Best Practices to Ensure Compliance with Arizona s Open Meeting Law

Transcription

1 Best Practices to Ensure Compliance with Arizona s Open Meeting Law Chris Thomas, General Counsel/Director of Legal and Policy Services Julia Smock, ASBA Consultant

2 The Reason for this Presentation Good policies and practices by school districts can lead to easier compliance with the OML

3 1. Have a Well-Articulated and Easily Understood Speaking Policy a) Policy should be posted in board room and/or printed on speaker slips b) If conducting an open call to the public, read disclaimer from Agency Handbook "Call to the Public: This is the time for the public to comment. Members of the Board may not discuss items that are not specifically identified on the agenda. Therefore, pursuant to A.R.S (H), action taken as a result of public comment will be limited to directing staff to study the matter, responding to any criticism or scheduling the matter for further consideration and decision at a later date."

4 1. Have a Well-Articulated and Easily Understood Speaking Policy (cont.) c) Have speaker slips that require name and what item the speaker wants to speak to Can ask them whether they are a parent, staff member, community member, etc. but they do not have to tell you Do not ask them for address Can require all speaker slips be turned in before agenda item is brought up (no additional speaker slips after agenda item begins) Can allow comments to be read into record without going to microphone but not required to do so

5 1. Have a Well-Articulated and Easily Understood Speaking Policy (cont.) d) Can set reasonable time, place and manner restrictions Be consistent on enforcement appoint time keeper Can manage time allocated by asking for one or more representative speakers from a group e) Consider a policy that limits direct board engagement with the speaker whether speaker is speaking on item on the agenda or not

6 2. Use Forms from Arizona Attorney General s Office Agency Handbook a) Great resource written and revised by people that will be interpreting law for any violations ( b) Letter to Employee that is subject to ES and is being apprised of OML rights c) ES Notice Forms d) Sample agendas good to see to get a sense of what level of specificity is required on your agenda

7 3. Adoption of Agenda as Agenda Item a) Allows you to re-arrange the order of agenda items, table items, etc. puts public on notice as to what will be discussed and when Good practice is not to put specific times on agenda as to what will be discussed and when could limit public participation/observation b) Can move up items if public wants to talk about a particular item on the agenda c) Good time to remove consent agenda items to be placed in action/discussion items

8 4. Follow Agenda Policy from Policy Manual (BEDB) as Template a) Ensures that routine business items are covered b) Provides a good starting point for minutes that will be created later

9 5. Consent Agendas a) Great time saver; assists with focusing board on most important areas; encourages boards not to focus on routine business functions or authorities that boards have as a matter of law but which are intended to be delegated authorities related to school operations b) Should be for items that are ministerial in nature or unlikely to generate controversy c) Should have an easy policy for taking items off consent agenda Typical is to allow any one board member to pull item to allow discussion

10 6. Executive Sessions Legal Advice a) Make sure attorney is physically there or there by phone; session ends when attorney is not there Cannot have legal advice ES where legal memoranda is read and discussed without attorney present b) No discussion among board members or staff allowed c) All questions must be directed to attorney d) Advice should be of a privileged nature general legal education cannot be done in ES e) Well written suggested recommendation in board support material helpful gives board members a guideline

11 7. Well written suggested recommendation in board support material helpful a) Gives board members a guideline for making motions b) Provides board members guidance into what direction the administration suggests based on operational considerations and background research c) Makes it easier for transcription of minutes by board secretary

12 8. Minutes a) Use of digital recorders recommended easy to produce if not transcribed within 3 business days b) Requiring roll call votes or getting clarification of non-unanimous votes as to what the vote was c) School board approval d) Well written agenda leads to well written minutes e) Remember legal standard

13 9. Separate Board and Superintendent Current Event Summaries from Other Reports That Will Be Given a) Makes it clear that there are different rules for the two types One used for updates not intended to prompt discussion or action among board where there can be no discussion Other needs to meet the agenda specificity standards of any other agenda item and discussion and questions can be asked

14 10. Electronic Participation by Board Members a) Board members allowed to participate by technological means under the OML b) No right for board members to participate in this manner c) Can set policies for board member participation through technological means, including: No executive sessions Limitation on number or usage Requirement for pre-notice to participate through technological means Strong suggestion to limit use of text messaging or social media during board meetings

15 11. Use of to Communicate with Board Members a) Recommended that board members receive district addresses for tracking purposes and public records retention b) s should flow from or to superintendent, who can disseminate information among the board members and staff

16 11. Use of to Communicate with Board Members (cont.) c) Board members should not reply all or even ask clarifying questions of superintendent in an that goes out to all board members d) Even one board member, without subsequent discussion with other board members, can violate the OML if their message amounts to a proposal for legal action by the board

17 11. Use of to Communicate with Board Members (cont.) e) Use language from AGO that captures limitations of use: To ensure compliance with the Open Meeting Law, recipients of this message should not forward it to other members of the public body. Members of the public body may reply to this message, but they should not send a copy of the reply to other members.

18 11. Use of to Communicate with Board Members (cont.) A good practice for superintendents is to send out s to board members with board members addresses on the blind copy line and note in the body of the that message is going out to all board members; this has the effect of negating the reply-all mistake that board members might make since any reply will only go back to the sender of the message.

19 12. Courtesy or Soft Posting of Non- Meeting Agendas a) Not required under OML b) Puts public on notice when a quorum of the board may attend a school- or board- related event but no board business will be discussed among a quorum of board members Used for board training (ASBA events), school plays or athletic events and commencement exercises c) It lets the public see that the board/district takes the OML seriously

20 13. Limit Board Committees Instrumentalities or Subcommittees of Board also must follow the OML Board committees are created by having board sanction subcommittee by: Creating subcommittee on motion of the board Mentioning committee in board policy Requiring committee to bring recommendation to or report to the board Board committee different than superintendent committee

21 14. Board should get OML Training AS A BOARD once a year Allows everyone to ask questions in more informal setting Great for a retreat or study session ASBA provides training at very reasonable rates

22 Questions?