Planning & Zoning Commission - Special Meeting

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Heat. Heat. I don't see. We just have to see. Yes. I'm so sorry. I'd like to call the planning and zoning special session to order for discussion of Arizona's open meeting law. And Miss Henry, legal counsel and dispute resolution specialist with the Arizona Ombbudsman Citizens Aid is our presenter. Good afternoon, Miss Henry.

Good afternoon. We'd like to take role. We will. Yes. Thank you, clerk. Sandy Griffith here. Ted Herb here. Joe Colossimo here. Kaden Graci here. Joe Huat here. Brianna King here. Thank you, clerk. Thank you for being with us, Miss Henry.

Thank you for having me. Are we ready to go? Yes.

Okay, great. Well, thank you all for having me here today. Um, as as you know, my name is Melissa Henry. Um, big fancy long title, but really I am one of the attorneys in the um OMBbudsman's office. I did bring with me today my colleague Nick Bacon, who is also an attorney with the office. uh he has great experience also with the open meeting law and public records law. So if you reach out to us, you may get either one of us. You're in good hands either way though. Sorry, I lost my mouse. First thing. Okay, so the first thing is most people don't know who we are or what we do. So I'm going to tell you a little bit about that. Our role, our main role is to investigate state agencies, which is not particularly relevant today. But we also are mandated to have a public access program where we can investigate complaints about open meeting law and public records law um for pretty much every public body in the state. The other big piece of that though is that we are tasked with training and educating both officials and the public about those two bodies of law, which is why I'm here today. Uh, one thing to note, we do not give legal advice. So, nothing I'm saying here is legal advice. Um, for that I will refer you to the attorney uh your attorney who can give you a a more more uh solid legal advice. So there are a few minor statutory requirements, not minor but simple. The first one is that anyone who is elected or appointed to a board has to review this one chapter of the Arizona um

agency handbook that's created by the attorney general. Um I put a link here to it for you. I will say if you have the PDF version of this, all of the links are live, so you should be able to get to exactly where you need to go. Um, some boards, some agencies have other requirements regarding open meeting law, but um, [clears throat] that's something that you would have to look into um, specifically for you. Um, so that that's just a little bit of background. Uh, I'm going to start by going into just the basics of open meeting. This is going to be a very quick overview of the things you need to know. Um, I'm going to delve into each of these subjects a little bit deeper um as we go along later on, but this is just a little overview. Um, so the first question is what is the open meeting law and why do we have it? It's it's basically a state a set of laws that are designed to let the public know what their government is doing. Um it maximizes access to the process and it promotes transparency and accountability. And so it's a pretty broad group of of organizations that need to comply with the open meeting law. And this is this sometimes trips people up, but really in short, if you think you do, you probably do. And I will say for sure that you you all do. Um, which is again why I'm here today. So

public body though is not just you or the board or the agency. It it's bigger than that. It includes committees, subcommittees, advisory committees, um special committees and advisory committee and subcommittee is actually defined in the statutes in law. So any group no matter what you call it um that's established to make recommendations and it has to be established in one of these two ways um either by the body as a whole or by the presiding a presiding officer of the body um that becomes an advisory group. Um the the short version uh the the easy to remember version is no matter what you call it, if you put a group of people together to give you advice, then they need to follow the open meeting law too. And that applies even if no one from the commission is actually on that subcommittee. As long as it's created by you to give advice, it you have to follow it. The subcommittee has to follow the open So enforcement again this is going to be just a quick explanation. Our office is not an enforcement agency. If people come to us our goal is really more advisory. We try to take little problems and prevent them from becoming bigger problems. We can make recommendations on how to fix things, but we can't force anyone to do any. Now, the the attorney general, on the other hand, can they can prosecute you for violating open meeting. Um, and if you're not aware, the single best acronym in all of

government falls from the attorney general's office. It's the open meeting law enforcement team or omelette. Love saying that one. Um, but they can they can impose penalties. Uh, training is a big one, which is part of why we're here. Um and that that is probably the most common uh order by the attorney general's office. Uh the attorney general is the only agency only entity that can sue an individual. So they could come after you individually not collectively can collectively but um they have the option. Now, the counties county county attorney's office can prosecute and any person who has been harmed or who feels like they've been harmed by uh an open meeting law violation can also uh file a civil lawsuit. So with that said, here is just a quick rundown of what is required of the public body. What you all have to do to comply with the open meeting. The first one is you have to tell the public where they can learn about the meetings. Uh then you have to actually provide notice of those meetings. You have to have an agenda. You have to meet in public. you have to let the public come. Um, unless it's an executive session, but that's a whole different animal we'll talk about in a little bit. And then you have to take all legal action in public and create minutes or recordings, which have to be also available to the public. So, that was a real quick rundown. Um before we jump into meetings, are there

any general questions about that? Commissioners, any questions? Okay. Well, then we Miss Miss Henry, I do have a question. Sure. This is Sandy Griffith. So, are open meeting law trainings required of public bodies once a year or every time new members are appointed? Is there any rule of thumb for that education arm?

