Presentation on theme: "Public Service Orientation For Statewide Elected Officials and Agency Heads Presented by the Arizona Attorney General’s Office April 2011."— Presentation transcript:
Public Service Orientation For Statewide Elected Officials and Agency Heads Presented by the Arizona Attorney General’s Office April 2011
Why is this Training Mandatory? “It is the public policy of Arizona that all public officers and employees shall discharge their public duties in full compliance with applicable laws concerning ethical conduct.” 1992 Ariz. Sess. Laws, ch. 134, § 1. A.R.S. § 38-592(A) requires all state officers and employees to receive public service orientation within six months after the date of hire, election or appointment.
Overarching Principles You are here to serve the public – not for personal benefit. The public resources you have available to you are to help you serve the public – not for personal benefit.
Role of the Ethics Laws Provide accountability Prevent even the appearance of impropriety Protect the Public Punish wrongdoers
Conflicts of Interest ARS §§ 38-501 to -511ARS §§ 38-501 to -511 Applies to all public officers and employees of incorporated cities or towns, of political subdivisions of the state and any of its departments, commissions, agencies, bodies or boards.Applies to all public officers and employees of incorporated cities or towns, of political subdivisions of the state and any of its departments, commissions, agencies, bodies or boards.
ARS §§ 501 – 511 trump any provisions to the contrary, whether in law, charter, ordinances or other provisions.ARS §§ 501 – 511 trump any provisions to the contrary, whether in law, charter, ordinances or other provisions. Other prohibitions may be added, but these are the minimum.Other prohibitions may be added, but these are the minimum.
Purpose of Conflict of Interest Laws To avoid situations where a public employee’s personal or financial concerns conflict with the unbiased performance of the employee’s public duties.To avoid situations where a public employee’s personal or financial concerns conflict with the unbiased performance of the employee’s public duties. To insure that public resources are used for public purposes.To insure that public resources are used for public purposes.
Contracting: A public employee of a public agency who has, or whose relative has, a substantial interest in any contract, sale, purchase or service to such public agency shall disclose that interest and refrain from voting upon or participating in any manner as a public employee in such contract, sale or purchase. A.R.S. §38-503(A).A public employee of a public agency who has, or whose relative has, a substantial interest in any contract, sale, purchase or service to such public agency shall disclose that interest and refrain from voting upon or participating in any manner as a public employee in such contract, sale or purchase. A.R.S. §38-503(A).
Decision Making: Any public employee who has, or whose relative has, a substantial interest in any decision of a public agency shall disclose such interest and refrain from participating in any manner in such decision. A.R.S. § 38-503(B).Any public employee who has, or whose relative has, a substantial interest in any decision of a public agency shall disclose such interest and refrain from participating in any manner in such decision. A.R.S. § 38-503(B).
Supplying materials or services: No public employee of a public agency shall supply any equipment, material, supplies or services to such public agency, unless pursuant to an award or contract let after public competitive bidding. A.R.S. § 38-503(C).No public employee of a public agency shall supply any equipment, material, supplies or services to such public agency, unless pursuant to an award or contract let after public competitive bidding. A.R.S. § 38-503(C).
Substantial Interest A direct or indirect pecuniary or proprietary interest of a public officer or employee or their relative that is not one of the “remote” interests listed in A.R.S. § 38-502(10).A direct or indirect pecuniary or proprietary interest of a public officer or employee or their relative that is not one of the “remote” interests listed in A.R.S. § 38-502(10).
