Ethics for Planners & Lawyers 2018 Land Use Update
Fundamentals of Local Government League of Arizona Cities and Towns August 23, 2018 Bill Sims America A Unique Experiment in Democracy The people of America now had the best opportunity and the greatest trust in their hands that Providence ever ordained to a small number since Adam and Eve. John Adams I venture to assert, that there is not upon the face of the earth
a body of people more happy or rising into consequence with more rapid stride, than inhabitants of the United States of America. Population is increasing, new houses building, new lands clearing, new settlements forming and new manufactures establishing with a rapidity beyond conception. Thomas Jefferson 2 America A Unique Experiment in Democracy We must always consider that we shall be as a city upon a hill the eyes of all people are upon us.
John F. Kennedy America is a shining city upon a hill whose beacon light guides freedom-loving people everywhere. Ronald Reagan 3 Pillars of Government
Open Government Unbiased Government Responsible Government Efficient Government 4 I. Open Government The Publics Information Open Meeting Laws Public Records Laws A people who mean to be their own governors must
arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both. James Madison (drafter of the First Amendment) 5 Purpose of Open Meeting Law It is the public policy of this state that meetings of public bodies be conducted openly and that notices and agendas for those meetings contain as such information as is reasonably necessary to inform the public of the matters to be discussed or decided. A.R.S. 38-431.09.
6 Open Government What is a Public Body? Definitions: A.R.S. 38-431 All boards and commissions of political subdivisions, all multimember governing bodies of departments, agencies, institutions and instrumentalities of the political subdivisions, including without limitation all corporations and other instrumentalities whose boards of directors are appointed or elected by the state or political subdivision, including standing, special or
advisory committees or subcommittees of, or appointed by, such public body. 7 Open Government Exceptions Staff meetings Staff appointed committees that advise staff (not necessarily the public body) The department head exception 8
Open Government What is a Meeting? The gathering, in person or through technological devises, of a quorum of members of a public body at which they discuss, propose or take legal action, including any deliberations by a quorum with respect to such action. New Law: One-way electronic communication by one member sent to a quorum that proposes legal action. 9 Open Government
What is Legal Action? A collective decision, commitment or promise made by a public body pursuant to the constitution, the public bodys charter, ordinances, bylaws and the laws of this state. 10 Open Government Notice: A.R.S. 38-431.02 (D)(E) Emergency Exception Requires actual emergency
Notice as is appropriate to the circumstances. Must post public notice and agenda within 24 hours. May include Saturdays, but not Sundays, if public has access to posted location. 11 Open Government Notice: A.R.S. 38-431.02 (E) May recess and reconvene properly posted meeting But prior to recessmust announce time and place of resumption, OR
Method by which such notice will be given. 12 Open Government Attending by Phone If there is a problem reaching a quorum, participation by telephone is OK, but: The public must be able to hear the person on the phone; The person on the phone must be able to hear everyone at the meeting; and Participation on the phone must be noted on the agenda.
13 Open Government Executive Session Agendas Must include a general description of the matters to be considered. Need not contain information that would: Defeat the purpose of the executive session. Compromise the legitimate privacy interests of a public officer, appointee or employee. Compromise the attorney-client privilege. 14 Open Government
At the Meeting Sign-in sheets: optional only. Persons addressing the body should identify themselves (including name and subject in minutes). After hours meetings: do not lock entrance doors accessibility required. Record motions and the maker. New Law: Must record how each member voted. 15 Open Government
Meeting Pitfalls Passing notes. Whispering to fellow Council members. Quorum talking to individuals before the meeting officially starts or after the meeting officially ends. 16 Open Government Publics Rights Public has the right to: Attend. Listen.
Tape record or videotape. Public has NO right to: Speak. Disrupt. 17 Open Government Calls to the Public Not required but if you have them, the only responses allowed are: Response to criticism.
Ask staff to review a matter. Ask that a matter be placed on a future agenda. Can limit time. May require speakers on same side with no new comments to select spokesperson. May set ground rules for civility, language and treat everyone the same. 18 Open Government Current Events Current events must be current.
