Legal Corner – Communicating Under the Open Meeting Law
Legal Corner – Communicating under the Open Meeting Law
Another election cycle is complete, and the League welcomed new members of city and town councils to the League’s Newly Elected Officials Training this month. One of the challenges for new members is adapting to the Open Meeting Law, which limits certain communications between a quorum of members of a governing body. This article discusses how to navigate this communication restriction and avoid a violation of the law.
The Purpose of the 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. The law 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 purpose is a guidepost to be used when questions arise about the law’s application. Pursuant to A.R.S. § 38-431(6), the city or town council is a public body under the law and subject to its requirements if the council is “meeting.” The foundational element of the OML is that a “meeting” must be conducted openly. This leads to the question of what is a “meeting” under the law.
A “meeting” is defined in A.R.S. § 38-431(4) as a gathering, in person or through technological devices, of a quorum of the council members at which the council discusses, proposes, or takes legal action, including any deliberations by a quorum with respect to that action. It includes one-way electronic communication by one council member that is sent to a quorum of the council and proposes legal action; and an exchange of electronic communications among a quorum of the council that involves a discussion, deliberation or the taking of legal action by the council concerning a matter likely to come before the council for action.
A quorum is a majority of the membership of the full council, and while a physical gathering of a quorum may be easy to spot and avoid, often the challenge occurs when a council member utilizes electronic communications with their colleagues on the council. Under the definition of “meeting” an email from one member of the council to a quorum of the council proposing legal action (e.g. suggesting a lawsuit) is a violation under the OML. Additionally, an email exchange between two council members discussing a matter that may come before the council is a “meeting” under the OML if a quorum of members is copied on the email exchange. Despite the remaining members of the council being silent or not engaging in the email communication, it is still a quorum of members involved in a discussion that should occur only before the council in a public session. This communication restriction can lead to frustration and confusion for members when determining who they can talk to about council matters.
Conversing with Other Council Members
First, it’s important to note that the OML does not prohibit all communications between council members. Council members may speak to each other anytime about matters unrelated to the council. Members may also attend trainings, conferences, or other social events with a quorum of the council if the quorum does not gather to discuss or deliberate council matters. The restriction is on the type of communication when a quorum is gathered because the public has a right to attend and listen to deliberations or discussions affecting their city or town. This purpose is thwarted if the council has already met behind closed doors or through e-mail or text messages to discuss and deliberate about a council issue before the public meeting. Second, avoiding a gathering of a quorum at one time but communicating separately to circumvent the OML is known as separate or serial communication and is prohibited. While a council member may discuss an issue with other council members as long as a quorum is not met, it is important that there is no deliberate effort to communicate those ideas to a quorum of the council through other means, including using staff to deliver messages or one council member polling other members on their vote. The good news is you can utilize staff to seek guidance on an issue and the staff may communicate general information to all council members such as council packets. Additionally, council members may talk to their constituents and the press.
Lastly, social media is a popular way of communicating with the public and your constituents. There is no specific guidance relating to social media use and the OML, so it’s important when you communicate to be careful that you are not “meeting” as defined by the law. Review your social media platforms to determine if there is a gathering of the quorum on social media: are your fellow council members “friends” or “followers?” Is the platform accessible only by permission or is it open to the public? Also, are you discussing matters expected to come before the council on social media? If so, you may want to limit these types of conversations with a quorum of the council members to avoid an inadvertent violation. Since there is no guidance and this is new territory, it is best to be cautious to avoid an OML complaint.
New Penalties for Violating the OML
The OML was changed this year to add penalties against individual violators of the law. While it is still allowable 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, the Attorney General is now authorized to bring an action against an individual member of the council 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 city or town is prohibited from paying, or reimbursing, the civil penalty and legal fees 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.
If a council member is in a position where he or she believes an OML violation is occurring by the council, the member may object on the record to the course of action leading to an open meeting law violation. If the matter is investigated and the court finds a violation occurred, the court may choose not to impose a civil penalty on the council member who objected. This safe harbor provision may protect individual members who disagree with a course of action that may lead to a violation.
The OML provisions are challenging and it is natural for some confusion to arise when trying to understand how to communicate with other council members. 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. Discussions or deliberations about council business with a quorum of other members, outside the view of the public, is a violation of the law. It is important to be careful in all communications, but especially when using technological devices to ensure that you don’t inadvertently communicate council business with a quorum of the council. For further assistance about the Open Meeting law, talk to your attorney, read the League’s “You as a Public Official” publication, or view the League’s OML webinar.