Legal Corner: Are Changes Coming to Arizona's Open Meeting Law? What You Need to Know
Christina Estes-Werther, League General Counsel
During this legislative session, there have been a number of discussions about the importance of transparent and open government and one of these could directly impact how cities
and towns conduct their public meetings. This article will present an overview of legislation proposing changes to the Open Meeting Law and highlight some of the basic provisions
of the current law (Arizona Revised Statutes, Title 38, Chapter 3, Article 3.1). Since this article is not designed to provide a comprehensive analysis, additional resources are
listed at the end of the article.
Proposed Legislation
Senate Bill 1435 redefines "meeting" by removing discussion, deliberation and proposal of legal action from the definition and replacing them with "the conducting of the official
business of a public body at which legal action is taken." This proposal has generated concerns that the public would no longer hear or understand how officials arrived at a
particular decision. Proponents of the measure have indicated it would provide officials who serve on small public bodies with greater flexibility to learn about an issue from
a colleague prior to the public meeting.
Current law prohibits a quorum of a public body (majority of members) from gathering together or having a discussion about a matter outside of a properly noticed public meeting. For
example, three members of a five member board could not meet outside of a public meeting and discuss an issue that would be brought before them. However, under the proposed bill,
these three members could discuss the matter privately as long as the final vote on the matter was conducted at the public meeting.
As of the date of this publication, S.B. 1435 has not been heard in committee and it is unknown whether this legislation will be enacted, but it has led to a robust discussion
about the purpose of the open meeting law and provided an opportunity to highlight some of the provisions of the current law.
Legislative History
Arizona's Open Meeting Law was enacted in 1962 and has been amended over the past 50 years to increase the openness of public meetings. As technology has advanced, the Open Meeting
Law has added provisions such as the requirement to post notices, agendas and minutes on the public body's website, and the Attorney General's Office has issued guidance on the use
of electronic communications between members of the public body.
Despite the long history of the Open Meeting Law, questions frequently arise about its application, especially for newly elected or appointed officials who might be unfamiliar with
the law's requirements. And the public is not always certain what constitutes a violation.
When reading the requirements of the Open Meeting Law, it is helpful to understand the Legislature's intent, which is outlined in their declared policy statement in A.R.S. § 38-431.09:
"It is the public policy of this state that meetings of public bodies be conducted openly and that notices and agendas be provided for such meetings
which contain such information as is reasonably necessary to inform the public of the matters to be discussed or decided. Toward this end, any person or entity charged with the interpretations
of this article shall construe this article in favor of open and public meetings." (Emphasis added).
This statement guides the public body when structuring a city or town council meeting, advisory group, subcommittee or work session and offers a reminder that any ambiguity in the law should
favor transparency to the public.
As the discussion about the policy implications of the introduced legislation continue this session, it's helpful to break down the basic elements of the current Open Meeting Law.
What is a Meeting?
A meeting is a gathering of a quorum (majority) of members of a public body at which they discuss, propose or take legal action, including deliberations. The Attorney General's Office has
issued guidance in the Arizona Agency Handbook that a meeting includes all discussions, deliberations, and proposals among a majority of the members of a public body regarding matters that
may foreseeably require final action or a final decision by the governing body. This provides general instruction to broadly interpret the open meeting law in order to avoid any potential
violations.
Over time, the League has advised city and town councils to avoid any situation where a majority of the council may be in the same location. Many cities and towns in Arizona-particularly
small, rural ones-find that to be a challenging task since there may be a limited number of public gathering locations, such as restaurants or coffee shops.
When an event is likely to attract a quorum of council members, such as a service club meeting, a high school football game or a wedding, a courtesy notice is often posted informing the
public that a quorum of the council may be present at such an event, but that no city business will be conducted and no legal action will be taken. In the case of the Open Meeting Law,
perception is often the most important element so it is better to provide notice of possible quorum gatherings rather than allow the public to speculate that a majority of the council is
violating the law.
Preparing for a Meeting
The first step to promote an open meeting is to post a disclosure statement of where all meeting notices and agendas will be posted, both physically and electronically, so the public knows
where to find this information. For cities and towns, this posting is accomplished by including a statement on the public body's website or utilizing the League's website along with any
other additional notice that is reasonable and practicable. For physical posting of the meeting notice and agenda, post them in a place where the public has reasonable access during normal
business hours. Placing the notice and agenda in hard to find locations may be construed as defeating the purpose of the Open Meeting Law.