Conflict of Interest Relatives: spousespouse childchild grandchildgrandchild parentparent grandparentgrandparent siblings (including half-brothers and sisters)siblings (including half-brothers and sisters)
More relatives spouses of siblingsspouses of siblings the parent, brother, sister or child of a spouse (i.e., in-laws)the parent, brother, sister or child of a spouse (i.e., in-laws) Does not include first cousinsDoes not include first cousins
Remote Interests Non-salaried officer of a non-profit corporationNon-salaried officer of a non-profit corporation Landlord/tenant of a contracting partyLandlord/tenant of a contracting party Attorney of a contracting partyAttorney of a contracting party Member of a non-profit cooperative marketing associationMember of a non-profit cooperative marketing association Stock ownership of less than 3% of the shares of a corporation for profit, if the income provides less than 5% of your total annual incomeStock ownership of less than 3% of the shares of a corporation for profit, if the income provides less than 5% of your total annual income
Remote Interests, cont’d. Reimbursement of expensesReimbursement of expenses Recipient of public services generally availableRecipient of public services generally available Relatives of School Board members, other than spouses or dependentsRelatives of School Board members, other than spouses or dependents Interests of other public agenciesInterests of other public agencies Class interests (your interests are the same as everyone else’s in the group)Class interests (your interests are the same as everyone else’s in the group)
Before a Conflict Arises Think of possible ways a conflict could occurThink of possible ways a conflict could occur File initial conflict of interest forms with the person in your department designated to keep such records. List any holding by you or a relative that may require disqualification in future matters.File initial conflict of interest forms with the person in your department designated to keep such records. List any holding by you or a relative that may require disqualification in future matters.
Evaluating Whether A Conflict Exists A violation of the conflict of interest laws does not require intent It doesn’t matter whether you actually will be influenced – what matters is whether you meet the criteria set forth in the law
Three questions: 1.Could the decision affect, either positively or negatively, an interest of the officer or a relative? If the answer is no, stop. There is no conflict of interest.If the answer is no, stop. There is no conflict of interest.
If yes to Question 1: 2.Is the interest a pecuniary or proprietary interest? Could it affect a financial interest or ownership interest? If the answer is no, stop. The interest will not disqualify you. If yes, go to Question 3.If the answer is no, stop. The interest will not disqualify you. If yes, go to Question 3.
If yes to Question 2: 3. Is the interest one that is statutorily designated as a remote interest? If you have a remote interest = no conflict.If you have a remote interest = no conflict. If you have an interest that is not remote = conflict.If you have an interest that is not remote = conflict.
When a Conflict Arises File a conflict of interest form which fully discloses the substantial interest.File a conflict of interest form which fully discloses the substantial interest. Every agency or governmental unit must maintain a conflict file.Every agency or governmental unit must maintain a conflict file. Disclose sufficient information to allow the public to understand the nature of the conflict.Disclose sufficient information to allow the public to understand the nature of the conflict.
And Must REFRAIN from voting or participating in any mannerfrom voting or participating in any manner in any discussion or decisionin any discussion or decision of the contract, sale, or purchase.of the contract, sale, or purchase.
Conduct After Leaving Government Service A public officer shall not receive compensation for representing someone before an agency on which the officer serves or served within the preceding 12 months concerning any matter in which the officer participated personally during the officer’s service. A.R.S. § 38-504(A).
For two years after leaving government service, a public officer or employee shall not disclose or use for personal profit any information acquired during their public service that has been clearly designated as confidential. A.R.S. § 38-503(B)
Consequences of Violating the Conflict of Interest Statutes Negative publicity and public opinionNegative publicity and public opinion Civil suit, costs and attorneys’ feesCivil suit, costs and attorneys’ fees Criminal penaltiesCriminal penalties –Intentional violation = class 6 felony –Negligent violation = class 1 misdemeanor Forfeiture of public employmentForfeiture of public employment Nullifying contractsNullifying contracts
Additional Compensation May not accept any money, tangible thing of value, or financial benefit, directly or indirectly, for any service rendered in a matter pending before the public agency. A.R.S. § 38-505(A), see also Arizona Constitution, Art. 22 § 17.May not accept any money, tangible thing of value, or financial benefit, directly or indirectly, for any service rendered in a matter pending before the public agency. A.R.S. § 38-505(A), see also Arizona Constitution, Art. 22 § 17.
Confidential Information May not use or disclose confidential information acquired in the course of official duties. A.R.S. § 38-504(B).May not use or disclose confidential information acquired in the course of official duties. A.R.S. § 38-504(B). Duty exists during employment and two years after.Duty exists during employment and two years after.
Use of Position May not use position to secure a benefit that would not ordinarily be provided in the performance of official duties. A.R.S. § 38-504(C).May not use position to secure a benefit that would not ordinarily be provided in the performance of official duties. A.R.S. § 38-504(C).