I don't know of any requirement, general requirement. There are some statutes that have um specific requirements, but those would be ones that would apply to you specifically. Um, in general, a good rule of thumb is just making sure your new members have some training. We have a video that we can provide. Um, we're actually in the process of updating that. Um, and we have our booklet and I believe you all should have copies of that or if you don't already, you will shortly. Uh, and that gives a really good rundown of the open meeting law. Um so we our office is a great resource for that but there is no requirement uh that you do it at any regular time. We do have a lot of of groups that come back to us frequently uh regularly once every year or two. And then we also will be holding some public trainings that people can sign up for. So, if you have one new member, they're welcome to sign up for those once we get them going.

Thank you. And we all do have the booklet. So, thank you very much for that. Oh, good. And I think you're the first ones to get the 2025 version. So, um that's exciting.

All right. So, let's jump into meetings. Now, open meeting law means that it has to be a meeting, right? So what constitutes a meeting? Here's the uh the definition. It's a gathering and it can be in person or like this um well it's in person for you but it can be electronic like where I am. It has to include a quorum of of the commission and you have it's when you discuss propose or deliberate about legal about taking legal action. So, um, there are a few other things that are in the law called meets. One is a one-way electronic communication. So, if one of you sends um an email to the rest of the commission that proposes legal action, that's a meeting even though it's not a discussion, deliberation, etc. also an exchange of communications among the the commission doing those same things, discussing, deliberating, taking legal action um about something that is likely to come before the board, not something that or the commission, not not something that already is, but something that you you think will. That's also a meeting. And so both of those need to happen in an open setting with the notice requirements met and all of the other hoops you'd have to jump through. So what is not a meeting though and this this is one that we hear a lot about in our office and as we go along I'll talk about some of the issues that get raised to us.

um social gatherings, other meetings or gatherings that are not related to the board or the commission, seminars, things like today. I would not say that this is a meeting. You're not discussing, deliberating, um anything about about commission business. You're not making decisions. You're not proposing decisions. This is just learn. So, that would be okay. that would not necessarily be a meeting. Um, this next one can get people in trouble, so be careful with it. And that is you are allowed to talk about issues in public. [clears throat] You can give a speech, you can do an interview, you can talk to your neighbors. Um, as long as what you're saying is not directed to your to your fellow commissioners or um and there's no plan for deliberation. Um, again, this one can be a little tricky. We do see some complaints about it that there people are trying to circumvent open meeting law. Um we look at it in totality. We don't just blanket say yes and no. Um now all of that a meeting has to involve legal action which is a lot broader than most people think. Um, and Nick, you wanted to chime in. Go ahead.

Sure. I'm sorry. I should have told you I might do that. [laughter]

No, I expected you to. Um but uh one thing I would say and you you probably will get to this Melissa but the the um with uh anything anytime when there's like a meeting like a social gathering or other types of things like um you know if somebody if uh there's if there's some sort of um event that many of the board members might attend. Um, something that is is done pretty regularly is just a a sort of courtesy announcement to say a quorum of the, you know, a courtesy announcement in the same place that you'd post an agenda saying um, you know, the a quorum of the of the public body will attend this event and um, no legal action will be taken and it won't be a meeting. Um, that's a regular thing that we see and and it's a and it's a sort of a a smart thing to kind of get in front of any concerns that the public might have. Um, that's something that we see fairly frequently. I say we I'm relatively new to the body, but I've done it at the the attorney general's office at the omelet, and we see that pretty regularly in those complaints. Um, and it's something to sort of get ahead of that and just like let people know, yeah, a quorum was there, but we're not we're not discussing anything and we're not going to be uh conducting any legal action. So, just thought I'd raise that.

Yep. And you you got ahead of me by a few slides, but sorry. I don't know your slides. I should have waited. [laughter]

All good. We're of one mind here, so that's a good thing. And I'll reinforce it later. Um, okay. So I think did I just go? Yeah, I went backwards. So again, jumping back um a meeting involves legal action. A lot of people have a misconception about what that means. If anytime you have a decision or a commitment or [clears throat] you make a promise um to uh the public um you it it's a legal action. Um so actually let me go back one. Ah what am I doing? Ah going the wrong way. Sorry. Um, so before we move on to the public rights, does anyone have a question about legal action and what constitutes a meeting?

Commissioners, any questions? No. Thank you, Miss Henry.

Okay. And if anyone does have questions, please feel free to jump in um at any time. Always happy to answer those. So, public's rights. This is something that our office hears quite a bit about. Probably one of the most common open meeting law um complaints that we receive is about what a board, commission, agency allows the public to do or not allows them to do. So here is what the public absolutely has a right to do. The public has a right to attend the meetings. They have a right to listen to what's being said. Of course, executive sessions are all outside this. And the public does have a right to record a meeting. Um audio or video recording, you cannot stop them from doing that unless it's disruptive. And you have to define what disruptive means. The public does not however have a right to speak or participate and they cannot disrupt the meeting. They don't have a right to disrupt the meeting. So um if they're disruptive, you can stop a member of the public. This is I'm going to give you a practice tip here. This is not um again not legal advice but it is something that we've seen a lot and and have found to be effective um for other other public bodies. The first one is lay out the rules very clearly at the beginning of the meeting. Um what what will be allowed what will not be tolerated and what will happen if someone breaks those rules rules of decor and things like that.

