CONFLICT OF INTEREST DISCLOSURE MEMORANDUM TO: Julie K. Bower, Town Clerk TOWN OF ORO VALLEY 11,000 North La Canada Drive Oro Valley, AZ 85737-7016 FROM: DATE: RE: Conflict of Interest Disclosure Pursuant to A.R.S. §§ 38-501 to 38-511 1. Identify the decision, case investigation, or other matter in which you or your relative may have a "substantial interest' under A.R.S. §§ 38-501 to 38-511. 2. Describe the "substantial interest' referred to above. Statement of Disqualification To avoid any possible conflict of interest as defined in A.R.S. §§ 38-501 to 38-511, I will refrain from participating in any manner as identified above. Date Signature E File: 1809-009.0000-0000; Desc: Open Meeting Law Training Handout 8-25-2015; Doc#: 238063v I