Illegal Gratuity or Reward A public officer who knowingly asks or receives any gratuity or reward (or promise thereof) for doing any official act is guilty of a class 6 felony. A.R.S. § 38- 444 –May also violate A.R.S. § 38-505(A) or (C)
Bribery Soliciting, accepting or agreeing to accept any benefit with the understanding that it may influence official conduct (vote, opinion, judgment, exercise of discretion or other action) – A.R.S. § 13-2602 – Class 4 felony
Extortion A State official commits theft by extortion by knowingly obtaining or seeking to obtain property or services by means of a threat to take or withhold some future action as a public servant. –A.R.S. § 13-1804(A)(7) –Class 4 felony
Gifts From Lobbyists It is a class 1 misdemeanor for a State officer or employee to: Knowingly accept gifts worth more than $10 in any calendar year or any gift designed to influence official conduct from a lobbyist, lobbyist’s principal. A.R.S. § 41-1232.02(J)
Lobbyist Entertainment Ban It also is a class 1 misdemeanor for a State officer or employee to: Accept tickets, expenditures or vouchers to any sporting or cultural event or activity from any lobbyist, public body, lobbyist’s principal, or any person acting on behalf of a lobbyist or principal. A.R.S. § 41- 1232.08
State v. Ross Program designed to protect low income seniors by freezing a portion of their property valuation. Personal information gathered; Assessor’s office maintained list of participants.
State v. Ross, cont’d. Ross supplied list of names and addresses of participants to reverse mortgage lender. Although he planned to split commissions resulting from the sale of reverse mortgages, no sale and no money resulted.
State v. Ross, cont’d. County assessor was convicted of violating the conflict statute, by attempting to secure a valuable benefit that would not normally accrue through his official duties and that manifested an improper influence with respect to his duties as Assessor.
State v. Ross, cont’d. On appeal, court reversed, holding that although Assessor’s use of the information may have raised ethical and public records issues (obtaining public records for a commercial purpose w/o paying fee), it did not violate conflict of interest statute because there was no action related to his official duties.
Cannot use public property for a private purpose Must receive public benefit in return for the expenditure or use of public propertyMust receive public benefit in return for the expenditure or use of public property
Public Property PhotocopiesPhotocopies TelephonesTelephones FacsimileFacsimile VehiclesVehicles E-mailE-mail Office postage meterOffice postage meter Office suppliesOffice supplies
Private Purposes Private corporation’s businessPrivate corporation’s business Officer or employee’s personal businessOfficer or employee’s personal business Selling your car or waterbedSelling your car or waterbed Letter to MomLetter to Mom Kid’s term paperKid’s term paper Candidate’s campaign literatureCandidate’s campaign literature
Theft Taking or unauthorized use of State property or services. A.R.S. § 13-1802. Examples: –Personal long distance calls on State’s dime –Using State’s postage or courier service for personal business –Unauthorized use of a State vehicle, A.R.S. § 13-1803 –Computer tampering, A.R.S. § 13-2310
Fraud Knowingly making false representations to obtain a benefit. A.R.S. § 13-2310 Examples: –Filing false timesheet, leave report, travel expense report or per diem voucher
Integrity of Public Records Effective government requires reliable information. Falsifying public documents violates the public trust.
Tampering With a Public Record Making a false written record purporting to be a public record or stealing, destroying, altering, concealing or falsifying a public record with intent to deceive or defraud is a class 6 felony. A.R.S. § 13-2407
A public officer having custody of any public record who steals or destroys, mutilates, defaces, alters, falsifies, removes or secretes the record or any part, or who permits another to do so, is guilty of a class 4 felony. A.R.S. § 38- 421(A)
Unauthorized Expenditure of Public Funds An expenditure of public funds made without proper authorization is an illegal act, and both the state official approving the payment and the recipient are liable to the state. A.R.S. § 35-154 Any State officer or employee who illegally withholds, expends or converts state money to an unauthorized purpose is personally liable for the amount plus 20%. A.R.S. § 35-196.
Use of State Computer to Access Internet Pornography Except as required in conjunction with a bona fide agency approved project, a State employee is prohibited from using State computer equipment to access, download, print or store information depicting nudity or sexual activity. A.R.S. § 38-448(A)
Sources of Disclosure Req’ts Arizona Revised Statutes Sections 38-541 through 38-545 Counties, cities and towns have authority to enact additional ordinances, rules, resolutions or regulations that govern the filing of Financial Disclosure Statements by their public officers and candidates.