And then if you are going to eject someone from a meeting, make sure you have a really good record of telling them, giving them warnings before you take that action. It's a pretty extreme action. And there was actually a case here probably a year ago now, maybe a little less, where a woman was ejected and arrested and the the city um that was involved was sued. I think there was a settlement. I don't recall the numbers, but it it can get you into a lot of trouble if you're not careful here. I have.

So the next the next piece of this, Miss Miss Henry. Oh, go ahead. We have a question from one of our commissioners.

Hi, Miss Henry. This is Joe Huat. I uh so is there a is there a definition for disrupt? I mean there's plenty of uh certainly don't want to have any disruptive behavior behavior for sure but there's been u decisions uh even up to the Supreme Court where you know costic speech and other things is a matter of right with regard to the first amendment and so uh is there a definition for disruptive uh because it seems that people uh can say things that potentially uh a commissioner or other members of the public could take offense to but it's protected speech. So that is un under open meeting law specifically there is not a definition that's something that you as a commission with your attorney will have to come up with on your own um what that would be keeping in mind the Supreme Court decisions and and public policy and all of that but for the purposes of open meeting law uh there is not a definition. Okay, I have a question.

Mr. Colossimo, Vice Chair Herb was first. There we go. Sorry about that. Miss Henry Ted, vice chair. Um, on your slide where you you specify what the public does not have a right, right?

The first one that they don't have a right to speak. Are you saying that from meeting to meeting we as the board have the ability to say whether or not we will allow public comment at a particular meeting based on the subject matter or I I just I find it odd that that they actually don't have that right to make public comment or speak and and if that decision is left to us as the board. Well, that's actually my next slide. So, um, if you can hold off for just a second, I will answer that. Miss Henry, Commissioner Colossimo also has a question. Sure.

In regards to disruptions, what recourse do we have? What do we do if this if this happens? So that's really a policy decision for you um as again as a commission with your with your attorney. Um up to I would say injecting someone um I've seen where people have been arrested when they've been extremely disruptive. Now that was an extreme case but I've seen it. Um it's really something that you all would have to decide uh for open meeting law. The big point big takehome is that you can stop people from being disruptive in a meeting. So if they're doing something they otherwise would have a right to do for example recording. if they're, you know, running around and, I don't know, knocking over chairs while they're trying to record a meeting, that might be considered disruptive and you you'd be within your rights probably to stop that. I know that's kind of a vague lawyer, it depends kind of answer. Um, now I should back up and say our office is very much limited to talking about the open meeting law and public records laws. Um, that's just what the the legislature has allowed us to do. So, I I can't really give um constitutional opinions and things like that. Um, I have my own personal thoughts on those, but um, I I can't share those. Uh, for those kinds of decisions, you really do need to talk to uh, your attorney.

Thank you, Miss Henry.

So, this was the question that was just asked. Um, calls to the public, they are optional. The public does expect them and want them. And there are plenty of good reasons to have them, but you do not have to have them. If you are going to have them, they have to be on the agenda. Um, but you could take them off the agenda for the next meeting and the public would not have a right under open meeting law to comment. Um, that is um unexpected. Most people have a very big misconception about this. um called to the public. People if you're going to have it, people can only speak about things that are within the jurisdiction of the commission. Um for example, they probably couldn't get up and start talking about um flag burning, for example, because that's not something you could do anything about. Um so you could have that limitation is there. You can also limit time, place, and manner. Um which is kind of a legal term of art, but you can put time limits. You as long as they're reasonable. Uh you can say each person can only talk for five minutes. Um you can do things to prevent uh repetition. Um, and you could pro prohibit disruptive behavior here too. Um, [clears throat] what that means is up to you to decide and define what that disruptive behavior is, but you can make it so that if someone engages in that disruptive behavior, they forfeit their ability to speak. Um, in terms of preventing repetition,

something that I've seen and that has been effective is if you have say 10 people who are all going to say the same thing, you can ask them to appoint a spokesperson just to make it easier. Uh, it's a resources time limit um limited amount of time for the meeting issue. But that's that's pretty much it. Um, so to answer the to go back to that question, yes, they are optional. Um, you as a board could or commission could decide to not hold one. I will tell you people don't like that. So, when you're considering whether to have a call to the public, um, like I said, there are plenty of very good reasons to do it. And most I would say most public bodies do have a call to the public. Um it it's it can foster a good relationship with the public. It allows people to weigh in. There are, like I said, lots of good reasons. Here are some things to think about though when you're making that decision. The public can bring up anything they want as long as it's within your jurisdiction. Um, but if it's not already on the agenda, you really can't do much. Um, you can't talk about it, you can't respond. You can't, um, can't really say anything. You can tell the staff that you want them to study the matter, you can ask that it be put on a future agenda. So, at the next meeting, let's talk about whatever it is. Now, if someone criticizes you, you can respond to that um that can cause problems in its own right, but that's um that's your

decision. Those three things though, you can only do once the whole call to the public is over. So, it's not an in the- moment sort of thing. So, that's just something to think about when you're making that decision. So, any questions about that? I know that one is a little tough to swallow. Commissioner King.

Thank you, Chair. Uh, hi, Miss Henry. Brianna King here. So, I just want to be clear that I'm understanding this distinction. And so, uh, keep me honest here. We're saying that they are able to speak so long as it's on the agenda, but the agenda the agenda can equal anything that was also on a prior agenda from a prior meeting. Is that correct?

