Is Payson violating the open meeting law and A.R.S. section 38-431.01(A)? Are our First Amendment rights being respected? Are there ways the Town can provide a meeting space that will allow public attendance of the council meetings? When asked about when the meetings will open up to the public, Mayor Morrissey replied, “We’re going to be doing that in June.” It’s the middle of June.
In light of the ongoing Coronavirus pandemic, is it legal for public bodies to prohibit in-person public attendance, limiting the public to viewing/listening to meetings remotely through technological means?
A.R.S. section 38-431.01(A) says, “ All meetings of any public body shall be public meetings and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings.” The open meeting law handbook does not define “attend.” The Arizona statutes do not say, and there are no Arizona court cases that specifically address this issue.
A.R.S. section 38-431 defines a meeting as “the gathering, in person or through technological devices,
of a quorum of the members of a public body. . . .” All of these words seem to imply being in-person simultaneously; however, the open meeting law specifically allows for meeting via remote means. If the public body can lawfully meet via remote means, why could the open meeting law not also be interpreted to be satisfied by offering attendance (exclusively) by remote means? As a practical matter, if all members of a public body were to meet remotely, how could members of the public attend? Admittedly, it is not entirely clear that this practice is indeed permissible. A.R.S. section 38-431.09 says “any person or entity charged with the interpretations of this article shall construe this article in favor of open and public meetings.”
The town has had plenty of time to figure something out to allow the citizens of Payson to have a voice. A bigger meeting venue, public Zoom or Bluejeans meetings (Bluejeans can hold online meetings of 150 members). Our rights to this, and so many other of our rights are not a concern to our leaders.
On 3/13, the Attorney General’s office issued an opinion discussing this issue in which it seems to conclude that a public body can limit attendance of public meetings to remote methods, provided the public is notified.
Bottom line: Public bodies can make a reasonable argument that it is lawful to temporarily suspend in-person, public attendance at its meetings, but not without allowing the public to participate by electronic means and comment on all agenda items.
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