Chief administrator, presiding officer or a member of a public body may present a brief summary of current events without listing in the agenda the specific matters to be summarized, provided that: Current events summary is listed on the agenda; and Public body does not propose, discuss, deliberate or take legal action. Other members of the public body should not get into a discussion about it. 19 Open Government
Executive Sessions A.R.S. 38-431.03 Limited exception to public meeting. Must vote in open meeting for executive session. Agenda must state specific provision of law authorizing the session and specify the item. Must include a general description of matters to be considered. (Not just statutory authorization, but dont defeat purpose.) 20 Open Government
Executive Session Purposes 1. Employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation. 2. Records exempt by law from public inspection. 3. Discussion or consultation for legal advice with the attorney of the public body. 4. Discussion or consultation with the attorneys to consider and instruct regarding contract negotiations, pending or contemplated litigation, or settlement discussions to avoid or resolve litigation. 21
Open Government Executive Session Purposes 5. Discussions or consultations with employee organizations for negotiating salaries, salary schedules, or compensation. 6. Discussion, consultation re: interstate, international, or tribal negotiations. 7. Discussion or consultations to consider and instruct on negotiations for purchase, sale, or lease of real property. 22 Open Government
Legal Advice in Executive Session Must be lawyers for the public body. Not lawyers for someone else. What is allowed: Advice regarding the legal ramifications of facts. Legal propriety, phrasing, drafting and validity of proposed legislation, including meanings, legal scope, and possible legal challenges. What is not allowed: Discussion regarding the merits for enacting the legislation. Debate over what action to take (i.e., pros and cons, policy
implications). 23 Open Government Meeting Held in Violation of OML: All legal action in connection with the violation is null and void. 24 Open Government Failure to Comply with AG
Possible filing of action in superior court for an order to enforce the demand. Failure to comply with court equals: Contempt of court. Injunctive order against conduct that is subject of investigation. 25 Open Government Open Meeting Law Dont Overreact Dont stop all communication with your colleagues
Reach out to those you disagree with most. 26 Open Government Hot Topics - Public Records Act Not all e-mails are public records You cannot avoid creating public records by using your home computer Websites unchartered territory 27 Open Government
II.Unbiased Government Public Service Ethics Laws No Self-Dealing No Conflicts of Interests No Extra Compensation No Inappropriate Gifts No Discrimination No Retaliation Against Whistleblowers 28 Conflicts of Interest
Conflicts of interest are okay But: Identify Disclose Disqualify 29 Unbiased Government Identify a Conflict of Interest Any public officer or employee who has, or whose relative has, a substantial interest in any decision of a public agency shall make known such interest in the official records of such
public agency and shall refrain from participating in any manner as an officer or employee in such decision. 30 Unbiased Government Who is Subject? All public officers and employees Includes family: spouse, child, grandchild, parent, grandparent, siblings and in-laws 31 Unbiased Government
Remote Interests Non-salaried officer of nonprofit corporation Landlord/tenant of a contracting party Attorney of a contracting party Member of a nonprofit corporate association
Owner of less than 3% of a corporation Reimbursement of expenses incurred when performing official duties 32 Unbiased Government Remote Interests Receiving municipal services on comparable terms Officer/employee of another political subdivision unless direct economic benefit A member of a class of persons of at least 10 members Relative is who is an employee of another entity with at least
25 employees in Arizona and who does not exercise control Ownership of publicly traded investments held in a fund managed by others. 33 Unbiased Government What Happens if there is a Conflict? If not remote, then substantial If receive direct or indirect pecuniary or proprietary interest, you must declare a conflict 34
Unbiased Government Then What? Refrain from participating in any manner including attempting to influence a decision Record conflict in official records of the City 35 Unbiased Government No Bribes or Extortion A public servant who knowingly asks for or receives any gratuity or reward (or promise thereof) for doing any official
act is guilty of a class 6 felony Public servants may not use or attempt to use their official positions to secure any valuable thing or benefit that would not ordinarily accrue to them if the thing or benefit is of such character as to manifest a substantial and improper influence 36 Unbiased Government Bribery Public servants who solicit, accept or agree to accept any benefit upon an agreement or understanding that it may influence their official conduct (including their vote, opinion,
judgment, exercise of discretion, or other action) commit bribery, which is a class 4 felony. 37 Unbiased Government Extortion A public servant commits theft by extortion a class 4 felony by knowingly obtaining or seeking to obtain property or services by means of a threat to take or withhold action as a public servant in the future. 38
Unbiased Government Ban on Extra Compensation No public officer or employee may receive or agree to receive directly or indirectly compensation other than as provided by law for any service rendered by him personally in any case, proceeding, application, or other matter which is pending before the public agency of which her is a public officer or employee. 39 Unbiased Government
Ban on Incompatible Employment Both during and for twelve months following a public officials service, Arizona law prohibits the official from representing another person for compensation before a public agency for which the official serves (or served) in connection with any matter in which the official was directly concerned and personally participated by a substantial and material exercise of administrative discretion. 40 Unbiased Government Entertainment
A compensated lobbyist may not offer you entertainment or a gift To influence the passage or defeat of legislation Check your codes 41 Unbiased Government Whistleblower Protection Arizona law prohibits public employees and officials from taking an adverse personnel action in retaliation against a public employee who disclosed to a public body allegedly wrongful conduct that the disclosing employee reasonably
believed evidenced a violation of law, mismanagement, a gross waste of monies, or an abuse of authority. 42 Unbiased Government III. Responsible Government Public Monies Neither the State, nor . . . subdivision of the State shall ever . . . make any donation or grant, by subsidy or otherwise, to any individual, association, or corporation . . . . - Arizona Constitution, Article 9, 7.