No. No. So, the public can speak about anything. It does not have to be on the agenda. So, the public is free to talk about anything they want as long as it's something that your that's relevant to your uh commission. Got it. Um it to for the commissioners to talk about it, it has to be on the current agenda. Right. Okay. Understood. Does that clarify? Very helpful. Thank you. I also have a question, Miss Henry, but I will first direct to our town attorney, Mr. Leggler.

Madam Chair, thank you. I was just going to ask if I could ask a question or make a comment as co-consel for the board today. Um, one of the main reasons why you exist is to hold public hearings. And I'm guessing that perhaps um, Miss Henry will be talking about that to make that distinction. So less there be some confusion, there are separate statutes that require public hearings where the public has a right to speak when it comes to zoning matters. And that's what you spend most of your time doing. So what we're really talking about here is the call to the public, which wouldn't actually have to be held by this board. this board could choose not to have calls to the public. So, we're focusing entirely on your option to have calls to the public. Separate from that, which Vice Chairperson Herb asked about, is your separate requirement to hold public hearings related to zoning. And I'm sure that's uh Miss Henry will talk about that. I I actually don't have a slide on that but that is something I was going to touch on that I am only talking about the open meeting piece. There are other requirements there may be other requirements. Um you if you do hold hearings there are very many other nuances there that are not within the purview of my office. So for a hearing, yes, the public does have a right to speak and that's that's something separate. I'm talking more about the business meeting. Um the hearing may be on the agenda and then well it would have to be on the agenda then the public

would be able to weigh in in that case but I'm talking very specifically about the call to the public which is um its own agenda item if you choose to have one. Um, I appreciate that distinction. Uh, and it's it can be a little, uh, confusing. So, I would say, um, definitely talk to your attorney. He knows what he's talking about. Uh, so, are there any more questions about that before we move on? I

I don't know if it's specifically about that, Miss Henry, but we do have three commissioners. So just for clarification, call to the public, they cannot make call to the public comments [clears throat] on an agenda item coming up. Correct. Oh, no. They can comment on anything um anything at all in a call to the public. So they can discuss an agenda item comment an agenda item as well. Yes. Yes. Um, if it's an agenda item though, you can talk about it. Um, once you get to that agenda,

okay, the public the public, you can't limit what the public talks about.

Okay. Thank you, Commissioner or Vice Chair Herb. Miss Henry, one of the questions I have refers to the um call to the public and relative to time, man, place restrictions. Um we struggle with that here quite frankly. Um time limits we post. We let people know at the beginning of the meetings what those rules are and we struggle to keep people on task, keep people on on time. Um and we try to ban the repetition. Um it seems to be a fruitless effort at times. I I'm curious to what level um do we have to to cut people off and and I I don't want to say remove them from the process because that's not really what I'm after, but when their time's up, their time's up and and we routinely have people just continue and continue and continue even though we we uh intercede and remind them of this and that their time's up and and most often we can get them off the the podium, but there are times where we really struggle with that and I'm curious to know to what degree or what are our options there um to remove people from public comment when they've exceeded their time or were three people in to this the same comments being made over and over and over. Um, I'm hesitating because I I can't really give legal advice and I I'm sorry I keep repeating that. It's it's a it's just an important um important for my license. But if it's to the point of being disruptive, that is something you could possibly remove someone for. Um, like I said, if you're going to do that, you probably want to give a make a good record of

saying if you don't do this, if you don't stop, you don't stop. Um, that's probably the strongest tool in your arsenal. Okay. So, just in the beginning of the meeting when we specify rules, make sure that it's clear to people that you you do or can run the risk of being removed from the meeting if you habitually go off the rails and and go on and on and on when you've been, you know, for lack of a better word, warned that your time's up or that you're being repetitive

in theory. Yeah. And I again, that's going to be an internal policy for you all to decide. Um, and how How do you want that to be triggered when the time comes? Um, but that's that's really a policy decision. Uh, I I will say, Miss Henry, in response to Vice Chair Herb, that is not a habitual habit that the planning and zoning commission goes through. I've never seen a council meeting in any jurisdiction whatsoever or a planning and zoning meeting in other jurisdictions where we don't always have the passionate person that wants to speak. And without fail, the leaders of those commissions have always been able to Sir, your time is up. Please wrap it up. Sir, you have one more minute. So, I've I've seen nothing but success in in meetings, commission meetings, council meetings, and I think forever we will always have the compassionate person that wants to get their tone and their message across. And as long as we deal with it in a respectful, polite manner, then that meeting has been successful.

And that's where the it becomes an internal policy decision of do you want to stop people? Do you want to give them a grace period? Um do you do you want to impose a time limit? Those are all things you get to decide. and we do impose a time limit, but again the world and and communities are full of passionate, loving people. So, um, Commissioner Huat [clears throat] would like to raise a question.