What Is the Purpose? Disclosure of personal financial information allows the public to assess whether a government official has a financial interest that conflicts with the official’s duties.
Who Must File? You must file a Financial Disclosure Statement if at any time during the past calendar year you were: a statewide officer, whether elected or appointed a judge pro tempore serving the appellate courts or the superior court full time or on a continuing, scheduled and compensated basis.
With whom must I file? Arizona Secretary of State Attn: Election Services Division 1700 West Washington Street, 7th Fl. Phoenix, Arizona 85007
By When Must I File? Between January 1 and January 31 of the year immediately following any calendar year in which you served as a public officer, even if for only one day. Within 60 days of taking office, if you are newly appointed to fill a vacancy in a statewide office.
What period is covered? Annual disclosures cover January 1 through December 31. (Even if you only served for a day and then resigned, retired or left office for another reason.) Disclosures for those who are newly appointed cover the 12 month period ending with the last full month prior to the date of taking office.
How do I get the forms? Statewide officers receive a Financial Disclosure packets from the Secretary of State’s office. The packets are mailed or delivered in late November.
How do I get the forms? Newly appointed statewide officers receive a Financial Disclosure packet in the mail from the Secretary of State Election Services office.
How do I get the forms? Newly appointed judges pro tempore receive the packet from the presiding judge or court administrator. Printable versions are available through the Web site www.azsos.gov. or upon request from the Secretary of State Election Services office.www.azsos.gov
What if I don’t file? A civil penalty of $50 for each day the Statement is late, until it is filed. If found to have knowingly filed an incomplete or a false disclosure, you may be found guilty of a class 1 misdemeanor.
What if I have questions? The Secretary of State’s website has a Financial Disclosure Statement handbook that gives more information, including information on judges and candidates and has a sample disclosure statement. http://www.azsos.gov/election/financial_dis closure/Financial_Disclosure_Statements_ Handbook.pdf
LIMITATIONS ON POLITICAL AND CAMPAIGN ACTIVITIES
State employees are subject to certain limitations on campaign and political activities. Restrictions apply irrespective of party affiliation or intended support of candidates or ballot measures. “Mini-Hatch Act” A.R.S. § 41-771 to -772
“It is the public policy of this state... That government programs be administered in an unbiased manner and without favoritism for or against any political party or group or any member in order to promote public confidence in government, governmental integrity and the efficient delivery of governmental services and to ensure that all employees are free from any express or implied requirement or any political or other pressure of any kind to engage or not engage in any activity permitted by this section.” A.R.S. § 41-772(L)
Another goal is to insure that employment and advancement in government service are not dependent on political performance, and that government employees are free from pressure to vote in a particular way or perform political chores in order to curry favor with their supervisors rather than act on their own beliefs. Ariz. Att’y Gen. Op. I83-134
Prohibited Political Activity State employees SHALL NOT: –Use any political endorsement in connection with appointment to a state position –Use or promise to use official authority or influence to influence the vote or political activity of another or for compensation –Be a member of any national, state or local committee of a political party –Be an officer or chairman of a committee of a partisan political club
Prohibited Activity, cont’d. –Be a candidate for any paid public office –Hold any paid elective public office –Take part in the management or affairs of any political party or any partisan or nonpartisan campaign or recall effort Note: this prohibition does not include initiative campaigns
Permitted Political Activity State Employees MAY (off duty and not at public expense): –Attend meetings to become informed on the candidates and issues –Sign nomination or recall petitions –Make contributions to candidates, political parties or campaign committees –Circulate nomination or recall petitions
Permitted Activities, cont’d. –Advocate the election or defeat of any candidate –Solicit or encourage contributions to be made directly to candidates or campaign committees –Participate in an initiative or referendum campaign, circulate and sign initiative or referendum petitions
Permitted Activities, cont’d. –Serve on an election board if appointed by the Board of Supervisors without the recommendation of the county chairman of any party –Serve as deputy registrar as long as appointed without nomination or recommendation of a political party –Serve as a member of the governing board of a common or high school district or community college district
Permitted Activities, cont’d. –Assist in voter registration drives –Attend political rallies, meetings or fundraisers –Host political fundraisers –Be a member of a political party or club –Distribute campaign literature –Make campaign speeches for candidates in partisan elections
Permitted Activities, cont’d. State employees MAY (on and off duty): –Vote –Express opinions on candidates and issues –Wear political buttons, badges or t-shirts –Display a political bumper sticker on personal vehicles
Exemptions Elected State officials and State officers appointed by the Governor or Legislature are exempt, and may engage in any form of political activity, as long as no State resources are used for this purpose. A.R.S. § 41-771 exempts certain other state officials and employees from some or all of the limitations on political activity.
