open meetings dan clark director msu local government center page 24-30 study commission handbook

Open Meetings

Dan ClarkDirector

MSU Local Government Center

Page 24-30 Study Commission Handbook

Suit claims school violated open meetings lawMissoulian, May 8, 2004

MISSOULA (AP) — Two people are suing the county school district, claiming it violated the state's open meetings law by meeting secretly to discuss its budget and the closing of three schools this summer. … The lawsuit contends board meetings at which members discussed budget balancing options were illegally held in private without required public notice and with no minutes kept.

Nugent gives opinion on council e-mailsMissoulian, Oct. 24, 2007

Missoula City Council members must abide by the law and conduct the public's business in the open because people have the right to watch - and hear - council deliberations, City Attorney Jim Nugent said Tuesday. …Deliberations by electronic communication are no exception to public meetings laws, Nugent said in the opinion. In fact, he said, if six of 11 council members are e-mailing each other during a meeting about an agenda item, they may create a de facto meeting - which the public must be able to monitor. The Missoulian's review of council members' electronic conversations during several meetings in August and September revealed cases where deals were made prior to votes, or amendments were floated by e-mail before being proposed to the larger group. In addition, council members used e-mails to make fun of or to discount comments by members of the public and one another.

The Golden Rule of Open Government

The business of government is the

people…

Government is not designed to be efficient, it’s designed to be fair.

Handout on Good Governance Principles; Adapted from Graham, Amos and Plumptre (2003)

Good Governance Principle

Application and Description

Legitimacy and Voice

Participation: individuals should have a voice in decision-making, either directly or through legitimate intermediate institutions that represent their intention. Such broad participation is built on freedom of association and speech, as well as capacities to participate constructively.Consensus Orientation: good governance mediates differing interests to reach a broad consensus on what is in the best interest of the group and, where possible, on policies and procedures.

Direction Strategic Vision: leaders and the public have a broad and long-term perspective on good governance and human development, along with a sense of what is needed for such development. There is also an understanding of the historical, cultural and social complexities in which that perspective is grounded.

Performance Responsiveness: institutions and processes try to serve all stakeholders.Effectiveness and Efficiency: processes and institutions produce results that meet needs while making the best use of resources.

Accountability Accountability: decision-makers in government, the private sector and civil society organizations are answerable and responsible to the public, as well as to institutional stakeholders. Accountability differs depending on the organizations and whether the decision is internal or external.Transparency: built on the free flow of information with processes, institutions and information directly accessible, and sufficient and applicable information provided.

Fairness Equity: all have opportunities to improve or maintain their well-being.Rule of Law: legal frameworks are fair and enforced impartially.

Source: Pew Research Center for the People & the Press, The People and Their Government: Distrust, Discontent, Anger, and Partisan Rancor. April, 2010, http://people-press.org/report/606/trust-in-government

http://people-press.org/report/606/trust-in-government


Constitution to Action

• 1972 Constitutional Convention• Legislative Sessions• Local Policies and Rules of Procedure • Attorney General Opinions• Supreme Court Decision

MT Constitution Article II

Section 8. Right of participation The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.

Section 9. Right to knowNo person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

Part 2. Open Meetings

Public boards, commissions, councils, and other public agencies in this state exist to aid in the conduct of the peoples' business. It is the intent of this part that actions and deliberations of all public agencies shall be conducted openly. The people of the state do not wish to abdicate their sovereignty to the agencies which serve them. Toward these ends, the provisions of the part shall be liberally construed (2-3-201).

What constitutes a “public meeting”?