Well, I just want to get back to the distinction between the open meeting laws and then a public comment with regard to hearing items. Uh, so in in in they've referenced ARS 38431.01H, the one H. But actually in I and thank you uh Ivan for clarifying that I there is the may may word with regard to the to the um um allowing for uh public comment. So I I kind of was like what there no public comment. We don't have to do that. But it certain certainly says that here under subsection 8 I excuse me. Uh they've got the word uh may in there. So it is very real. So for the benefit of the rest of the commission

and and we have had discussions about what to do with open with call to the public and it's on our agenda and I feel personally that it needs to be retained on our agenda again for the sake of the community and and correct me if I'm wrong I think it's early in the process in the meeting very right up front

which I which may be more productive because I think um I'm only going by the county. We do ours at the end of the meeting which then kind of helps to control a little bit of the comment related to uh uh upcoming agendas. And again uh um to Miss Henry's point that we can't uh control during an open call to the public, you know, what a person's going to say. Um but um at the end of the meeting as long as that doesn't conflict with any nothing that uh and that's certainly a discussion that the commission we can have with our legal attorney at some point in time that would be a a decision made by the commission

right and and I will just word of caution that by talking about it now unless that's that decision is on the agenda for today and has been publicly noticed um that could be an open meeting law violation. So, I just caution about what you're deliberating about. Um I just don't want to get anyone in trouble here. Merely uh just a thought about what other jurisdictions do, just information purposes. Yeah.

Miss Henry, Commissioner Colossimo has a question. Just to go off of um I if we are having someone speak about something that's already on the agenda, can we then ask them to delay their their call to the public? I mean, it doesn't make sense if it's going to be an agenda item that they're already and especially if we're doing call the public first thing that they're already commenting on it when we haven't even discussed it yet, but yet it's an agenda item.

So, I I would say probably not. Um, you could, if you're going to have someone speak on a topic, you need to put that particular person on the agenda in that agenda item. You can take note of what they're saying and address it when the agenda item comes up. Um, and that happens quite frequently. Thank you. I believe our town attorney, Mr. Ller, has a comment. Sure.

Madam Chair, again, thank you and I apologize for coming up. I hadn't planned to, but I I did want to uh respond to this issue again about the special circumstance of already having a public hearing scheduled for an item uh before the planning and zoning commission. Again, something that this commission does very often as compared to the town council. And in terms of time, place and manner restrictions when it comes to the call to the public, chairpersons, mayors, and others have often in the explanation to the public said, "We are going to have a public hearing. We would ask you not to comment during the call to the public about the item related to the call to the public. You'll have an opportunity to do that. This would be a place separate from that if you would like to talk about anything uh otherwise in the jurisdiction of the commission including things that are on the agenda perhaps that don't have a public hearing scheduled for it. And so I share that with Miss Henry just so that she knows that that has been a standard practice of this commission and the town council for many years.

Um I'm not sure what would happen if someone tried to speak on a topic that was going to be part of a hearing later. Um I you know I can't say one way or the other whether that would be permissible or not. Um there are a couple of considerations but that actually has not come up before our office before. So um but again I appreciate the distinction between hearings and public meetings. Okay. So, I'm going to bring this up this piece of the topic of of I'm going to bring up this topic more than once during this um presentation because it's something that it something that we see a lot of as well. Um electronic devices, they can be wonderful, they can be terrible. Um, using your phone, your email, uh, social media can actually turn what seems like an innocent, easy conversation into a meeting. Um, emails, text messages, that seems a little more obvious, Teams meetings or or any of those kinds of messaging things. Social media is the one that surprises people. If someone posts, say on Facebook, uh, this commission is terrible, they won't even do XYZ. And then each of you chimes in with a response to that and it has to do with legal action that could then be a meeting in violation of an of the open meeting. So I urge caution when engaging in social media. um a lot of

organizations just don't uh or they post things but don't respond. So just just be aware that um you can fall into a meeting inadvertently. Um the next two really have to do with public records law, but I I throw it out there because they tend to bump up against each other here. And that is it doesn't matter what the device you're using whether it's your personal device or a work device doesn't matter it's what you're doing not where you're doing it and everything you do probably is a public record as well and that can be its own its own interval a question

um yeah go ahead um the meetings don't they have to represent a number that is a quorum um or uh does this also apply if I'm at a coffee shop and um madam chair comes to me and says hey by the way and then mentions some things about an item that we might be hearing it would have to be a quorum that is one of the key definitions of a meeting is it has to involve a group okay

so for example with the social media if only one or two of you responds, it's fine problem. But if the forum starts responding now, you have a problem. Um, and you can't use electronic devices to get around the law. And this that question actually leads very nicely into this concept of splintering the quorum. And that um essentially is using serial communications to get around open meeting. So if two of you are in the coffee shop and having that conversation and then one of you turns around and talks to another person, another commissioner and so on down the line, that is also that could be a meeting because even though you're not all together having that discussion, it is essentially the same thing. So that also applies to forwarding emails and that's why I have it with the electronic device. That's where it happens more often. Um, hey, I got this an email from Commissioner A and I'm gonna send it along to you. Well, now you run the risk of of running into a quorum in violation of the open meeting law. Um, here are just a few things though. Staff emails are not usually a violation. Um, and and that makes sense, right? You need to be able to get information about the meeting, say a packet about a hearing, you need that information. The staff of course can send that out to you. Now, receiving information without more, and that's key, um, is not a violation of open meeting. When you [clears throat] start to respond with things beyond thank you or received or I appreciate you, those sorts of things, then you can get into trouble, especially if it's substantive.

