Coverage Determinations Can Help You Take Advantage of BOLI Exemptions

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Carrie Connelly

From our February 2017 e-newsletter

The phrase is so often repeated it’s nearly cliché – “Construction? Call BOLI.” However, there are a number of exemptions from prevailing wage rate laws. Such exemptions include, but are not limited to, construction projects which cost no more than $50,000, projects that are paid for with no funds of a public agency, and private construction which uses no more than $750,000 of public funds. The ins and outs of determining which projects are and are not exempt from prevailing wage rates can be complex. How can you be sure?

Coverage Determination Requests

Enter coverage determinations. These are letters parties can seek from BOLI regarding whether (or not) a proposed project is a public works subject to prevailing wage rate laws. Obtaining determinations before commencing a project can prevent unexpected costs and unpleasant surprises once a project is underway. And all you have to do is ask. Such a written request should describe all relevant details of the project and provide background documents, records, and other information necessary to enable BOLI to issue its determination. In particular, explain past, present and future property owners and any dates of anticipated ownership transfer. Of course, funding information is critical. Such information must be updated while the determination is pending.

Determinations must issue within 60 days of the request submittal (or BOLI’s receipt of additional information it requests). Upon issuance, parties may seek reconsideration and a hearing in the hopes of a different outcome.

While determinations can be critical to public/private partnerships, they can also be helpful for determining whether a project has been impermissibly divided, whether various phases can be considered independent of the others, or whether a project must be viewed collectively. Such factors are critical in determining the applicability of prevailing wage rate laws.

BOLI Prohibits Dividing Projects to Avoid Prevailing Wage Rates

As noted above, contracting agencies may not divide a project to avoid compliance with prevailing wage rate law. ORS 279C.827. BOLI treats separate contracts for the same project as a single project for prevailing wage rate purposes and may issue an order compelling the violating agency to treat the contracts as a single project.

BOLI looks at a number of factors to decide if separate contracts actually constitute a single project, such as:

  • The physical separation of project structures;
  • Whether a single public works project includes several types of improvements or structures;
  • The anticipated outcome of the particular improvements or structures the agency plans to fund;
  • Whether the structures or improvements are similar to one another and combine to form a single, logical entity having an overall purpose or function;
  • Whether the work on the project is performed in one time period or in several phases as components of a larger entity;
  • Whether a contractor or subcontractor and their employees are the same or substantially the same throughout the particular project;
  • The manner in which the public agency and the contractors administer and implement the project; and
  • Other relevant matters as may arise in any particular case.

If a public works project is of the type described in ORS 279C.800(6)(a)(B) or (C) (i.e., a public/private project), the Commissioner of the Bureau of Labor and Industries may divide the project if appropriate, considering the above factors, so that the parts of the project that do not include public funds or that will not be occupied or used by the public agency will not be subject to the prevailing wage rate law.

Additionally, if part of a project is publicly owned and parts are privately owned, the Commissioner may divide the project (if appropriate, considering the above factors), so that the parts of the project that are privately owned are not subject to the prevailing wage rate law. Interested parties must submit a coverage determination request to BOLI for assistance with such a division of a project. ORS 279C.827; OAR 839-025-0310; ORS 279C.815.

Conclusion

In sum, prevailing wage rate statutes and rules are complicated. A coverage determination can help you sort out applicable requirements. Also, BOLI has several publications to break the laws down into terms that are more easily understood. These can be found at http://www.oregon.gov/boli/WHD/PWR/docs/2016_PWR_law_book.pdf or obtained via email at pwremail@boli.state.or.us.

Bottom line, before concluding that a particular project is beyond BOLI’s scope-confirm this by contacting your attorney, and/or obtaining a coverage determination.

A Handy Article for Public Meetings Advice

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Mark Wolf

From our February 2017 e-newsletter

The Oregon Supreme Court recently released its opinion in the public meetings law case, Handy v. Lane County, 360 Or 605 (2016), which reversed the Court of Appeals, in part. However, the Supreme Court did not address “serial meetings” in its decision. As such, the practical effect of the Supreme Court’s decision is that members of governing bodies should still avoid serial meetings as if the Court of Appeals’ decision is still good law.

To back up, Oregon’s public meetings law provides that a quorum of a public entity’s governing body “may not meet in private for the purpose of deciding on or deliberating toward a decision. . . .” ORS 192.630(2).

In 2012, a quorum of Lane County Commissioners communicated via email and telephone regarding a public records request, but only two were talking directly at any one time. Commissioner Rob Handy filed suit alleging a violation of Oregon’s public meetings laws. The trial court dismissed the suit but the case was appealed to the Court of Appeals. There, the central issue was whether serial meetings (a series of one-on-one communications among a quorum of a governing body either directly or through an intermediary) can violate Oregon’s prohibition on private meetings. The Court of Appeals held that private serial communications among members who constitute a quorum of a governing body do violate Oregon’s public meetings laws when conducted for the purpose of deliberation or decision-making.

The case was appealed to the Oregon Supreme Court, which released its decision in November of 2016. In its opinion, the Supreme Court reversed the Court of Appeals, but on other grounds. The Court never decided whether serial meetings can violate Oregon’s public meetings laws.

