Open Meetings
Dan Clark
Director
MSU Local Government Center
Page 24-30 Study Commission Handbook
Suit claims school violated open meetings law
Missoulian, 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-mails
Missoulian, 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)
Application and Description
Good Governance
Principle
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://peoplepress.org/report/606/trustin-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 know
No 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.
2.
A quorum is present in person or by electronic
means (2-3-202 MCA)
Hear, discuss or act on matters within its jurisdiction
(2-3-202 MCA)
3.
4.
5.
6.
Minutes are taken (2-3-212 MCA)
Meeting is properly noticed (47 Op. Att'y Gen. No. 13)
Citizens allowed to comment – on agenda and not on
agenda but within the jurisdiction (2-3-103 MCA)
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
Comment
Any 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 Heard
Non-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 (23-103).
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
Minutes
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 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.
2.
3.
4.
IQ Test Scores
Medical Records
Salaries
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 Procedure
Rules 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.
Robert’s Rules of Order
• 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.
Robert’s Rules of Order
• 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.
Robert’s Rules of Order
• 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?
Definitions
Ethics 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://peoplepress.org/report/606/trustin-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 speech
Consensus 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 stakeholders
Effectiveness and Efficiency: produce results that meet needs while making the best use of
resources
Openness
Accountability: answerable and responsible to the public
Transparency: free flow of information
Fairness
Equity: all have opportunities to improve or maintain their well-being
Rule 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 Center
2007 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?
1. Yes
2. No
0%
No
Ye
s
ERC— 63% said Yes.
0%
Do you work in an environment that is
conducive to misconduct?
1. Yes
2. No
0%
No
Ye
s
ERC— 26% said Yes.
0%
Which of the following have you seen?
ERC
1. Abusive behavior
26%
2. Putting one’s own interests 26%
ahead of organization’s
3. Internet abuse
23%
4. Lying to employees
5. Misreporting hours worked
6. Improper hiring practices
7. Safety violations
8. Lying to stakeholders
9. Discrimination
10. Environmental violations
0%
0%
0%
0%
0%
0%
0%
0%
0%
1
2
3
4
5
6
7
8
9
0%
10
If you were to see misconduct, would you
report it?
1. Yes
2. No
0%
No
Ye
s
ERC— 67% said Yes.
0%
Would you expect to experience retaliation
for reporting misconduct?
1. Yes
2. No
0%
No
Ye
s
ERC— 20% said Yes.
0%
I would prefer reporting misconduct to:
ERC
1. Supervisor
49%
2. Higher management 3%
12%
3. Other responsible
person (including
ethics officer)
4. Someone outside
organization
5. Hotline
6. Other
7%
3%
23%
0%
0%
0%
0%
0%
0%
1
2
3
4
5
6
Does your local government provide
comprehensive compliance and ethics
program resources?
1. Yes
2. No
0%
No
Ye
s
ERC— 38% said Yes.
0%
Do you have a well-implemented
compliance and ethics program?
1. Yes
2. No
0%
No
Ye
s
ERC— 14% said Yes.
0%
I would describe our ethical culture as:
ERC
1. Strong
9%
2. Strong-leaning 40%
3. Weak-leaning 43%
8%
4. Weak
0%
1
0%
0%
2
3
0%
4
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?
Knowledge
Education
Structural
Changes
Cultural
Change
Part 1: Code of Ethics
• Prohibits conflict between public duty
and private interest 2-2-101
• Sets forth rules of conduct and ethical
principles 2-2-101
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 2-2104(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).
Rules of Conduct 2-2-121
• 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)
Rules of Conduct 2-2-121
• 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)
Disclosure 2-2-131
• 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.
Part 3: Nepotism
• Bestowal of political patronage by reason
of relationship rather than of merit (2-2301).
• 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 Clark
Director
Local Government Center
Department 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 daniel.clark@montana.edu