Um, you can propose an agenda item, that's fine. You can send an email to everyone saying, um, I'd like to talk about X again without more. you can propose the topic but you can't take a legal a position on that. So it would be we should discuss um I don't know uh putting a stoplight at first in May. Um, you shouldn't say we should vote to do that. And it's it's kind of a a fine line, but before we go forward, does anyone have a question about that? Does everyone see the difference?

Commissioners. Okay. Thank you, Miss Henry. Yes, we're fine.

Okay. And then here's just a little something to know. Um, obviously you can't violate open meeting law. You can't tell someone else to to violate it on your behalf, your behalf. And if that happens, not only can you get into a lot of trouble, the person who does it on your behalf can get into a lot of trouble, too. So, if not for yourself, um, don't get other people in trouble. And then here's the last one. And and this is essentially the source of a lot of the complaints that we get about electronic devices especially and that is this appearance of impropriy. You may be sending a meme to your brother while you're sitting um up at on the deis right that has nothing to do with the meeting. That's clearly not a violation of the open meeting law. But the public is watching and I can't tell you how many times we have had people come to our office and say they were violating open meeting law. They were having a conversation um on their phones while they you know they were texting back and forth and I know because I saw someone doing something on their phone and then looked up at someone else. probably not doing anything wrong, but it looks bad and the public is watching. So, my practice tip is just don't do it unless there's an emergency or it's absolutely necessary. Try not to to play with your phones or um answer emails or do anything else while you're up there. Um that's just my my tip based on a lot of what our office sees. We do always explain that there unless you have direct evidence that it

actually was board business or mission business then um it it we can't say that's a violation. Okay. So that is the piece about the meeting. So now we're going to move on to the notice. What are the notice requirements? Um, and I note that we're running a little behind schedule, so I'm going to move pretty quickly, but you all have my slides, and I'm happy to answer questions and stay as long as we need. Um, first, there are two types of notice. The very first one is this initial notice, the disclosure statement it's called, and that is where you all tell the public where they can go to find notices of meetings and agendas. um all the things that you're required to tell the public and you have to have that statement on your website. Um that one you really you only do it once. You update it as needed, but it once it's there, it's there. The next one is the one that people really talk about, and that is the notice of the meeting. This is what needs to be provided at least 24 hours in advance of the meeting. Um I would say as much time as you can possibly give is is better. Um it has to be sent to all of all of you but it also has to be available to the public. Um now that 24 hours is calculated um it just depends uh if it's in a physical location and the public can access it. You actually count Saturdays for that 24 hours or you can uh just something to know when you're calculating.

There are two exceptions. One is if you recess a meeting and then resume it. You don't have to notice the second the resuming of the meeting. And if there's an actual emergency, you don't have to post um a notice. Now, actual emergency is is pretty narrow. We're talking about things like natural disasters or um the whole power grid goes out or something really big like that where there's no way possibly have gotten a notice out. The notice has to contain the name of of the commission, when you're going to have this meeting, and it has to include an agenda or it has to tell the public where they can go to get an agenda. Um, it's usually easiest just to include the agenda, but uh not necessarily a requirement. [clears throat] um posting the notice, you have if your disclosure statement, that initial notice says that it's going to be posted in a particular place, it better be clos posted in that place. Um and it has to be wherever the a place where the public can actually get to it. you have to put it on your website um to the extent that you have one and you have to give and this is in the statute additional notice that is reasonable and practicable there's no definition of that um so you can use your judgment but this is where I say the longer notice the better um and this is what Nick was talking about before and that is the courtesy notice I won't talk about too much now because Nick covered it pretty well. Um,

but this is just again a way to avoid that appearance of impropriy. We actually had a complaint. Uh, there were three members. It was a three member board. They all belonged to the same church. One of them passed away and the other two went to the funeral. And um, we got a complaint that they were violating opening law. They were not. There's absolutely no way that was a violation unless they were talking about business. But um so that's where the courtesy notice would come in. You would say uh board member A, board member B will be attending the funeral of board member C on this date, this time, uh no business will be discussed. And then you're you're pretty safe as long as you really don't discuss business. Um, and I think that goes without saying. Um, any questions about the notice before I jump to agenda?

Commissioners? No, Miss Henry.

Okay, so the agenda the agenda has to basically is designed to tell the public what it is that you're going to talk about at the meeting. It's what's reasonably necessary to inform the public and everything you talk about as commissioners has to be reasonably related to the agenda item. Um the agenda also has to say when the public will have access to the location, not just when the meeting will start, but when the doors will open. uh unless it's virtual. Virtual, you don't really have to give that information. I still recommend um telling the public when how early they could log on, but [clears throat] um the statute doesn't really contemplate that. The statute predates virtual virtual meetings. Um here's here's the the key point for or agenda. If it's not on the agenda, you can't talk about it. Any new items, including those that might be brought up at a call to the public, have to wait for a future agenda, a future meeting. So, you can, like I said, call to the public, someone raises something and you want to talk about it, you can ask that it be put on the next agenda. Um, and you can talk about it as as a commission then. Now again, hearings might work a little bit differently. Um they are not part of the open meeting. So you'll have to look at your own specific hearing um regulations and and laws with respect to that in terms of what the notice for those needs to be.

