Legal Corner: Good Governance
Christina Estes-Werther, League General Counsel
At the end of May, attorneys representing cities and towns across the state will gather for the annual Arizona City Attorneys' Conference. The first
day of presentations will focus on "good governance" topics including open meeting law, public records, and ethics.
These topics were identified as important discussion items because local governments routinely address issues relating to open meetings and public
records. Elected officials and staff interface with constituents, agencies, and the press on a daily basis relying on these laws to guide them in
their professional responsibilities. Adherence to the open meeting law ensures that the public has a role in monitoring the process of government
and can hold their elected officials accountable for actions in the community. Access to, and inspection of, public records enables the viewing
of documents that may be relied upon to make critical decisions affecting the city or town. And ethical standards for public officers are paramount
when interpreting these laws to safeguard that decisions are being made in a fair and impartial manner. Here are a few highlights of the first day's
training the attorneys will receive at the conference.
Open Meeting Law
Arizona's Open Meeting Law was enacted in 1962 and has been amended through the years to provide more transparency by requiring public notice of meetings
and agendas and the posting of written minutes to keep the community informed. Additionally, executive sessions out of the public's view are allowed but
narrowly applied to a certain set of circumstances since this type of session is an exception to the intent of the law.
This open principle is embodied 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 for those meetings contain such information as is reasonably necessary to inform the public of the matters to be discussed or decided."
The proper application of the open meeting law achieves the goal of openness that allows the public to hear the discussions and deliberations of their
representatives firsthand and be informed about their decisions.
Public Records Law
Public bodies are required to maintain records that are "reasonably necessary or appropriate to maintain an accurate knowledge of their official
activities and of any of their activities" pursuant to A.R.S. § 39-121.01(B). State law sets forth the underlying policy that public records in
possession of the documents custodian must be open to inspection by any person at all times during office hours. A.R.S. § 39-121. A "record" is
broadly defined and includes various types of documentary materials regardless of physical form or characteristics that are made or received by
any public body to transact public business and are preserved by the public body. A.R.S. § 41-151.18.
The law provides a few exceptions to withhold records from the public's view due to privacy concerns, confidentiality requirements, or if disclosure
is not in the best interest of the state. Similar to the open meeting law, these are narrow exemptions because the purpose of the law is to provide
the public with access to government records. An individual's ability to inspect a city or town's records provides the public with confidence that
the council and employees are being open and transparent in their actions and are observing the law.
Ethics
Elected officials and their employees undertake significant responsibilities on behalf of the public and ethical standards require public officers
to remain impartial in their duties and avoid the appearance of impropriety. In 1992, the Legislature declared a public policy that "all public
officers and employees shall discharge their public duties in full compliance with applicable laws concerning ethical conduct." See Laws 1992,
Ch. 134. This legislation also required public service orientation programs to instruct all public officers, i.e. elected officials, about
appropriate ethical standards.
Public officers are required to take an oath or affirmation to support and bear true faith and allegiance to the Constitution of the United States
and the Constitution and laws of the State of Arizona and swear to faithfully and impartially perform all duties of their office or position to the
best of their ability. A.R.S. § 38-231. This oath places the officer on notice of their duties under the law including those relating to conflict
of interest, financial disclosure, nepotism and the restrictions on gifts. The officer's duty to be apprised of relevant laws instills confidence
that the officer is fully informed of their role as public servants.
Additionally, an attorney's oath requires the attorney to faithfully and diligently abide to the Rules of Professional Responsibility and a Lawyer's
Creed of Professionalism of the State Bar of Arizona. As counselors and advocates, licensed attorneys agree to certain obligations including being
respectful of the courts, maintaining confidences, and abstaining from offensive conduct. Attorneys are required to receive a specific number of
training hours each year to continue their legal education and enhance their legal skills, including ethics training. As a legal advocate for a
city or town, attorneys must conduct themselves honorably in order to best serve the needs of their client.
As public servants in any role, whether it is as an elected official or an employee, it is important to remember that our duties are centered on
serving the public. Posting an agenda to alert the community of an upcoming city council meeting or providing copies of documents as part of a
public records request are important responsibilities to keep the public engaged and informed. Performing these and other duties while consistently
adhering to ethical standards avoids the appearance of impropriety and gives confidence that decisions are being made in an unbiased and objective
manner.
Continuous education and training is an essential component to help all public officers faithfully and diligently perform their statutory duties. The
Arizona City Attorneys' Conference will provide this forum to enhance legal skills on these principal topics in order to better assist local officials
and public officers in their efforts to provide good governance for all communities.
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