43 City North Case Sales tax for parking spaces Arizona Court of Appeals said unconstitutional under the Gift Clause Arizona Supreme Court said the deal was OK But: new rules going forward 44 Responsible Government City North Rules to Follow
Courts will defer to your decision Dont unquestionably abuse your discretion Cant count indirect jobs and tax benefits Greater impact on larger cities
Use a contract Use procurement rules Public improvements are OK The Constitution can be your friend 45 Responsible Government Public Procurement
Quotes Design Bid Build [email protected] Job Order Contracting Design - Build Cooperative Purchase 46 Responsible Government
Violations of State Law and Loss of State Shared Revenue Any legislator need only allege that a local government violated state law AG must investigate within 30 days If determines state law violated, the local government must cure in 30 days If not cured in 30 days, Treasurer will withhold state shared revenue until violation cured. If determines that a violation may have occurred, AG submits to Supreme Court but the local government must post a bond in the amount of the state shared revenue it received for the prior six months.
47 Responsible Government Cities and Towns that Have Been the Target Snowflake Medical Marijuana Cultivation Facility Bisbee Plastic bag ban Tucson Destruction of forfeited firearms
Phoenix Violations of Immigration law information sharing Somerton CUP for religious activity 48 Responsible Government Cities and Towns the Have Been the Target
Phoenix Release of Critical Incident Information Tempe GPLET Sedona Licensing of Vacation Rentals Sedona Support of Chamber of Commerce Patagonia Truck Restrictions 49 Responsible Government IV. Efficient Government
Role of Mayor and Council Mayor is the chief executive officer. A.R.S. 9-236 A simple, perfect democracy had never yet existed. The whole people were incapable of deciding much of anything, even on the small scale of a village. He had had enough experience with town meetings at home to know that in order for anything to be done certain powers and responsibilities had to be delegated to a moderator, a town clerk, a constable, and, at times, to special committees. John Adams, by David McCullough 50
Role of Mayor and Council The duty of the chief magistrate is to unite in himself the confidence of the whole people to produce a union of the powers of the whole, and point them in a single direction, as if all constituted but one body and one mind. Thomas Jefferson 51 Efficient Government Council-Manager Form of Governance
Mayor and Council provide guidance and direction Manager and staff implement Based on the private sector model of a CEO and Board of Directors City Manager appointed by the Mayor and Council 52 Efficient Government Council-Manager Form of Governance City Manager serves at the pleasure of the Council and can be terminated for any reason and without cause
City Manager may have employment contract with severance and other stipulations Oversees the entire municipal operations, all departments, hiring of staff, the budget and implementation of the Councils goals Council member may make inquiries of staff, but what does inquiry mean 53 Efficient Government Interference in Administrative Service
Except as otherwise provided in this Charter, neither the Mayor nor any Council member shall interfere with the execution by the City Manager of the powers and duties, or order, directly or indirectly, the appointment by the City Manager of any person to an office or employment or the removal there from. Except for purposes of inquiry, the Mayor and Council members shall deal with the administrative service under the City Manager solely through the City Manager, and neither the Mayor nor Council member shall give orders to any subordinate of the City Manager, either publicly or privately. 54 Efficient Government
Why Preserve Council-Manager Form of Government? Legislative immunity Accountability Violate city/town code Confuse staff
Deniability 55 Efficient Government Land Use Claims Competing Objectives Police Power Needs CITY/TOWN COUNCIL
Private Property Rights 56 Efficient Government General Plan Complexities The process for adopting or amending the general plan of a municipality or a county is more comprehensive than the zoning amendment process in terms of involvement of the community and other municipal, county and state agencies. Thus, there are
more opportunities for the land use lawyer to create a favorable record on which to base future litigation. CLE International 57 Efficient Government Land Use Claims
Violation of Constitutional Rights Breach of Contract Tortious Interference with Contract Misrepresentation Extortion Equitable Estoppel Breach of Fiduciary Duty 58 Efficient Government
Constitutional Claims Federal and State Constitutions: No person shall be deprived of life, liberty or property without due process of law Due process Procedural Substantive Equal protection must treat similar property owners similarly 59 Efficient Government
Due Process and Equal Protection Entitled to a hearing Health, safety, morals and welfare Zoning ordinance must bear a reasonable relationship to these goals Rational basis fairly debatable test Shocks the conscience Must be rational basis for treating classes differently 60 Efficient Government Damages and 42 USC Section 1983