I know there are some that require very specific um items to be noticed. I have a question quickly. So, so uh can you maybe share what the difference is between discuss and respond? Earlier you said during the call to the public that we could respond um um or there's an option to respond. If we respond and somebody brings something up during the call to the public that's not on the agenda, is that a violation?

Yes. If it's on the agenda during discussion of that agenda item, you can address what the person said in the call to the public. You don't do that during the call to you do that during the agenda. Understood. If it's not on the agenda, you don't touch it. Got it. Other than to say, staff, study that or staff, let's put that on a future agenda. Okay. The only time you respond would be if there's criticism. Oh, got it. Understood. Then you can respond at the end of the call to the public. Does that make sense? Is that clear?

Clearly. Yes. Thank you, Miss Henry. I guess I'm confused. We could have 25 call to the publics and let's say the first one, the call to the public expressed criticism. So you're saying that we have to wait until the 25th call to the public to respond to the first call to the public about criticism. Why can't we respond at that time? That's what the law says.

I'm sorry. That's what the law says and that's that's really the short answer.

Um you you're not allowed to respond until the very end. Um, and let me I think you'll notice on some of these um slides there are statutes at the very bottom. And I'm flipping through my paper one to see if I can find it quickly um for this, but those are the statutes that are relevant to um to the topic. And uh so call to the public is is covered by ARS 38-43101 subsection H and that will tell you all you need to know about that part of it. Um and there's a link to it on that particular slide.

Thank you. I believe Commissioner Huat has another question. Well, no comment. Maybe that's just our time to count to 10. So we uh we're and and I I would suspect that that at the end of the call to the public uh then if we have a response to a criticism, we I would assume keep it general, you know, like a general response, not specific to the person that made it. Would that be appropriate? How you want to handle that is up to you. I do know there are some uh public bodies that have a policy of just not responding to criticism. Probably smart smart probably a smart move. Yeah.

Thank you.

It can infuriate people and um it definitely doesn't feel good when you're the one being criticized, but there there are pluses and minuses there. So, you can decide as a commission how you want to handle that. Um okay. So let's talk now about minutes. You are not required well you're required to create minutes or a recording of the meeting. So if you record the meeting and post that then you don't need to create minutes. Um there is a retention issue if you're going to record a meeting but then use it to create a transcript or minutes. Um, very few public bodies actually do that, so I won't get into it. If there are questions about it, I'm happy to answer those. Um, this is a it's a hard to read slide, but this is the list of what needs to be in the mix. I will say the public generally believes and and many public bodies believe that there should be more in the minutes but this is the legal minimum. Um doesn't mean you can't have uh big ones to note is that you have to have a description of what was considered. You have to have an accurate description and it is actually accurate in in the statute. It says that of all legal actions proposed, discussed or taken. Um you have to record by name how each member voted. Um and then I'll let you read the rest of it. Those are just the that's taken directly from the statute.

um access to the minutes. As soon as the the minutes um I'm sorry, within three working days after the meeting, you have to have the minutes or the recording available to the public. Um now, note that doesn't mean you've approved the minutes. It means you've created them. So, you have to create them pretty much right away and you have three days to post them or make them available. Now, you can put on there draft or not yet approved or something like that to indicate that it's not approved, but you still have to have them available. Um, so went through minutes pretty quickly. Any questions there,

commissioners? No, ma'am.

Okay, here's the other really big topic. um executive sessions. This is one that um a lot of people have questions about and there's a lot of mistrust out there about executive sessions. So um I like to spend a little time on this. Um here are the key points about an executive session. The public is excluded. You can only have them for very specific reasons. It has to be on the agenda. You can't go into executive session until you've had um a vote to go into executive session. Everything you talk about is confidential. Um I'm going to skip the next one. You have to have minutes um or recording of the executive session. Now, that's confidential. It doesn't get released, but you still have to have them. No action permitted. This is one. Um, there actually was a big court case, an opinion that came down. It was an appeals court uh in March of this year. Uh, the city of Flagstaff had voted in executive session to appeal uh a lawsuit that against them. And when push came to shove, the uh judge threw out the whole thing saying that they weren't authorized to appeal because it wasn't voted on in a public open meeting. So, um I'm going to talk more about that in a second, but it's a big it's my slide now. Okay. So, there are a bunch of reasons for executive sessions. They're all found in the statute that's on this slide and you can take a look at those, but there are a few that I want

to highlight. The first one, um, and I'm sure you are probably familiar with this one, is discussion or consultation for legal advice with the attorney. That means you're asking for advice, your attorney is giving you advice. That's the limit there. as soon as you start talking about what to do about that advice, that can't be done in executive session. Um, now the the caveat there though is that if say you're in contract negotiations or there's a lawsuit pending um or your settlement talks about a lawsuit, then you can talk to the attorney and about your positions and and instruct the attorney about how to move forward uh in terms of positions. But that's that's not very common I don't think. Um the one that's more common is that consultation. Um if you have to discuss records that are exempt from public records law. So if you have a confidential document, you can discuss that in executive session. Um I don't know that employment issues will come up a whole lot for you, but also uh security plans, emergency um security uh evacuation things, um blueprints, those sorts of things. Uh you may be able to discuss in executive session. Now, your notice of executive session has to be on the agenda for the full meeting. And it can't just say executive session um for one of the reasons stated in that statute. It has to say exactly which one. So if it's going to be for