1. A quorum is present in person or by electronic means (2-3-202 MCA)

2. Hear, discuss or act on matters within its jurisdiction (2-3-202 MCA)

3. Minutes are taken (2-3-212 MCA)

4. Meeting is properly noticed (47 Op. Att'y Gen. No. 13)

5. Citizens allowed to comment – on agenda and not on agenda but within the jurisdiction (2-3-103 MCA)

6. Meeting is open and the press must be permitted to record the meeting (2-3-211 MCA)

Municipal Entities Subject to Right of Public Participation -- Limit on Public

CommentAny municipal entity, including an advisory board, commission, and committee of a City Council, is subject to the right of the public to participate in any action that is of significant interest to the public. However, those municipal entities need not permit public comment on matters that are not of significant interest to the public. 51 A.G. Op. 12 (2005).

Notice and Opportunity to be Heard

Each agency shall develop procedures for permitting and encouraging the public to participate in agency decisions that are of significant interest to the public (2-3-103).

Adequate notice“Forty-eight hours is generally considered sufficient to notify the public of contemplated action. …The amount of notice given should increase with the relative significance of the decision to be made.” (47 Op. Att'y Gen. No. 13) Joseph P. Mazurek, Attorney General 1998.

Can the Commission act on an issue that is not on the agenda?

1. Yes

2. No

3. It depends

Notice and Opportunity to be HeardNon-agenda items

The agenda for a meeting, …must include an item allowing public comment on any public matter that is not on the agenda of the meeting and that is within the jurisdiction of the agency conducting the meeting. However, the agency may not take action on any matter discussed unless specific notice of that matter is included on an agenda and public comment has been allowed on that matter. Public comment received at a meeting must be incorporated into the official minutes of the meeting (2-3-103).

Can a commission member join a meeting via a conference call?

Skype?

• Participate in entire meeting• Can hear all participants• Adopted policy included in Rules of

Procedure

2-3-212. Minutes of meetings -- public inspection.

(1) Appropriate minutes of all meetings required by 2-3-203 to be open shall be kept and shall be available for inspection by the public. (2) Such minutes shall include without limitation: (a) date, time, and place of meeting; (b) a list of the individual members of the public body, agency, or organization in attendance; (c) the substance of all matters proposed, discussed, or decided; and (d) at the request of any member, a record by individual members of any votes taken.

Minutes

Minutes 101

1. Minutes are the official record of the proceedings of a deliberative assembly, board, or committee.

2. Should contain a record of what was done at a meeting, not what was said by the members.

3. Who takes the minutes? Secretary? Staff member? What about an absence?

4. Procedures for approval of minutes – when do minutes become minutes?

5. Motions and decisions should be clearly stated (maker, second, final outcome).

Minutes 101

6. Amendments / corrections in red ink, not rewritten.

7. Minute-taker; sit near President / Chair / Presiding Officer

8. Note late arrivals / early departures

9. Impersonal: no comments like “heated,” “lengthy,” “moving”

10. Write-up minutes ASAP

11. The secretary or recorder signs the minutes (especially the official record).

Closing a Meeting

• 2-3-203 MCA• Page 29 Study Commission Handbook

Email & Email Addresses

• Electronic communication can create a defacto meeting– Information only– No discussion

• Strongly encouraged to create a public email address that will serve as a firewall between your public life and your private life

TITLE 2. GOVERNMENT STRUCTURE AND ADMINISTRATION

CHAPTER 6. PUBLIC RECORDS Part 1. Public Records Generally

2-6-102 guarantees "every citizen" the right to inspect and take copies of public writings.

Public Records

Does the purpose of request and use of records matter?

• The purpose for which the records are requested has no bearing or relevance on the right of the requester to receive the records.

Which of the following is public information?

1. IQ Test Scores

2. Medical Records

3. Salaries

4. Personnel Evaluations

5. Family Problems

Public Records

The Supreme Court has ruled that certain personnel records could be closed, including matters related to family problems, health problems, employee evaluations, military records, IQ test results, prison records, drug and alcohol problems, and information "most individuals would not willingly disclose publicly“ Montana Human Rights Division v. City of Billings, 199 Mont. 434, 649 P.2d 1283 (1982),

Public Records

What physical form of records are covered?

