|
|
Legal Corner: Governing 101
Christina Estes-Werther, League General Counsel
Following the 2016 election cycle, the League welcomed new members of the city and town councils to the League's Newly Elected Officials Training this
month. The subjects covered during this training included an introduction to Arizona government, council manager form of government, budgets, media
relations, Open Meeting Law, and ethics. These topics are an important primer for any newly elected officer and also presents an opportunity to provide
a quick refresher to all city and town council members and address the most frequently asked questions about a few of these topics.
Open Meeting Law
Arizona's Open Meeting Law ("OML") 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. Some of the most common questions about OML involve email
communications. Council members often wonder how they've violated the law when they didn't personally speak to another council member. The answer lies
in the definition of "meeting" pursuant to A.R.S. § 38-431(4), which includes "technological devices" such as e-mail and other types of electronic
communication. If a gathering of a quorum is included on the email and the email involves discussion or deliberations of legal action, then an OML
violation may have occurred. The best way to avoid this situation is to rely on staff to communicate council packets and other background information
to all council members and if you receive an email that includes a quorum of council members, be cautious before "replying" or "replying all." While
you can provide factual information to your fellow council members via email, you may inadvertently share an opinion or propose legal action, which may
result in an OML violation.
Another common question is whether or not to post a courtesy agenda if a quorum of council members will be present at an event or community function that
is not a council meeting. If no legal action is planned, the council may want to alert the public that they are aware of the quorum requirement and reassure
the public that a "meeting" will not take place since a discussion or deliberation of legal action will not occur. Courtesy agendas are not required under
the OML but they are suggested as a best practice when social events may be planned in order to provide notice to the public that there is no attempt to
circumvent the law. If your city or town posts a courtesy agenda for a private function, there is no requirement that the public be allowed into the private
party or other private function - remember, this is not a "meeting" under the OML so there is no right for the public to attend since there are no
deliberations. The use of courtesy agendas varies by community and you may want to discuss their usefulness with your clerk and attorney.
Often council members are frustrated by the OML believing it stifles communication with fellow members. While the OML is designed to elicit deliberations in
the public's view, the council can meet and discuss city and town issues with each other as long as there is not a quorum or a deliberate effort to circumvent
the OML. You can also rely on your staff, including your manager or attorney to help navigate a complex issue.
Another pitfall relates to executive sessions. Executive sessions must be used sparingly since they are limited exceptions to the OML. Everything discussed
in an executive session is confidential and can only be shared under limited circumstances (e.g. during an investigation of an OML violation by the Attorney
General). The vote to enter into an executive session must be conducted in the public session. A common question is whether the council may take the public
vote to enter into an executive session in one meeting and immediately enter into the executive session at the next meeting. The Attorney General's
published Arizona Agency Handbook provides
in Section 7.9.1 that a council may take the public vote in a meeting "to meet on the later date in executive session." This avoids the inconvenience to the
public of being seated at a meeting where the council will promptly enter into executive session and immediately require the public to leave the room once the
council meeting begins.
The OML is designed to allow the public to access to their government by attending the meetings and hearing the deliberations that affect their city or
town. This law provides the public with the ability to understand how you, as their elected official, are representing their interests and who might be
influencing your 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). Public records must be available for inspection by any person at all times during regular
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. It is important to note that not all records in your
official email are public since you may have personal emails relating to doctor appointments, family issues or other correspondence that doesn't relate to
transactions of city or town business. However, if your city or town is subject to a public records request, someone may have to view these emails to determine
whether they are subject to the public records law. For this reason, any private matters may be better suited to your personal email account.
As noted above, a "record" is a document or materials that is made or received by the city or town to transact official business. The record doesn't change based
on how it is transmitted or where it is stored. Therefore, if you correspond about official city or town business on a personal email account, it may be subject to
public records law if the email relates to city or town transactions and if a public records request is made, the burden is on you to provide the related documents
and materials since the city or town staff do not have access to your personal accounts.
