Legal Corner: 2018 Legislative Changes Affecting Local Public
The second regular session of the Fifty-third Legislature adjourned on May 4, 2018. Although numerous bills were passed and will be summarized in the League’s New Laws Report, this article will highlight two pieces of legislation that directly affect our elected or appointed officials.
Changes to the Open Meeting Law
The Open Meeting Law (“OML”) is designed to provide transparency and openness to the public about matters that affect the city or town and to understand who is influencing the officials making those decisions. This legislative session the Attorney General’s Office introduced H.B. 2065 (Laws 2018, Ch. 229), which made several changes to the open meeting law.
Expanded Definition of “Meeting”
The bill adds to the definition of “meeting” by codifying that the use of electronic communications are considered when determining if a meeting is taking place. “Meeting” is defined as “the gathering, in person or through technological devices, of a quorum of members of a public body at which they discuss, propose or take legal action, including any deliberations by a quorum with respect to such action.” See A.R.S. § 38-431 (4).
H.B. 2065 expands the definition of meeting to include “a one-way electronic communication sent from one member of a public body to a quorum of the members and that proposes legal action; and an exchange of electronic communications among a quorum of the members of a public body that involves a discussion, deliberation or legal action on a matter that may likely come before the body.” This includes an email from one member of the council to a quorum of the council proposing legal action (e.g. suggesting a lawsuit). Additionally, an email exchange between two council members (copying the other members of the council) discussing a matter that may come before the public body is a meeting under the OML. Despite the remaining members of the council being silent or not engaging in the email exchange, it is still a quorum of members involved in a discussion that should come before the council in a public session.
Although it appears significant, these additions were already considered to be a “meeting” because of a 2005 Attorney General opinion that stated “e-mail communications involving discussions, deliberations or taking legal action by a quorum of the public body concerning a matter that may foreseeably come before the public body for action…constitutes a meeting through technological devices under the OML.” Therefore, these additions will be codified into the law, but do not change current practice.
Additionally, the legislation requires that minutes contain a record of how each member voted; a record of the names of members who propose each motion; and any speaker who presents material to the council. Most of the cities and towns were already recording this information so this change also does not greatly impact the process at the meeting.
New Penalties for Violating the OML
The Attorney General has additional tools to target repeat offenders of the OML. The bill maintains the option for any person (or the Attorney General or county attorney) affected by an alleged violation to file a lawsuit in superior court against the full council to force compliance with the OML. See A.R.S. § 38-431.07. However, the legislation adds that the Attorney General can bring an action against an individual member of the public body who knowingly violates the OML. The court may impose a penalty as appropriate for a first offense, a civil penalty of up to $500 for a second offense, and a maximum civil penalty of $2,500 for a third or subsequent offense. The council or city or town is prohibited from paying, or reimbursing, the civil penalty for any member who is found to knowingly violate the OML so the penalty must be fully borne by the person who committed the violation. Additionally, a person can be removed from office if the court finds that the person knowingly violated the OML.
Lastly, the bill adds a safe harbor provision for situations when a council member may object to a course of action that leads to an open meeting law violation. If a violation occurs and the court finds that person who might otherwise be liable for an open meeting violation objected on a public record to the action of the council, the court may choose not to impose a civil penalty on that person.
Based on this legislation, there is more incentive to recognize and affirmatively state if the council may be about to commit an OML violation and halt the action. But if a violation is found and enforced by the Attorney General, any objection on the record may by recognized by the court and those that objected to the action leading to the violation may be spared from paying any civil penalties.
Campaign Finance Changes for Local Candidate Committees
Currently, a city or town candidate committee is not required to register until the candidate receives contributions or makes expenditures, in any combination, of at least $1,100. When the candidate meets the threshold amount, the candidate is required to register by filing a Statement of Organization and campaign finance reports at a designated time depending on the candidate’s election cycle.
H.B. 2078 (Laws 2018, Ch. 77) lowers the threshold amount that triggers candidate committee registration from $1,100 to $500 for city and town candidates and exempts the $500 threshold from the biennial increase every two years. When the legislation becomes effective, a city or town candidate must register as a candidate committee when the candidate receives contributions, or makes expenditures, in any combination, of at least $500. This restores the law prior to the 2016 campaign finance law repeal and rewrite that was discussed in the May 2016 Legal Corner article.
H.B. 2078 will be effective on Friday, August 3, 2018. Candidates who currently are not required to register as a committee may have to file a Statement of Organization and begin filing reports. For example, the current threshold is $1,100 for committee registration so a council candidate who has received contributions or made expenditures totaling $800 prior to the effective date has not had to register as a committee. On August 3, 2018, the threshold is $500 and the candidate’s $800 is over that threshold amount. Therefore, pursuant to A.R.S. § 16-906 (A), the candidate has ten days from the effective date to file a Statement of Organization because the candidate meets the new committee registration requirements. Additionally, the candidate must begin filing campaign finance reports. State law requires that candidate committee reports be cumulative for the election cycle to which they relate. See A.R.S. § 16-926. Campaign finance forms can be accessed from your city or town clerk.
Conclusion
Both H.B. 2065 and H.B. 2078 make changes that impact the activities of local elected and appointed officials. It is important to review these changes and ask any questions to the clerk or attorney prior to the August 3, 2018 effective date. These new laws and others will be explored in greater detail in the League’s New Laws Report and throughout the summer at various trainings. For more details on these two pieces of legislation, please visit the Legislature’s website by selecting the links below.