consultation with the attorney, you have to say it's with consultate for consultation with the attorney, not just a blanket statement. And you still have to give a little description about what it is that you're going to be talking about. Um, you can't just say for consultation with the attorney. You have to say consultation with the attorney about X. Now, you don't have to give away any of the confidential secret reasons that you are going into executive session. Then I don't mean secret in a negative way. Um but you have to give enough so that the public understands why executive session what the purpose of the executive session is. Um the minutes for executive session are confidential. Uh so even though you have to keep them and what you have to keep is very similar to the minutes um for a regular uh open session. uh they just don't go anywhere beyond a few people people who are there uh and say a commissioner who couldn't be at the at the executive session. Um there's some issues with executive sessions. Uh first one, first thing, think of uh executive session as the old Las Vegas tagline. What happens in executive session stays in executive session. Um but what happens if someone discloses that? Just something to think about. Even though it's legally confidential, can can you really ensure that? Um, and then the taking legal action, that's the lawsuit I was just talking about, um, where the appeals court threw out an

appeal for that reason because they did not vote in in open session. So, that was a real quick recap of executive session. Um any comments, questions about that before we jump into what happens when you violate open meeting commissioners? No, Miss Henry.

So what happens if you violate open meeting? Why it matters um is that anything you do in violation of open meeting law becomes null void. Um now you can ratify certain things but there's a time limit for that. Um but without doing that everything you do is is gone. Um and there are penalties that can be harsh and and we talked about that at the very beginning. Um so the penalties for the body as a whole are is making the action null and void. Now, like I said, you can ratify um a decision. So, if you make a decision within uh uh in violation of open meeting law within 30 days of when that happened or or when you should have known it happened, you can then hold a vote in open session on an agenda to ratify that decision and then it becomes okay. Um now as an individual violating open meeting law can be a little um [clears throat] more uh scary to use that word. Um anyone who violates um open meeting law or knowingly helps someone violate it. So knowingly is key when it comes to helping. um you can get that civil penalty. Um the the second violation can be up to $500, but the third violation and forward is $2500. Now, that comes out of your own pocket. You cannot be reimbursed for that. So,

um incentive to not be responsible for a violation. Um now if the whole board is or whole commission is doing something in violation and you think it's wrong this is a good incentive for you to stand up and say no I think this is wrong this is a violation and and really make it known that you object to the action because you can actually be um not held liable for that action. month, which can save you some some heartache. Um, there's some more penalties here. If a public officer knowingly violated with the intent to deprive the public of information, and I read that to you because it's important. So, if you have ulterior motives or or a nefarious plan, um not only can you be subject to fines, you can be removed from office, um and anyone who helped you doing that, um you can be charged with attorney fees for the the other side. So, that can get very steep. So, so bottom line, just don't violate open meeting law intentionally. Now, what happens when you discover that there's a violation? Um, if you're in the thick of things, if you're in the middle of a meeting, you can recess, take a step back, and and evaluate what's going on. Uh the question is can you resolve the issue right then and continue with the meeting or do you need to stop the meeting altogether? That's something you can decide based on the

the specific situation. You can also then ratify um and I just talked about that so I won't go into it anymore. Now there is a question about whether a single violation nullifies the entire meeting um or just just that one action. So let's say you voted on something that you shouldn't have voted on. Is the whole meeting gone or um just oops sorry um or just that one piece? And I will say there's an attorney general opinion that that in that that seems to indicate that it would be just that one piece. So all hope is not lost if there's one small violation or one violation within the um so as you saw a second ago uh we're almost at the end here. So, are there any questions about um about violations or about anything else?

Commission, any questions? No, Miss Henry.

Okay. So, now I'm just going to share a final thought with you and this one is a big one. This is the key to all open meeting law. when in doubt, make a decision in favor of openness. And I will tell you, the legislature felt so strongly about this public policy that they actually put a statute, put it in statute. This this one mentioned here, ARS 38-431.09, specifically says exactly what I have written on this slide. So, with that said, I put some resources for you here. Um, the agency handbook, uh, a link to that. The, uh, booklet that you all have is also on our website. And so, there's a link to that. Um, that actually might be to the old one which has been updated. So, I would recommend going to the next one, our our website, and you can hunt around in there. We have a whole bunch of other resources on open meeting and public records if you're interested in that. And then these are some attorney general opinions. Uh there are a lot of really good ones related to open meeting. I will say they are not binding, but as the chief prosecutor for open meeting law, the attorney general opinions um they hold a lot of weight. So worth worth looking And then the very last thing, um, if you have questions and we don't get to discuss them today, this is my information. Uh, please feel free to get in touch, um, any time. And, uh, if you I have the main number here because I made the slide before Nick joined us and I didn't know what his email would be.

That, um, if you call that number, you will get either one of us. And, um, yeah. So, that's that. Feel free anytime. We're always happy to answer questions and be a resource. We'd rather talk to you on the front end than the back end. So, with that, um, open it up to additional questions. Thank you, Miss Henry. Commissioners, any questions? Thank you very much. It was educational. Thank you, Mr. Bacon. Appreciate your time. And with that, again, thank you for being with us this evening. With that, we're adjourned. Thank you.