• 2-6-110 states that information "in electronic format or other nonprint media" is open to the public, subject to the same restrictions that apply to

information in printed form.

Public Records

Are certain records available for inspection but not copying?

• Records are available under the act for copying as well as inspection.

Managing Meetings

Dan Clark & Betsy Webb

MSU Local Government Center

What Makes A Meeting Effective?

Rules of Procedures

• It is strongly encouraged that every local government, board or committee develop and adopt Rules of Procedures.– Defines roles and responsibilities– Useful training tool for newly

elected/appointed officials

Purpose of the Agenda

• Sets the expectations for the members of the governmental body and the public.– Items of business that will be addressed.– The order in which they will be considered.

Agenda• Roll Call of the Board• Pledge of Allegiance• Approval of Minutes of the Previous Meeting• Public Comment on agenda items• New Business such as:

– General Business– Reports– Public Hearings (required by law or ordinance)– Other Scheduled Matters

• Public comment on any public matter not on the agenda• Unscheduled Matters (for discussion purposes only)• Adjournment

Unscheduled Matters• An item that is NOT listed on the agenda for the current

meeting may be discussed during the session at the discretion of the Commission.

• However, the purpose of such discussion shall be to decide whether or not to schedule the item for discussion and vote on a subsequent agenda.

• As a general rule no matter of significant interest to the public shall be decided by the Commission without prior notice to the public as a scheduled Council agenda item.

Parliamentary ProcedureRules of Democracy

• Commonly accepted way in which a group of people come together, present and discuss possible courses of action, and make decisions.

Principles

• The will of the majority• The right of the minority to be heard• Protection of the rights of absentees• Courtesy and justice for all• Consideration of one subject at a time.

Fundamental Rights

• The rules of parliamentary law are constructed upon a careful balance of the rights:– of the majority– of the minority, especially a strong minority

(greater than one third)– of individual members– of absentees– of all these together

Procedure for Handling a Main Motion

• How the Motion is Brought Before the Assembly– A member addresses the chair: "Mr./Madam

President," "Mr./Madam Chairman," or by other proper title.

– The chair recognizes the member– The member makes the motion: "I move that (or

'to')...“– Another member, without rising, seconds the

motion: "I second the motion," – The Chair repeats the motion and asks for the

question.

Motions in the Affirmative

• “I move that we reject the request by the Boy Scouts to sell fireworks on Main Street.”

• “I move that we allow the Boy Scouts to sell fireworks on main Street.”

Motions• Amendments• Debate• Motion to Rescind or Reconsider • Breaking a tie• Regulate or cut off debate (Previous Question)• Division of the House• Point of Order• Orders of the Day• Table the motion

Main Motion & Amendments

• I move to waive the user fee for the community center for the All Class Reunion on June 26-30, 2008.

• I move to amend the main motion by adding the dates July 1-2.

• I move to amend the amendment by dropping July 2.

Division of the Question

• I move that we allow the high school roping team to use the rodeo grounds and allow parking of trucks and horse trailers on main street.

Proper decorum in debate must be observed:

• Remarks must be germane to the question before the group.

• Speakers should speak loudly and clearly. • Speakers should refrain from attacking

another member's motives. • Remarks should be addressed through the

chair. • "No one is to disturb another in his speech by

hissing, coughing, spitting, speaking or whispering to another, etc." -Thomas Jefferson

Robert’s Rules of Order

• Motions should be clearly stated.• Ownership of the motion

– No “friendly amendments.”– No single-handed withdrawal of a motion.

• Unanimous consent.


• Only one MAIN motion can be pending at any given time.

• Other classes of motions take precedence over main motions.– Subsidiary, privileged, and incidental

• Body as a whole must agree to end debate.• 2/3rds vote required to change rules and

close debate.• Chairperson may (should?) vote at any time.


• Decisions can be reviewed– Reconsider

• Moved by a member who voted with prevailing side.

• Must be moved in a timely manner.• Reopens debate; it does not change the

decision.