Why Do I Need To Know About Limitations On Political Activity? Because you could be subject to criminal prosecution for fraud or corruption, as well as imposition of hefty civil penalties Because your subordinates are subject to these limitations, and you need to be aware of what they are
Anti-coercion Provisions A.R.S. §§ 41-772(D) – (F) prohibit the use of direct or indirect threats of discrimination, reprisal, force or any other adverse consequence such as loss of benefits, rewards, promotion, advancement or compensation to get an employee to participate, refrain from participating, or to stop participation in permitted political activity.
Consequences for Violation Violation of the anti-coercion provisions of A.R.S. § 41-772 is a class 6 felony. Violation of any of the other provisions is a class 1 misdemeanor. Employees are subject to suspension or dismissal. Negative publicity and public opinion.
Procurement Code A.R.S. § 41-2616(A): “A person who contracts for or purchases any material, services or construction in a manner contrary to [the Procurement Code]... Is personally liable for the recovery of all public monies paid plus twenty percent of such amount and legal interest... And all costs and damages....”
A.R.S. § 41-2616(B): “A person who intentionally or knowingly contracts for or purchases any material, services or construction pursuant to a scheme or artifice to avoid the Procurement Code is guilty of a class 4 felony.”
The Arizona legislature identified eight purposes of the code: 1.Simplify, clarify and modernize the law governing procurement by the state. 2.Permit the continued development of procurement policies and practices. 3.Make the procurement laws as consistent as possible among the various state agencies. 4.Provide for increased public confidence in the procedures followed in public procurement.
5.Ensure the fair and equitable treatment of all persons who deal with the procurement system of this state. 6.Provide increases economy in the state procurement activities and maximize to the fullest extent practicable the purchasing value of public monies of this state. 7.Foster effective broad-based competition within the free enterprise system. 8.Provide safeguards for the maintenance of a procurement system of quality and integrity.
Common Themes: 1.Treat all vendors equally. 2.Competition – best product or service at best price. 3.Confidence in the system.
“Public money” includes all money held by state officials in an official capacity. State v. Mecham, 173 Ariz. 474, 844 P.2d 641 (App. 1992).
Incompatible Employment, Nepotism, Whistleblowing, Resign to Run and Discrimination
Incompatible Employment -Outside employment may create a potential conflict of interest. -State officials must be very sensitive to potential conflicts or even the appearance of a conflict. -Includes unpaid and private positions. -Agency policies frequently require disclosure and approval of outside employment.
Nepotism – A.R.S. 38-481 It is unlawful for any public officer to appoint or vote for appointment of any person related by affinity (marriage) or consanguinity (blood relative) within the third degree to a position within the public officer’s department
Nepotism – Also Prohibited: To appoint, vote for or agree to appoint, or to work for, suggest, arrange or be a party to the appointment of any person in consideration of the appointment of a person related to him within the degree provided by this section.
Third Degree of Consanguinity Parents (1) Children (1) Siblings (2) Grandparents (2) Grandchildren (2) Great Grandparents (3) Great Grandchildren (3) Aunts and Uncles (3) Nieces and Nephews (3)
Third Degree of Affinity Spouse (1) and Spouse’s: –Parents (1) –Children (1) –Siblings (2) –Grandparents (2) –Grandchildren (2) –Great Grandparents (3) –Great Grandchildren (3) –Aunts and Uncles (3) –Nieces and Nephews (3)
Nepotism Violation of nepotism statute is a class 2 misdemeanor Issue is to avoid questions about whether you are exercising independent judgment in the best interests of the State Questions may arise even when the appointment does not technically violate the statute, ie. domestic partner or fiance
Whistleblowing A.R.S. 38-532(A) prohibits State officials from taking reprisal against State employees who disclose information of public concern to a public body. Purpose is to provide safe avenue of reporting for employees who witness violations of law and to expose unethical and unlawful conduct in State government.