Because the Supreme Court did not address the issue of serial meetings, I caution you not to disregard the Court of Appeals decision. The Supreme Court did reverse the Court of Appeals. Thus, technically, the Court of Appeals’ holding that serial meetings can violate Oregon public meetings laws is no longer mandatory authority for lower courts to follow. However, if the same or similar facts are presented to the Court of Appeals, it’s likely to issue the same decision. Therefore, local governments should continue to operate as if serial meetings can violate Oregon’s public meetings laws (which is essentially how we’ve advised our clients all along).

To avoid liability we recommend that governing bodies:

  • Avoid replying to emails when government business information is shared via email. One-way sharing of information regarding agenda topics, meeting availability, and other administrative items is permitted, but back and forth conversations between governing body members through email should be avoided.
  • Avoid conversations (in person or via email) between council/board members where the views of fellow members are shared. One-on-one conversations are still permitted as long as the views or thoughts of other members are not shared during those conversations. The time, place, or manner of conversations does not matter so much as the number of members involved (a quorum) and the items discussed (government business).
  • Avoid sharing opinions or views on items that the governing body would need to vote on via social internet sites, email or its social gatherings where other members of your governing body may participate. Sharing thoughts, facts, information, or preferences on matters on which the governing body is working on should be aired publicly, but during the course of a properly noticed public meeting.

Role of a Union Representative at an Investigatory Interview

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Diana Moffat

From our May 2017 e-newsletter

This question often arises:

“We have scheduled an investigatory interview with an employee based on alleged violations of policy. The employee has now told us that his labor representative and/or labor lawyer is going to be in attendance. What do we do? What is the allowable role of the representative or the lawyer at this interview?”

The Oregon Employment Representation Board (ERB) answered that question for you. If you follow the four parameters, there is no reason to dread the presence of a union representative at an investigatory interview.

Washington County Police Officers Association v. Washington County, 12 PECBR 693 (1991)

After weighing the rights of employers to investigate employee conduct and to maintain control of the workplace, the representation rights of employees, and the policy reasons for having pre-grievance union representation, this Board holds that the role of a union representative during interviews comprises the following:

1. The representative may inquire, at the outset of the interview, regarding its purpose, including inquiring about the general subject matter of the questioning to follow.

2. During the questioning of the employee by the employer, the representative may participate only to the extent of seeking clarification of questions.

3. After the employer has completed the questioning of the employee, the representative may ask the employee questions designed to clarify previous answers or to elicit further relevant information.

4. Before the end of the meeting, the representative may suggest to the employer other witnesses to interview and may describe relevant practices, prior situations, or mitigating factors that could have some bearing on the employer’s deliberations concerning discipline.

We believe the above role of the representative is sufficient to provide an employee with the pre-grievance representation rights derived from ORS 243.662 and to achieve the basic purpose of such rights as described by the court in Weingarten, as follows:

“A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. Certainly, his presence need not transform the interview into an adversary contest.”

The union representative does not get to speak for the employee[1]. I find it handy to have a fact sheet that describes the union representative’s role during the interviews to hand out at the start of the interview. I would be happy to provide you with a copy.

[1]Please note that it is different at the pre-disciplinary meeting (aka Loudermill hearing). At that point, the employee’s participation is voluntary, so the union representative can do all of the talking.

Executive Session Update

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Ross Williamson

From our May 2017 e-newsletter

Last year, the Oregon Government Ethics Commission (OGEC) made changes to its administrative rules that interpret the executive session statutes. Although these rules are now close to one year old, it is time for a little reminder to make sure these rule changes stick in your memory for future use.

The authority to enter into an executive session is limited and the permissible subjects for executive sessions are set out in ORS 192.660(2). For today, we are talking about two particular subjects for executive session related to a governing body overseeing its officers and employees. ORS 192.660(2)(b) allows a governing body to enter into executive session to discuss the discipline or termination of an individual. Similarly, ORS 192.660(2)(i) allows a governing body to enter into an executive session to discuss the performance of a particular individual.

Each of these two executive session authorities come with an important qualification. Before a governing body can go into executive session under either of these provisions, the governing body must first provide notice to the impacted person and offer this person the option of having the governing body’s discussion take place in open session rather than in executive session.

The administrative rules adopted by the OGEC last year clarify how a governing body provides this prior notice to the impacted individual. Changes were made to OAR 199-040-0030 to provide this additional guidance. The new rule provides, in relevant part:

(1) In order to afford to the chief executive officer of any public body, a public officer, employee, staff member or individual agent the opportunity to request an open hearing under ORS 192.660(2)(b) or (i), the public official must receive written notice of the meeting no less than one business day or 24 hours, whichever is greater, in advance of the meeting.

(2) At a minimum, the written notice shall include:

(a) Identification of the governing body before which the matter will be considered;
(b) The time, date and location of the
meeting;
(c) The purpose for which the governing body proposes to convene the executive session, including the citation to the applicable section of ORS 192.660 and the fact that the governing body will be considering the dismissal or disciplining of, hearing complaints or charges against, or reviewing and evaluating the performance of the public official receiving the notice;
(d) Information on how the public official may make a request for an open hearing.

As this administrative rule makes clear, the governing body is required to provide written notice to the impacted individual. In addition, the notice must be provided at least one business day before the meeting, and the written notice must contain certain information as set out in the rule.

The OGEC is placing more formalities on going into executive session than we have been accustomed to in the past. With these new formalities, it becomes easier to slip up if you do not follow the administrative rule to the letter. Please keep these requirements in mind as you contemplate executive sessions in the future.