– Renew, rescind, amend.• Contracts are still binding.


• Postpone to a definite date versus table.• Role of the chair in clarifying the

member’s intent.

Calling the Questions• Calling the question. A member, tired of debate,

states, “Madam Chair, I call the question” and expects debate to end immediately.

• Roberts Rules of Order gives no such power to any one individual.

• A member may make a motion to end debate or “move the previous question”. The motion requires a second and a two-thirds majority vote to pass. Once passed, the chair must put the question to a vote.

UNDERSTANDING THE GRAY IN ETHICS

What is ethics?

Why is ethical behavior important in Local

Government?

How do ethics apply to your role as a Board Member?

DefinitionsEthics are:

• Good and bad • Moral duty and obligation • Standards of right and wrong• Principles of conduct• Fairness and equity

What is trust?

Why is it important for a governing body to be

trustworthy?

Source: Pew Research Center for the People & the Press, The People and Their Government: Distrust, Discontent, Anger, and Partisan Rancor. April, 2010, http://people-press.org/report/606/trust-in-government



Trust is . . . Trust occurs when parties holding certain favorable perceptions of

each other allow this relationship to reach the expected outcomes.

A trusting person, group or institution will be freed from worry and the need to monitor the other party’s behavior, partially or entirely.

Trust is an efficient means for lowering transaction costs in any social, economic and political relationship.

Trust comes into play every time a new policy is announced.

Trust

Easy Come?

Or

Easy Go?

2-2-103. Public trust -- public duty. (1) The holding of public office or employment is a public trust, created by the confidence that the electorate reposes in the integrity of public officers, legislators, and public employees. A public officer, legislator, or public employee shall carry out the individual's duties for the benefit of the people of the state.

Ethics

• Conflict of interest?• Appearance of impropriety?

How would it pass the:“Front Page” test?

“Hair on the back of your neck” test?

“Stink” test?

The Golden Rule of Open Government

The business of government is the

people…

Government is not designed to be efficient,

it’s designed to be equitable.

Good Governance Principles

Good Governance

Principle

Application and

Description

Legitimacy and Voice

Participation: voice in decision-making; freedom of association and speechConsensus Orientation: mediate differing interests

Direction Strategic Vision: broad and long-term perspective on human development; understanding of historical, cultural and social complexities

Performance Responsiveness: institutions and processes try to serve all stakeholdersEffectiveness and Efficiency: produce results that meet needs while making the best use

of resources

Openness Accountability: answerable and responsible to the publicTransparency: free flow of information

Fairness Equity: all have opportunities to improve or maintain their well-beingRule of Law: legal frameworks are fair and enforced impartially

Source: Adapted from Graham, J., Amos, B. & Plumptre, T. (2003). Principles for Good Governance in the 21st Century. Ottawa: Institute on Governance.

Ethics Resource Center2007 Government Ethics Survey

• Random sample: – Federal, state, and local

– 774 gov’t employees, age 18+, working 20+ hours/week, margin of error +/- 3.5%

• www.ethics.org

Have you observed at least one type of misconduct in the last twelve months?

0%0%

1. Yes

2. No

ERC— 63% said Yes.

Do you work in an environment that is conducive to misconduct?

0%0%

1. Yes

2. No


Which of the following have you seen?

1 2 3 4 5 6 7 8 9 10

0% 0% 0% 0% 0%0%0%0%0%0%

ERC26%26%

23%

1. Abusive behavior

2. Putting one’s own interests ahead of organization’s

3. Internet abuse

4. Lying to employees

5. Misreporting hours worked

6. Improper hiring practices

7. Safety violations

8. Lying to stakeholders

9. Discrimination

10. Environmental violations

If you were to see misconduct, would you report it?

0%0%

1. Yes

2. No


Would you expect to experience retaliation for reporting misconduct?

