3-10-10 Open Meetings & Ethics Laws (short)1
OPEN MEETING LAWS AND ETHICS IN GOVERNMENT
Emily Kane, Deputy City Attorney
Presentation to Meridian Parks & Recreation Commission
March 10, 2010
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OPEN MEETING LAWS
Idaho Code sections 67-2340—67-2347
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What does the open meeting law say?
All Commission meetings shall:
Be open to the public
Provide the opportunity for all persons to attend
Be noticed 48 hours (regular) or 24 hours (special) prior to convening
Follow an
agenda
Strive to follow published/adopted agenda
Law allows amendment of agenda prior to or during meeting
Be memorialized in summary minutes
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What is a “meeting”?
Meeting= Convening
and Making a decision or
Deliberating toward decision
Decision= Quorum (half + 1)
+ Action
Deliberating= Receiving information
or Exchanging
information
or Exchanging opinions
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The Attorney General says:
“The requirement that the Open Meeting Law be complied with… should not be evaded by holding smaller meetings with less than a quorum present or by having a go-between contact each of
the governing body members to ascertain his/her sentiment.”
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How should I handle ex parte info?
Ex Parte Communication = Receiving, off the record, information or opinion regarding a matter pending before the Commission
Informal conversations with citizens
Unsolicited e-mail or
voice mail opinions
Individual site visits, research, interviews
The Commission may sit in a quasi-judicial capacity when it decides whether to make a recommendation; fairness is
required.
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The Idaho Supreme Court says:
Rule of thumb: Try to avoid ex parte communications.
“When a governing body deviates from the public record, it essentially conducts a second fact-gathering session without proper notice.”
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BUT… The Idaho Supreme Court also says:
Unsolicited or inadvertent ex parte communication is generally OK if disclose:
Identity of communicator
General description of communication
The Commission is not held to a standard of
disinterestedness.
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Can we meet by e-mail?
No. E-mail deliberations violate:
Notice requirement
Physical presence requirement
Audible communications requirement
Secret voting prohibition
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What if we violate the OM law?
Any action taken in violation of the Open Meeting Law is void.
Subsequent actions are also considered tainted and therefore void.
FIX: Do-over, from the beginning.
If an action is knowingly
taken in violation of the Law, the actor is subject to being individually sued and fined, and may be subject to criminal prosecution.
Any affected citizen can compel a suit.
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ETHICS IN GOVERNMENT
Idaho Code sections:
18-1351—18-1362
59-201—59-210
59-701—59-705
Meridian City Code: Title 1, Chapter 14
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Contracts with Officers
Idaho Code sections 59-201—59-210
Commissioners may not be “interested in” any contract with the City (no “self-interested contracts”)
Whether a City commissioner may lawfully enter
into a contract with the City is a fact-specific analysis: Please start by calling the City Attorney’s Office! We would be happy to assist you.
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Exceptions to self-interested contracts
STEP 1: Contact City Attorney’s Office!
Other suppliers scarce (<3 in 15-mile radius)
Contract necessary for disaster response
Commissioner has “remote interest” in contract + makes
written discloses to City Council + Council acknowledges RI on record and approves.
Unpaid commissioner strictly follows 18-1361A:
Contract competitively bid +
Cmr. does not participate
in preparing bid specs +
Cmr. does not participate in approving contract +
Written disclosure of interest & intent to bid to Council +
No violation of bidding laws
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What if I think I have a conflict?
STEP 1: Contact City Attorney’s Office!
If CAO finds no conflict: Proceed normally.
If CAO finds potential conflict:
Commissioner must submit to Commission/City Council a written statement
describing matter to be acted upon and nature of potential conflict.
Commission/Council obtains advisory opinion from CAO.
CAO advises Commission/Council to:
Allow conflicted Commissioner’s
participation notwithstanding conflict (usually conditioned on Commissioner following 18-1361A procedure); OR
Excuse conflicted Commissioner from further participation on the issue.
Commission/Council votes on whether to excuse.
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What if I violate an ethics law?
Accept bribe: $50,000 fine + 5 yrs. jail
Corrupt acts: $1,000 fine, 1 yr. jail
Unlawful City contract: $1,000 fine, 1 yr. jail
Fail to consult CAO + disclose conflict of interest: $500
civil fine
Violate Meridian City Code: $300 fine + reprimand, suspension, and/or discharge
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CONCLUSION
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Listen to your PANGS
Personal benefit? Call the City Attorney’s Office if you think you may have a conflict of interest; must separate service to personal and public interests
Avoid/Disclose: Avoid gathering
facts and opinions outside of noticed meetings as much as possible; if you can’t avoid, you must disclose
Notice: Agenda and minutes provide public portal to Commission actions; stick
to the adopted agenda as closely as possible
Gifts: Be wary of gifts given to you as a commissioner or from an interested party; always observe $50 limit
Self-interested contracts: Usually
allowed for unpaid commissioners, but statutory procedures must be followed
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Questions?
City Attorney’s Office, 898-5506
Bill Nary, City Attorney – bnary@meridiancity.org
Ted Baird, Deputy City Attorney – tbaird@meridiancity.org
Emily Kane, Deputy City Attorney – ekane@meridiancity.org
Andrea Pogue, Asst. City Attorney – apogue@meridiancity.org
Attorney General Legal Manuals
http://www2.state.id.us/ag/manuals/openmeeting.pdf
http://www2.state.id.us/ag/manuals/ethicsingovernment.pd
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