ARIZONA'S OPEN MEETING LAW 2017 Presented by Cedric Hay Deputy Pinal County Attorney 5/13/2019

Why do we have Open Meeting Laws? To protect the public. To avoid decision-making in secret. To promote accountability by encouraging public officials to act with transparency. To protect public officials. To avoid being excluded (notice). To prepare and avoid being blind sided (agenda). To accurately memorialize what happened (minutes). Maintain integrity of the government. Better informed citizenry. Build trust between government and citizenry. 5/13/2019

As a result… All meetings of any public body shall be public meetings. A.R.S. § 38-431.01(A) All persons desiring to attend shall be permitted to listen to the deliberations and proceedings. Notices and agendas shall contain such information as is reasonably necessary to inform the public of the matters to be discussed. A.R.S. § 38-431.02(H) 5/13/2019

Penalties for Violations Individual,AG or County Attorney file suit Civil penalty up to $500 Pay individual’s Attorneys fees and costs Removal of the public officer Assess attorney fees and costs against the removed public officer A.R.S. § 38-431.07(A) 5/13/2019

WHAT IS A MEETING Discuss Propose Deliberate Take legal action The gathering, in person or through technological devices, of a quorum of members at which they: Discuss Propose Deliberate Take legal action A.R.S. § 38-431(4) Quorum = Majority of the public body – A.R.S. . § 1-216(B) 5/13/2019

A meeting can be… A discussion on Facebook Email correspondence Twitter dialogue Open Meeting laws are designed to protect against the APPEARANCE of impropriety Be aware of the unintentional quorum: grocery store, parking lot, other events 5/13/2019

What is required under the Open Meeting Law? Notice Agenda Public’s Rights Minutes 5/13/2019

Notice of Meetings When Where Post regularly scheduled meetings for a specific calendar period on the website. A.R.S. §38-431.02(F). Provide at least 24 hrs. notice and Conspicuously post a statement on their website stating WHERE all meeting Notices will be posted, including the physical and electronic locations … as is reasonable and practicable as to all meetings A.R.S. §38-431.02(A) through (K). 5/13/2019

Notice of Meeting AND AGENDA Public body can post agenda on website with Notice of meeting. Example: Pursuant to A.R.S. §38-431.02, Notice is given that the Workforce Investment Board will hold a public meeting on [date, time, and exact location]. The agenda for the meeting is: [Insert agenda] OR state: A copy of the agenda for this meeting will be available at the [name building] at least 24 hours before the meeting. 5/13/2019

EXCEPTION ACTUAL EMERGENCY Within 24 hours of holding the meeting, Post a notice and agenda explaining that the emergency meeting was held and describing the actions taken. The minutes must show the nature of the emergency. NOTE! “I forgot” is NOT an emergency! 5/13/2019

AGENDA The agenda must be available to the public at least 24 hours before the meeting. Notice shall include an agenda. A.R.S. § 38-431.02 (G) The agenda must contain information reasonably necessary to inform the public of the matters to be discussed, considered, or decided. The Board can discuss, consider, or decide ONLY those matters listed on the agenda and other matters related thereto. A.R.S. §38-431.02 (H) 5/13/2019

Common AGENDA Problems Using language a regular person would not understand Legalese Acronyms Technicalese Using general categories without details “New Business” “Old Business” “Personnel” “Reports” 5/13/2019

Common AGENDA Problems Failure to Indicate “discussion,” “consideration” and/or “action.” EXAMPLES: Workforce Investment System Policy INSTEAD Discussion and possible action regarding Workforce Investment System Policy One-Stop Operators Discussion and consideration of agreement relating to the selection of the One-Stop Operators. 5/13/2019

Public’s Rights The Public has right to: Attend Listen Tape record Videotape Public has no right to: Speak Disrupt (Note: Public body cannot require attendees to identify themselves or sign-in (unless they are making a presentation.) 5/13/2019

Calls to the Public Optional An open call to the public is an agenda item Allows for public to address the public body on topics of concern within the public body’s jurisdiction The topic does not have to be specifically included on the agenda. Ariz. Att’y Gen. Op. I99-006 5/13/2019

Calls to the Public Public body may limit speaker’s time. Public body may require speakers on the same side with no new comments to select spokesperson Public body may set ground rules: Civility Language Treat everyone the same 5/13/2019

Calls to the Public Public Body cannot dialogue with the presenter or collectively discuss, consider, or decide an item that is not listed on the agenda. Public Body’s Response is limited to: Direct staff to study the matter Ask that a matter be placed on a future agenda Respond to criticism 5/13/2019

Executive Session Upon a public majority vote of a quorum, the governing Board may hold an executive session for 7 purposes. A.R.S. § 38-431.03 (A) If it doesn’t fit into one of the 7 areas, it CANNOT be discussed in executive session! 5/13/2019

Executive Sessions Executive sessions allowed for: Personnel matters Confidential records Legal advice Litigation, contract negotiations, and settlement discussions Negotiations with employee organizations International, interstate and tribal negotiations Purchase, sale or lease of real property 5/13/2019

Executive Sessions Agenda must include the statutory section authorizing the executive session. Always instruct attendees regarding cofidentiality once in executive session. Agenda must provide a general description of the matters to be discussed or considered. 5/13/2019

NO VOTING! No legal action can take place in executive session, SO . . . You can’t vote to come out of executive session!! So, how DO you get out? The chair announces that the Board is back in open session and directs that the public be informed that the Board is back in open session. 5/13/2019

Minutes A.R.S. §§ 38-431.01(B)(C)(D) and 431.03 (B) Public bodies must take meeting minutes of all meetings, including executive sessions. May be recorded or written Permanent records must be on paper Must be available three working days after meeting 5/13/2019

TROUBLE These things can get you in trouble during a meeting: Whispering to other Board members Passing notes Talking to other Board members while holding a hand over the microphone Texting Even if it isn’t a violation, it sure looks like one! It’s all about appearances. 5/13/2019

E-MAIL DON’T’s Don’t use e-mail among a quorum. Don’t forward an e-mail to other Board members. Don’t send a copy of a reply to other Board members. 5/13/2019

ONE-WAY COMMUNICATION May propose agenda item. Example: Discuss One-Stop performance at next meeting. MUST NOT propose legal action outside of a noticed meeting. Example: Discuss termination of One-Stop provider at next meeting. 5/13/2019

PLEASE DON’T …begin or continue discussions with a quorum of Board members before or after the meeting. …talk to other Board members sequentially regarding their opinions on an issue …secure promises to vote a certain way prior to the meeting 5/13/2019

Violations of the Open Meeting Law – reality check Legal Action taken during a meeting held in violation of any provision of the open meeting law is null and void unless ratified. Contact legal counsel to determine if ratification is necessary. 5/13/2019

Ratification Ratification must occur within 30 days of the time the Board knows or should have known of the need to ratify its actions. These meetings must be noticed at least 72 hours before the meeting. Ratification packet must be prepared and available to the public for at least 72 hours before the meeting. A.R.S. § 38-431.05 (B) 5/13/2019

REMEMBER IF A QUORUM IS PRESENT AND IT DOES ANY OF THE FOLLOWING, IT IS A MEETING AND MUST BE PROPERLY NOTICED Discuss Propose Deliberate Take Legal Action 5/13/2019

RESOURCES Arizona Agency Handbook, Chapter 7 Arizona Ombudsman Website: www.azoca.gov 5/13/2019

THANKS! Thank you for your service! Thank you for your time and attention QUESTIONS? Cedric.Hay@pinalcountyaz.gov 5/13/2019