0%0%

1. Yes

2. No


I would prefer reporting misconduct to:

1 2 3 4 5 6

0% 0% 0%0%0%0%

ERC49%3%12%

7%

3%23%

1. Supervisor

2. Higher management

3. Other responsible person (including ethics officer)

4. Someone outside organization

5. Hotline

6. Other

Does your local government provide comprehensive compliance and ethics

program resources?

0%0%

1. Yes

2. No


Do you have a well-implemented compliance and ethics program?

0%0%

1. Yes

2. No


I would describe our ethical culture as:

1 2 3 4

0% 0%0%0%

ERC9%40%43%8%

1. Strong

2. Strong-leaning

3. Weak-leaning

4. Weak

Government Ethics Survey

· 48% of gov’t employees say that they encounter situations that invite misconduct

· Fraud takes place in government as much as it does in the private sector

Take Home Message:

“There is a strong risk of losing the public trust that is essential for any government to maintain. …eroded trust hinders government's effectiveness.” ERC President Dr. Patricia Harned

How Do You Create An Ethical Culture In Local Government?

KnowledgeEducation

Structural Changes

Cultural Change

• Prohibits conflict between public duty and private interest 2-2-101

• Sets forth rules of conduct and ethical principles 2-2-101

Part 1: Code of Ethics

2-2-103. Public trust -- public duty. (1) The holding of public office or employment is a public trust, created by the confidence that the electorate reposes in the integrity of public officers, legislators, and public employees. A public officer, legislator, or public employee shall carry out the individual's duties for the benefit of the people of the state.

Definitions 2-2-102• “Business” - partnership, trust, foundation, or any

organization, whether or not operated for profit

• “Compensation” - $ or economic benefit

• “Gift of substantial value” - $50 or more– Does NOT include 2-3-102(3)(b)

• Return or give to charity• Food and beverages • Educational materials• Public award recognizing public service • Educational activity

Rules of Conduct 2-2-104• Accept a gift of:

– substantial value ($50 or more) or – a substantial economic benefit tantamount

to a gift 2-2-104(1)(b) • (i) That would tend to improperly influence a

reasonable person to depart from their duties• (ii) That a reasonable person knows is

primarily for the purpose of rewarding you.

Rules of Conduct 2-2-104

• Disclose or use confidential information to further your own interests 2-2-104(1)(a)

Economic benefit: – Loans at a substantially lower rate– Compensation at a substantially higher

rate 2-2-104(2)

Ethical Requirements 2-2-105

• Acquire interest in a business that could benefit from official actions 2-2-105(2)

• Perform an official act directly and negatively affecting a competing business. 2-2-105(5).

• Assist any person for a fee in obtaining a contract, claim, license, or economic benefit 2-2-121(2)(c)-(d)

• Engage in substantial financial transactions with someone you supervise or inspect 2-2-121(2)(b)



• Use public time, facilities, equipment, supplies, personnel, or funds for private business purposes 2-2-121(2)(a)

• … Solicit support for or opposition to any election or ballot issue 2-2-121(3)

• Public officer or public employee shall, prior to acting in a manner that may impinge on public duty, including the award of a permit, contract, or license, disclose the nature of the private interest that creates the conflict.

Disclosure 2-2-131

Part 3: Nepotism

• Bestowal of political patronage by reason of relationship rather than of merit (2-2-301).

• Appoint any person related by:– Consanguinity within the 4th degree

or– Affinity within the 2nd degree (2-2-302

and 303)

Table of Consanguinity

Part 3: Nepotism

• Penalty = misdemeanor 2-2-304

• $50 - $1,000 fine and/or jail for 6 months

• Exceptions 2-2-302(2)

THANK YOU!!Please contact us with any questions:

Dan ClarkDirector

Local Government CenterDepartment of Political Science

Culbertson Hall 235, P.O. Box 170535 Montana State University Bozeman, MT 59717

http://extn.msu.montana.edu Tel: (406) 994-6694

E-mail [email protected]

open meetings dan clark director msu local government center page 24-30 study commission handbook

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