Arizonas Open Meeting Law Jessica Gifford Funkhouser Jessica - - PDF document
Agenda Number 5. Arizonas Open Meeting Law Jessica Gifford Funkhouser Jessica Gifford Funkhouser March 3, 2011 Disclaimer The opinions expressed here are my The opinions expressed here are my own Not on behalf of the court or any
The opinions expressed here are my
Not on behalf of the court or any judge For educational purposes, only, and not
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Maximize public access to the Maximize public access to the
Open deliberations and proceedings to
Prevent public bodies from making
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Resolve any uncertainty in favor of
Includes:
Standing committees Special committees Advisory committees Subcommittees 4 Subcommittees
E.g., Finance, Audit & Power Committee E.g., CAGRD & Underground Storage Committee any committee with a Board member that is
A.R.S. § 38-431 Any entity, however designated, officially established
Whose members are appointed for specific purpose
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E.g., ADD Water
Meet and take legal action only in
Exception: may meet in authorized
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“Meeting” is a gathering in person or
of a quorum of a public body
Discuss Propose Deliberate
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Deliberate Take legal action
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Must list the specific matters to be
discussed considered or decided at the meeting
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decided at the meeting
Must contain information reasonably
Public body may discuss, consider or
matters listed on the agenda and
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other matters related thereto
Cannot use general categories without Cannot use general categories without
“New Business” “Old Business” “Personnel” “Announcements” 11
“_______’s Report” “Good of the Order” “Around the Table”
Cannot use any device to circumvent the
“Splintering the quorum”:
Serial communications (verbal, written,
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Polling or Straw vote “Hub and Spokes” of a wheel analogy “Daisy Chaining”
Discussing Deliberating Taking Legal Action Back and forth among a quorum
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On a matter that could foreseeably
Verbal serial communications – going from Verbal serial communications
Arizona Agency Handbook § 7.5.2
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Attorney General’s website www azag gov Attorney General s website www.azag.gov Board members cannot use e-mail to
Cannot use e-mail among a quorum to:
Propose legal action Discuss legal action
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Discuss legal action Deliberate on legal action Take legal action
OML does not prohibit speaking to the
A.R.S. § 38-431.09(B) added in 2008 Ariz. Att’y Gen. Opinion I07-013
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Cannot direct staff to communicate in
Sanctions may be imposed upon any
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Attend Attend Listen Tape record Videotape
NO right to speak
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NO right to speak
Inaccessible Inaccessible
A board member’s house Country club
Inaudible Too small for a controversial meeting
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Too small for a controversial meeting
Recess and resume leave a staff person to give directions post a large notice start the meeting a little later
Optional Optional Time, manner, place restrictions
May limit time (egg timer) May ban Repetition
May require speakers on the same side 20
Prohibit disruptive behavior
Discussing matters not listed on the Discussing matters not listed on the
Public body’s response is limited to:
Direct staff to study the matter Ask that a matter be placed on a future
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Respond to criticism
Personnel matters Confidential records Legal advice Litigation, contract negotiations, and settlement
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Employee salary discussions International, Interstate, and Tribal Negotiations Purchase, Sale or Lease of Real Property
Only a general description is necessary Only a general description is necessary Needs to be more than a statutory citation Should include the statutory section
Defeat the purpose of executive session
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Defeat the purpose of executive session Compromise the legitimate privacy
Compromise the attorney-client privilege
Members of public body Members of public body Persons subject to a personnel discussion Individuals whose presence is
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Clerk to take minutes/run tape Attorney to give legal advice
What happens in executive session What happens in executive session
State ex. rel. Thomas v.
Taking legal action
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No straw vote No show of hands
All votes must take place in public!
Discussion or consultation for legal
Lawyers for the PUBLIC BODY Not lawyers for someone else Not just because lawyer is present
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Avoid factual “updates”
Minutes or recording required
Tape recordings – must be retained
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Minutes or a recording shall be open to
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A.R.S. §§ 38-431(6), 38-431.01(B) and
Subcommittees and advisory
Take written minutes or record all
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Shall have written minutes or a recording
Burden of proof to show no violation in executive
Shall include the following:
Date, time and place of meeting Members present & absent General description of matters considered 30 An accurate description of all instructions given Such other matters as deemed appropriate by the
Shall be kept confidential (A.R.S. § 38-
If in the thick of things = Recess & If in the thick of things = Recess &
Can you resolve the issue and continue? Does the particular OML violation taint
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Within 30 days after discovery of the
Tanque Verde Unified School Dist. v.
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Notice 72 hours before the meeting Notice 72 hours before the meeting
Description of action to be ratified Clear statement that the body proposes to
Information on how to obtain detailed
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Written description includes: Action to be ratified All of the preceding deliberations, consultations and
decisions that preceded and related to the action
Must be included in minutes
Members and any persons who aid, attempt, or
Civil penalty up to $500 for each violation Such equitable relief as the court deems appropriate Reasonable attorneys’ fees
If intent to deprive the public of information:
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Court may remove public officer from office and Charge officer and any person that aided, agreed to
The Arizona Ombudsman – Citizens’ Aide The Arizona Ombudsman – Citizens Aide
Ombudsman website www.azoca.gov Arizona Agency Handbook, Chapter 7,
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Attorney General Opinions –