Matters of Public Concern Issues that the employee “reasonably believes” are: –Violations of the law –Mismanagement –Gross waste of public monies –Abuse of authority
Disclosure Requirements Must be in writing Must contain the date of the disclosure Must contain the name of the employee making the disclosure Must include the nature of the violation If possible, must include the date(s) on which the violation allegedly occurred.
Reprisal Includes: Any adverse personnel action involving: –Termination –Demotion –Change of duties –Transfer or reassignment –Disciplinary or corrective action –Performance evaluation –Other significant change in terms and conditions of employment
Resign to Run Law A.R.S. 38-296 prohibits elected State officials from running for nomination or election for another salaried local, state or federal office EXCEPT during the final year of the term being served. State employees seeking elected public office must resign upon submitting nomination papers.
Discrimination and Harassment State and federal laws prohibit discrimination and harassment in employment based on: –Race –National Origin –Color –Religion –Sex –Age –Disability –Genetic information
Examples of Discrimination Providing different pay, benefits, or other terms and conditions of employment Segregating jobs or work sites Engaging in or tolerating harassment because of membership in a protected class Failing to provide a reasonable accommodation for disabled persons Treating people differently because they have complained about discrimination or participated in a discrimination investigation (retaliation)
Accommodating Disabled Employees Employers are required to provide disabled persons with reasonable accommodations for the hiring process, to perform job duties, and to offer an equal opportunity to enjoy the benefits and privileges of employment. Accommodation must not create an “undue hardship” for the employer.
What is a reasonable accommodation? Any change in the work environment, the job duties, or the manner in which the job is performed that allows a person with a disability an equal opportunity to perform the duties. Must be REASONABLE and EFFECTIVE. Employer must engage in an “interactive process” regarding accommodation.
1) Not Knowing What a Public Record Is “Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.” A.R.S. § 39-121 Everything a government agency or employee creates or receives that relates to public business (even if on personal computers) “other matters” – they are treated exactly the same as “public records”
Records “ Record” means all books, papers, maps, photographs, or other documentary materials, regardless of physical form or characteristics … made or received by any governmental agency in pursuance of law or in transaction of public business. A.R.S. § 41-1350
Examples of Public Records Calendars Final Reports Draft Reports Legal memoranda Policies and procedures Maps Police reports Training videos and materials Photographs Personnel records, including salaries Data bases E-mail Correspondence to/from Permits Applications Agendas/Minutes Budgets (financial information) Annual reports Travel claims Phone bills
2) Failure to Have, Update, or Follow Record Management System Make and maintain appropriate records Preserve records Adhere to retention schedules Properly destroy records
Duty to Make and Maintain Appropriate Records - A.R.S. § 41-1350 Containing adequate and proper documentation of the governmental body’s: organization functions policies procedures and essential transactions
Duty to Preserve Records – A.R.S. § 39-121.01(C) It is the duty of the head(s) of each public body to protect records from d eterioration, mutilation, loss, or destruction Class 4 (officers) or Class 6 (non-officer) Felony, A.R.S. § 38-421—to steal, destroy, mutilate, deface, alter, falsify, remove, or secrete a public record
Duty to Follow Retention Schedules Duty to submit a records retention schedule to the Director of the Arizona State Library, Archives and Public Records for records not covered in the general schedule or because there is a valid reason to retain for a longer period of time Duty to follow Library & Archive’s general retention schedule when it applies-- http://www.lib.az.us/ –click “records management” –click “retention schedule and manuals” (or “forms” for those) –click appropriate general retention schedule
Destruction of Public Records Must be in compliance with statutes, retention schedule, and other legal obligations (e.g., record hold for litigation, court order) Only if Director of Library & Archives determines records have no further value: –administrative –legal –fiscal –research –historical
3) Not Disclosing Promptly A.R.S. § 39-121.01(D) and (E) require the public agency to “promptly furnish” public records “Promptly furnish” is not defined by statute Depends on what is reasonable under the circumstances Acknowledge and communicate Access is deemed denied if a custodian fails to promptly respond How long would it take if you wanted it?