Emails and other correspondence are also important for retention purposes so the public can understand and view the city or town's transactions. The public records
law extends to social media and the information published on your city or town website must be retained in some manner. Since social media isn't designed for public
records or retention laws, the website's fluidity can frustrate these laws. One suggestion for maintaining this information is to keep an offline version of the
content you are posting to your website or social media account. This content can then be produced if a member of the public seeks information about what was
previously on the website that may no longer be available. These documents would be subject to the same retention schedule as other documents so the records may be
able to be destroyed at a later date if they no longer contain valuable information. For example, council minutes are permanent records and must be maintained
indefinitely while certain general correspondence may only be kept until the administrative value has been served. The city or town clerk maintains these records
and is knowledgeable about the various retention schedules.
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.
The public records law works alongside the OML and provides the public with confidence that the council and employees are being open and transparent in their actions
and are observing the law.
Conflict of Interest
A conflict of interest occurs when a public officer or employee (or a relative) has a substantial interest in any decision of a public agency. A.R.S. § 38-503.
"Substantial interest" means any pecuniary or proprietary interest, either direct or indirect, that is not a remote interest. If all these factors are met, then
the public officer or employee has a conflict of interest and must disclose the interest to the city or town clerk who maintains the official record. State law
prohibits the public officer or employee with a conflict of interest from voting or participating in any decision including matters involving a contract,
sale, purchase or service for the city or town.
Sometimes questions arise about whether a member has to remove himself from the dais if the member has declared a conflict. It is not required to step away from
the dais but the purpose of the law is to avoid influencing a decision where the council member may have an interest so if your presence on the dais may be influential,
you may want to voluntarily remove yourself from view until the decision is final.
In order to determine whether an interest is substantial, Arizona law provides categories of "remote interests" to assist with an analysis. If the matter is a remote
interest, then it is not substantial and there is no conflict.
In the February Legal Corner article, the conflict of interest
was more thoroughly discussed but it is important to note that H.B. 2123 amended
the law this past session and the Legislature added two additional "remote interests" to the law. The law was passed to address concerns raised by the Arizona
Corporation Commission but the law changes the definition of "remote interest," which applies to all public officers. The new remote interests are as follows:
- A relative who is an employee of any business entity or governmental entity that employs at least 25 employees within Arizona and who, in the capacity as an
employee, does not assert control or decision-making authority over the entity's management or budget decisions.
- The ownership of any publicly traded investments that are held in an account or fund, including a mutual fund, that is managed by one or more qualified
investment professionals who are not employed or controlled by the officer or employee and that the officer or employee owns shares or interest together with
other investors.
These new provisions to the definition of remote interest are untested so there is little guidance on how to interpret them. Committee testimony specified that the
legislation was an effort to clarify the law and the policy decision of the Legislature was that under these two circumstances, an officer would not have to declare
a conflict of interest.
When weighing whether you have a conflict of interest, it is helpful to seek the advice of an attorney who can assess your particular circumstances. It is not unlawful
to have a conflict, but the violation occurs when a city or town council member fails to disclose the conflict and continues to participate in the decision-making process
when the member has a substantial interest in the outcome. Allegations of misconduct or violations may result in criminal penalties and forfeiture of office or employment
pursuant to A.R.S. § 38-510. Any person affected by a decision of the city or town can file an action to enforce the law and a court may order civil penalties including
reasonable attorneys' fees. Further, this type of conduct may jeopardize contracts or services related to the conflict since state law allows these contracts to be nullified,
which may significantly affect city or town functions. A.R.S. § 38-506.
Conclusion
These three laws - open meetings, public records and conflict of interest - are requirements that assist the public with understanding how their government is being managed and
whether their interests are being represented. Failure to adhere to these laws may lead to civil or criminal penalties and result in public distrust of the council and municipal
government. 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. 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. For further assistance about these laws, the League provides several publications relating to your role as an elected official. Please
see our Resource Library and Publications for
more information.
|
|
League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ 85007
Phone: 602-258-5786
Fax: 602-253-3874
http://www.azleague.org
|
|
|
