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1-11-12 Open Meeting PresentationOPEN MEETING LAW Emily Kane, Deputy City Attorney Presentation to Meridian Parks & Recreation Commission January 11, 2012 1 Does the Open Meeting Law apply to the MPR Commission? “All meetings of a governing body of a public agency shall be open to the public.” “Governing body” includes commissions that are authorized to make recommendations to a public agency. YES! 2 Does the Open Meeting Law apply to committees? Committees work on substantive issues and make recommendations to the larger Commission Commission recommendations are based in part on deliberations and information exchanged within committee meetings Article III, section 2 of Commission bylaws: “Meetings of committees shall comply with the Idaho Open Meetings Act.” YES! 3 The Attorney General says: The Open Meeting Law 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. 4 What does the open meeting law say? All Commission meetings shall: Be open to the public Provide the opportunity for all persons to attend Provide public notice via agenda 48 hours (regular) or 24 hours (special) prior to convening Be memorialized in summary minutes 5 What is a “meeting”? Meeting= Convening + Making a decision or Deliberating toward decision Decision= Quorum (5/9) + Action Deliberating= Receiving information Exchanging information Exchanging opinions 6 What is a “meeting”? QUIZ: Five Commissioners see each other at the Tree Lighting. They talk about Christmas cookie recipes. Is this a “meeting”? No. “Meeting” does not include informal gatherings without deliberations. 7 What is a “meeting”? QUIZ: Five Commissioners see each other at the Tree Lighting. They talk about whether Generations Plaza would make a good dog park. Is this a “meeting”? No. “Meeting” does not include informal gatherings, and this is not deliberation toward a decision. BUT: If the Commissioners are later asked to make a decision regarding this issue, the contents of this discussion should be disclosed on the record. 8 What is a “meeting”? QUIZ: Five Commissioners see each other at the Tree Lighting. They talk about a dog park concept plan that is on their upcoming agenda. Is this a “meeting”? Yes. While “meeting” does not necessarily include informal gatherings, whenever a quorum convenes and deliberates, even informally, this is a “meeting.” 9 What is a “meeting”? QUIZ: FOUR Commissioners see each other at a dinner party. They chat about a dog park concept plan that is on their upcoming agenda. Is this a “meeting”? No, because a quorum is not present. BUT: this conversation should not happen; it is “deliberation,” and violates the purpose of the law, if not the letter of the law. 10 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, voice mail, online posts Individual site visits, research, interviews Prohibited in judicial settings The Commission sits in a quasi-judicial capacity when it decides whether to make a recommendation to Council 11 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. 12 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. 13 How should I handle ex parte info? QUIZ: One Commissioner goes to the site of a proposed park that is to be discussed at an upcoming Commission meeting, in order to see what the site looks like. Is this appropriate? No. This is an off-record fact-gathering session not properly noticed or open to the public. It is an unfair ex parte collection of information. 14 How should I handle ex parte info? QUIZ: One Commissioner lives near the site of a proposed park that is to be discussed at an upcoming Commission meeting. She drives by the site every day on her way to and from work and has become familiar with what the site looks like. Must she alter her route to avoid seeing the site? No. While this may be an ex parte receipt of information, incidental observation as a citizen is not necessarily inappropriate fact-gathering. BUT: The Commissioner should disclose her experience on the record. 15 How should I handle ex parte info? QUIZ: The Commission wishes to see the site of a proposed park that is to be discussed at an upcoming Commission meeting. Is this appropriate? Yes, but since this is a meeting at which information will be received for the purposes of making a decision, it must be properly noticed, minutes must be taken, and the public must be allowed to attend. 16 Must we accept public testimony? The Open Meeting Law does not require that the Commission take public comments or testimony. BUT: The Commission may allow or request public comments or testimony. 17 Can we vote by written ballot? The law specifically prohibits decision by “secret” ballot or anonymous voting. Any written ballots must identify the voter and be available to the public. Written ballots are discouraged; voice votes specifically comply with the Open Meeting Law. 18 Can we ever meet in private? Executive session = A closed meeting. There are 10 specific exceptions to the open meeting requirement. It is unlikely that this Commission would conduct deliberations under any of these exceptions other than that for the purchase of real property. If you foresee the need to employ an exception to the Open Meeting Law, please consult your attorney in advance. 19 The Attorney General says: If in doubt, OPEN THE MEETING! 20 Can we meet by phone? The law specifically allows meeting by telephone conference call IF: Notice requirements are met At least one Commissioner is physically present at the noticed location The communications are audible to all attending Voting is not secret 21 Can we meet online? No. E-mail deliberations violate: Notice requirement Physical presence requirement Audible communications requirement Secret voting requirement Careful with social media too! Facebook “meeting” = violation 22 Can we meet online? QUIZ: One Commissioner asks his Facebook friends to provide opinions about a policy regarding smoking in parks that is to be discussed at an upcoming Commission meeting. Five commissioners post their opinions. Is this appropriate? No. Any time a quorum of Commissioners convenes (even online) and deliberates, it is a “meeting” subject to the Open Meeting Law. 23 Can we meet online? QUIZ: One Commissioner asks his Facebook friends to provide opinions about the smoking policy that is to be discussed at an upcoming Commission meeting. TWO commissioners post their opinions. Is this appropriate? No; while this may not violate the OML because there is no quorum, it is NOT ADVISED. The Open Meeting Law should not be evaded by holding smaller meetings with less than a quorum present. 24 Can we meet online? QUIZ: One Commissioner e-mails four other Commissioners to ask whether they would like him to bring copies of a proposed pathway dedication sign that is to be discussed at their next Commission meeting. Is this appropriate? Yes. While a quorum of Commissioners has convened, they are not deliberating. 25 What if we violate the 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. 26 Questions? Emily Kane, Deputy City Attorney 898-5506 ekane@meridiancity.org 3rd floor, Meridian City Hall 27