Factors that the Court Considers in Interpreting “Promptly” Public body’s resources—public body’s process for locating, reviewing, and producing records Nature of the request—does the request ask for records covering multiple years and involving multiple persons? Content of records—does the request ask for records that contain confidential information that must be evaluated and redacted? Location of the records—are they readily available or in storage?
4) Not Knowing the Exceptions Reasons to Withhold Records: Confidential by law Privacy Best Interests of the State
Confidentiality Made so by law, not by a rubber stamp Made confidential by statute, rule, or a recognized privilege –Constitution –Statute (state and federal) –State Agency Rule (force and effect of law) –Court Rule (e.g., Arizona Supreme Court Rule 123)
Examples of Confidential Records Income tax returns Student education records Medical records Vital records Lists provided at the end of Ch. 6 of the AZ Agency Handbook (revised 2001) and will be revised this year
Criminal Penalties – A.R.S. § 39-124 Class 6 felony if state or local government employee knowingly releases home address or telephone number of peace officer, judge, justices, commissioner, public defender, prosecutor, and certain other persons listed in A.R.S. § 39-123 with intent to –Hinder an investigation –Cause physical injury to individual or family member –Cause property damage to property of individual or family member
Privacy Standard: –Disclosure would invade privacy and –that interest outweighs the public’s right to know about operations of government
Examples of Private Information Family’s interest in privacy outweighed public interest in 911 tape that recorded child’s crying because transcript provided sufficient information Teachers’ privacy interest in birth dates outweighed public interest in conducting criminal background checks (names plus birth dates)
Best Interests of the State Standard: The burden is on the government to show that the public body would be seriously impaired in the performance of its duties Best interests includes not only the agency’s interest but also the overall interests of the government and the people Must balance the adverse impact on government against the public right to be informed about operations of government Note: Fear of litigation does not preclude disclosure
Remedies for Wrongful Refusal to Disclose - A.R.S. § 39-121.02 If denied access, any person may file a special action in superior court, A.R.S. § 39-121.02 If a public entity gets sued, and the person filing the action “substantially prevails,” the public body may have to pay: –Costs –Attorney’s fees –Damages, A.R.S. §§ 39-121.02(B)
5) Failure to Recognize E-Mail Issues Not a secure medium unless encrypted Once sent, you lose control –It is a public record if it relates at all to public business –If it’s on a government computer, someone else may review it and decide whether it should be released Pitfalls –Failure to retain or retaining too long –Use of home computers –Inappropriate content—do not say it if you would not want to see it on the front cover of the newspaper Purely personal e-mail is not a public record even if it is created on a government computer
6) Failure to Redact Redact protected information and release the rest –Use black out rather than white out –Photocopy after marking Cannot charge fees for redacting Practical pointer: Ideally public bodies should keep confidential information in one record and public information in another
7) Charging Unauthorized Fees May impose a copying fee which includes: –Time –Equipment –Personnel used in reproducing the copies (per page cost) May charge postage costs May not charge for search or redaction time –A.R.S. § 39-121.01(D)
8) Not Understanding What May Be for a Commercial Purpose 1.Use of a public record for the purpose of sale or resale 2.Obtaining names and addresses from public records for the purpose of solicitation 3.Sale of names and addresses to another for certain purposes A.R.S. § 39-121.03(D))
If for a Commercial Purpose Person must provide a statement setting forth the commercial purpose for which the records will be used A.R.S. § 39-121.03(A) Note: Newspaper’s use of public records in its paper is not a commercial purpose
Commercial Purpose Fee A.R.S. § 39-121.03(A) Reasonable fee for cost of time, materials, equipment, and personnel in reproducing Portion of the cost to the public body for obtaining the record Value of the reproduction on the commercial market as best determined by the public body
Public Record Law Resources Arizona Agency Handbook—www.azag.gov Chapter 6 covers public records Arizona Attorney General’s Office no enforcement, gives advice to clients Arizona Ombudsman— www.azleg.gov/ombudsman/public_records.ht ml –Investigates complaints and provides training on public access laws
Public Policy Meetings conducted openly. Notices and agendas with information reasonable necessary to inform public of matters to be discussed or decided. Construe in favor of open and public meetings. All persons shall be permitted to attend and listen.