Create a right Create damages If constitutional right denied under color of state law: $1.00 Damages $1.2 Million Attorney Fees 61 Efficient Government Development Agreements
Contractually Vest Rights Creates Value Get Consideration 62 Efficient Government Dispute Resolution Arbitrate factual disputes Mediate all disputes? Give parties day in court Litigation: zero sum game Mediation: problem resolution
Avoid recovery of attorneys fees Leaves the parties (not the lawyers) in control 63 Efficient Government Contractually Required Mediation If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try to settle the dispute through mediation before resorting to arbitration, litigation or some other dispute resolution procedure. In the event that the parties cannot agree upon the selection of a mediator
within 7 days, either party may request the presiding judge of the Superior Court to assign a mediator from a list of mediators maintained by [the Arizona Municipal Risk Retention Pool]. 64 Efficient Government IGA Risk 65 Efficient Government
Mutual Aid Agreements Regional issues are common and impact multiple jurisdictions. Fire suppression Joint law enforcement events Emergency responses Drug task force Public transit Regional parks Dispatch IGAs 66 Efficient Government
Imbalance of Negotiating Leverage ADOT pass-through of federal funds ADOT gives cities and towns a take it or leave it proposition: To receive federal funds, city must indemnify ADOT for ADOTs negligence State Forestry Risk of wildland fire exposure Indemnity Risk 67 Efficient Government IGAs Crucial
IGAs govern these relationships Indemnities allocate risks The Yarnell IGA might have been drafted differently, exposing Prescott to significant liability Dont stumble into liability Agree on risk-sharing language in contract before liability causing events ADOT State forestry 68 Efficient Government
Law Enforcement Assistance Project Critical Incident Response Training Internal Affairs procedures Policy review 69
Efficient Government Lessons Learned Dont shock the conscience Avoid over my dead body Get data to support your views Get on the same planet
Marriage counseling not divorce court 70 Lessons Learned Open meeting/public records law: Government in the open Conflict of interest: Remove/limit improper personal influence Public money be accountable Council-manager form of government: Allow elected officials to provide vision; require manager to implement
Try to avoid extremes Dont be afraid to mediate Check your IGAs 71 City/Town Councils Closest to the governed Power to take property Immediately accountable Open meeting law Recall Non-partisan deliberation Inaction and failure not an option
72 You Stand on Broad Shoulders All . . . will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression. Let us, then, fellow-citizens, unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things . . . . Thomas Jefferson
Inaugural Address, 1801 73 You Stand on Broad Shoulders The whole art of government consists in the art of being honest. Only aim to do your duty, and mankind will give you credit where you fail. No longer persevere in sacrificing the rights of one part of the empire to the inordinate desires of another; but deal out to all equal and impartial right. . . . This is the important post in which fortune has placed you, holding the balance of a great, if a well poised empire. Thomas Jefferson A Summary of the Rights of British America, 1774
74 You Stand on Broad Shoulders We hold these truths to be self-evident: that all men are created equal; that they are endowed by their creator with inalienable rights; that among these are life, liberty and the pursuit of happiness: to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. Thomas Jefferson Declaration of Independence, 1776
75 Senator McCain The Restless Wave Before I leave, Id like to see our politics begin to return to the purposes and practices that distinguish our history from the history of other nations. Id like to see us recover our sense that we are more alike than different. Were citizens of a republic made of shared ideals forged in a new world to replace the tribal enmities that tormented the old one. Even in times of political turmoil such as these, we share that awesome heritage and the responsibility to embrace it. Senator John McCain May 3, 2018
76 Senator McCain The Restless Wave Whether we think each other right or wrong in our views on the issues of the day, we owe each other our respect, as so long as our character merits respect, and as long as we share for all our differences for all the rancorous debates that enliven and sometimes demean our politics, a mutual devotion to the ideals our nation was conceived to uphold that all are created equal and liberty and equal justice are the natural rights of all. I want to urge Americans for as long as I can to remember that this shared devotion to human rights is our truest heritage and our most important loyalty.
Senator John McCain May 3, 2018 77 Questions? Bill Sims Sims Murray, Ltd. 3101 North Central Ave., Suite 870 Phoenix, Arizona 85012 602-772-5501 [email protected]
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