Agendas
An agenda must be posted at least 24 hours before the meeting although there are exceptions for an emergency if the meeting meets certain requirements. A common pitfall is to miscalculate the
24-hour period and forget that Sundays and other holidays are excluded. A public body may count Saturdays if the public can access the notice and agenda at the physical locations. It's
important to note that revisions to the agenda can be made but the final agenda must comply with the 24-hour requirement.
When writing an agenda, A.R.S. § 38-431.02 requires a city or town to list the "specific matters to be discussed, considered or decided at the meeting." In practical terms, this means that the
agenda should avoid general descriptions that do not provide sufficient information for the public to discern the matter to be discussed.
Once the meeting begins, it's important to follow the agenda items. This is an important matter because it assures the public that what is posted on the notice and agenda are the only matters that
will be discussed. If a member begins to stray from the agenda item, it is imperative that the member return to the original matter and the public body can include the new item on the next agenda
for a full discussion. The public body may include a call to the public, but it is not required.
In 2000, the Legislature created the ability for a public body to present a current event summary as long as no legal action is taken on matters included in the summary. While the summary must be
listed on the agenda, it does not have to include the specific matters that will be presented in the summary. This option provides for the ability to update members without having to create long
agenda items that will not involve deliberation or discussion.
Use of Executive Sessions
Arizona law allows a public body to meet outside of an open meeting for an executive session when confidentiality outweighs the public's right to know the details of a matter. Statute outlines seven
areas that can be discussed in executive session: personnel matters; discussion of public records confidential by law; legal advice from the public body's attorney; discussion with the public body's
attorney regarding certain types of contracts; discussions regarding labor negotiations; discussions relating to international, interstate and tribal negotiations; and discussions relating to real
property.
The public body must have a majority vote to move into an executive session for one of the listed statutory purposes and the agenda must have specified that the item was subject to an executive
session. Minutes must still be taken although they are confidential with the limited exception of viewing by the court, the auditor general when conducting an audit or by the county attorney or
attorney general if investigating alleged violations.
While executive session items are confidential, if discussion is expanded outside the scope of these exceptions, the public body should move back into an open session. For example, if a public body
is receiving legal advice from their attorney but then begins to weigh the merits of the issue, the public has a right to hear those deliberations in an open meeting. City of Prescott,
166 Ariz. 480, 485, 803 P.2d 891, 896 (1990). The executive session exceptions are not meant to be used to circumvent the Open Meeting Law. Any action resulting from the executive session must
be taken in open session.
When going into an executive session, practical tips include ensuring that only appropriate personnel are present in the room, the public has taken their belongings as they exited and no recording
devices remain in the room. And it is always helpful to remind the public body members that the information shared in executive session is confidential.
Violations
Following the statutory requirements and best practices leads a public body to success. But mistakes happen and public bodies should know what steps to take if a problem arises. Arizona law specifies
that all legal action taken by the public body is null and void if there is a violation of the Open Meeting Law.
Through a process known as ratification, a public body may approve the legal action taken in violation. A specific process must be followed including the posting of a notice of the meeting that includes
a description of the action to be ratified, a clear statement that the public body proposes to ratify and how the public can obtain a detailed written description within 72 hours before the public meeting
to ratify the legal action. The written description must be included as part of the minutes of the meeting where the legal action is ratified. This ratification meeting must occur within 30 days of the
discovery of the violation or when the discovery should have been made.
Violations may result in an investigation and litigation by the attorney general or the county attorney. A person who violates the Open Meeting Law or knowingly aids or agrees to assist in a violation
is subject to civil penalties and reasonable attorney fees by the public body. The most serious repercussion is removal of the public officer if the person had intent to deprive the public of information
in violation of the Open Meeting Law.
Know Your Resources
While there is a lot to know about Open Meeting Law there are tools available to help you navigate the law. The first and most important resource is your attorney! He or she will have the knowledge and
expertise about your city or town council and the types of issues that your community addresses on a regular basis.
Other resources can be found on the Arizona Ombudsman Citizens' Aide website at this link and the
Arizona Agency Manual published on the Attorney General's Office website at this link.
Additionally, the League is offering an Open Meeting Law Refresher Training on April 29, 2015 to provide more detail on any legislation impacting the Open Meeting Law and answer questions that you face in
your role as a public servant. To sign up for the League's upcoming Open Meeting Law Training,
click here.
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