“Public Body” All boards and commissions of this state or political subdivisions, and other multimember governing bodies of departments, agencies, institutions and instrumentalities of the state or political subdivisions, All standing, special or advisory committees or subcommittees of, or appointed by, the public body. All quasi-judicial bodies, All corporations and other instrumentalities whose boards of directors are appointed or elected by the state or political subdivision.
“Meeting” A gathering of quorum of members of public body, In person or through technological devices, At which they discuss, propose or take legal action, including any deliberations by a quorum.
Application Before a meeting During a meeting After a meeting
Before a Meeting Post statement on website stating where all public notices will be posted. Post all meeting notices on website and give such additional public notice as is reasonable and practicable. Meetings require at least 24 hours notice to public and members, except for “actual emergency.”
Before a Meeting (cont’d) Notice should identify the public body and date, time, and place of meeting. (Include street address and room number.) Notice may include agenda or agenda may be separate document. Agenda must include listing of specific matters to be discussed, considered, or decided.
Before Meeting (cont’d) Executive session agenda may describe matters more generally to preserve confidentiality and must include specific provision of law authorizing an executive session.
During the Meeting Discuss only matters listed on agenda and “other matters related thereto.” The Board may take action (vote) only in public session, and all voting must be “out loud.” Written votes or secret ballots are not permitted.
During the Meeting (cont’d) Call to the Public Summary of Current Events
Executive Session “Executive session” means a gathering of a quorum of Board members from which the public is excluded and which is authorized by A.R.S. § 38 ‑ 431.03(A). Vote to go into executive session. Permitted only in seven circumstances listed in the statute.
Executive Session (cont’d) 1.Certain personnel matters 2.Records confidential by law 3.Legal advice 4.Contracts or pending or contemplated litigation 5.Employee negotiations 6.International and interstate negotiations 7.Negotiations for the purchase or lease of real property
Executive Session (cont’d) The Board must “instruct persons who are present at the executive session regarding the confidentiality requirements” of the Open Meeting Law. Example of a simple instruction: “Minutes of and discussions made in executive session shall be kept confidential, except as provided by law.”
Executive Session (cont’d) The only persons who may be present in an executive session are: 1.The members; 2.Officers, appointees and employees who are the subject a personnel executive; 3.The auditor general; 4.“Individuals whose presence is reasonably necessary in order for the public body to carry out its executive session responsibilities.”
Executive Session (cont’d) In executive session, must not take legal action involving a final vote or decision, except for instructing its attorneys or representatives as provided A.R.S. § 38 ‑ 431.03(A)(4), (5), and (7). The public body must take a vote in public session before any legal action binds it.
Executive Session Caveats Avoid roving discussions in executive session. Executive session for legal advice: Attorney gives advice, members ask questions about advice, attorney answers questions.
Executive Session Caveats IMPORTANT: After executive session, in public session DO NOT REVEAL YOUR ATTORNEY’S LEGAL ADVICE OR ANY OTHER INFORMATION from the executive session!
After the Meeting Audio recording or minutes of public session meetings and all public session meetings of advisory committees and subcommittees must be available to the public within three business days after the meeting. Keep executive session minutes and information confidential, in a secure location.
After the Meeting (cont’d) Minutes or recording must include: Date, time, place of meeting, Members present and absent, General description of matters considered, Accurate description of all legal actions proposed, discussed, or taken, Names of persons, as given, who address public body.
Pitfalls Phoning Polling Emailing Online discussions/communications Chatting during recesses or after the meeting
Sanctions for Violation All legal action of the public body at a meeting held in violation of the Open Meeting Law is null and void unless ratified in accordance the law.
Sanctions for Violation Other possible consequences for violation of the Open Meeting Law: Civil suit for enforcement, fine of $500 per violation, payment of the plaintiff’s attorneys’ fees and costs; Removal from office; Other relief as the court deems proper; Adverse publicity; Loss of public confidence.