Serial Meetings and Oregon Government Ethics Commission Oversight

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Carrie Connelly

Did you think public meeting hazards couldn’t get stickier? Think again! The 2023 Legislature adopted House Bill (HB) 2805, which amends Oregon’s public meetings law in four ways.

In summary, HB 2805:

I. Adds new defined terms to ORS 192.610. For years, the term “meeting” has been defined as: “. . . the convening of a governing body of a public body for which a quorum is required in order to make a decision or deliberate toward a decision on any matter.” ORS 192.610(7)(a) (emphasis supplied). HB 2805 defines the two italicized terms used in this definition.

The term “convening” is now defined in ORS 192.610(1) as:
   “(a) Gathering in a physical location;
  (b) Using electronic, video, or telephonic technology to be able to communicate contemporaneously among participants;
  (c) Using serial electronic written communication among participants; or
  (d) Using an intermediary to communicate among participants.”

Subsections (a) and (b) describe classic public meetings—gathering in noticed public meetings, in person or virtually. Subsection (c) captures the term “serial meetings,” as previously developed in caselaw. Subsection (d) adds a “go-between” meeting: A person talking to and passing information between at least a quorum of council or board members. If such conversations involve a quorum of the public body who make or deliberate towards a decision, a public meeting is held – even if non-members of the governing body communicate directly with each other.

The term “deliberation” is now defined in ORS 192.610(3) as a:
“. . . discussion or communication that is part of a decision-making process.”

* Note that the definition of “meeting” uses the term “deliberate” not the newly defined term, “deliberation.”

II. Clarifies that public meetings law does not apply to communications between members of a governing body that: are purely factual or educational; not related to any matter that might reasonably come before the governing body; or nonsubstantive in nature.

Codifying preexisting case law, Oregon public meetings law now expressly excludes communications between or among members of a governing body that are:

  A. “Purely factual or educational in nature and that convey no deliberation or decision on any matter that might reasonably come before the governing body;
  B. Not related to any matter that, at any time, could be reasonably foreseen to come before the governing body for deliberation and decision; or
  C. Nonsubstantive in nature, such as communication relating to scheduling, leaves of absence and other similar matters.”

III. Requires training on Oregon public meetings law for members of governing bodies of public bodies whose total expenditures exceed $1 million for a fiscal year.

As of January 1, 2024, HB 2805 requires members of governing bodies whose public bodies spend more than $1 million per fiscal year to attend an in-person or virtual public meetings training provided, or approved, by the Oregon Government Ethics Commission (OGEC). The training will be required once per term of office.

IV. Expanded Oregon Public Meeting Law Oversight by OGEC.

HB 2805 expands OGEC’s public meeting law oversight from only executive session violations to all public meeting violations. Grievances must first be filed with the public body within 30 days of the alleged public meeting violation. Upon receipt, the public body must:

  A. Acknowledge and respond to the grievance in writing within 21 days and—
   1. Deny the allegations, provide the correct facts, and explain why no violation occurred;
   2. Admit that the allegations correct, but deny that those facts violate the public meetings law; or
   3. Admit that the allegations are correct and admit a violation of the public meetings law. Such a response must then explain the steps the public body will take to cure the
   violation, including but not limited to—
    a. Rescinding the decision made in violation of the Oregon public meetings law; or
    b. Holding a properly noticed and conducted public meeting within 45 days of the original decision and, in the meeting, state that
     i. The original decision was made in violation of the Oregon public meetings law;
     ii. Good cause exists for the public body to not rescind the decision; and
     iii. The public body’s practices will be modified to avoid future violations.
  B. When the public body sends its response, the public body must also send a copy of the written grievance and its response to OGEC.

If OGEC finds that a member of a governing body failed to attend a required training or investigates a public meeting law violation allegation and finds that a violation occurred, the responsible member(s) of the governing body may be assessed a civil penalty of up to $1,000. Such civil penalties are now expressly personal to violator(s); a governing body is expressly prohibited from paying or indemnifying the fine.

Takeaways: Do not risk OGEC civil penalties. Be sure to: (1) attend required public meeting trainings; and (2) call your attorney with any questions.

Ordinances, Resolutions, Motions, and Orders

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Truman Stone

In law school, one of my professors encouraged students to review familiar rules (Rules of Civil Procedures or Trial Court Rules) no less than annually to avoid complacency in our knowledge and understanding of them. This is a practice that has served me well for thirty-one (31) years and provided me with a solid foundation of the fundamentals. Several times recently this fundamental knowledge has been put to good use as I have been asked to explain the different uses of motions, resolutions, orders, and ordinances. So, with my professor’s advice in mind, let us refresh our collective memories on some of the basics.

Unlike the federal and state systems, local governments typically do not have separation of powers. For instance, a city council may in a single council meeting act like a legislature, the executive branch, and quasi-judicially. The trick is knowing which hat the governing body has on at any one time. The type of action before you will give you a clue:

Legislature:

When adopting generally applicable laws that would apply in future circumstances, the sovereign body is acting as like a legislature. In that case, an ordinance is the proper vehicle. You can compare it to a bill before the Oregon legislature. Those ordinances or bills are often then complied together into a code to make it easier to track and research the enactment.

Executive:

The hiring of employees, awarding a construction bid, approving a contract, or simply providing instruction to staff, are common examples of a sovereign body acting in an executive capacity to run the government. The more formal of these decisions are typically made by resolution, and the less formal by motion, but all are types of the same action. Likely you will find that you pass more resolutions than ordinances and orders combined.

Judicial/Quasi-Judicial:

A judicial or quasi-judicial action is typically seen in areas like land use applications or code enforcement appeals. In these cases, the body sits in judgment of a unique factual issue and applies pre-existing standards (think ordinances or policies) to those facts to reach a result. That result is typically in the form of an order which explains how the issue was decided and either allows or disallows the action.

This is a general explanation, but as we all know, things in real life are not always so clear. For instance, the Oregon Local Budget Manual states that a budget may be passed by ordinance or resolution and gives this explanation:

Governing body resolution or ordinance:

A resolution is a formal expression of the opinion or will of an official body. An ordinance has the character of an enactment of law by an established authority. For purposes of the Local Budget Law, either a resolution or ordinance by the governing body at this stage of the budget process provides the legal authority to establish or dissolve funds, make appropriations for expenditures, adopt the budget, impose and categorize taxes, and all other legal actions pertaining to adopting the budget and making tax levies.

It is important to look to your city charter or enabling legislation for specific requirements that may apply to your entity. We are always here to help, so if you are unsure, give us a call.

Tis the Season for Bargaining

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Diana Moffat

What does the Holiday Season mean to you? Gathering with family and friends? Lots of good food? Lots of shopping? Getting ready to ring in a New Year? Gearing up for bargaining season? Yes! In the world of public sector government, the approach of the Holiday Season signals time to prepare for union collective bargaining! How exciting!!
Do you have a Collective Bargaining Agreement (CBA) that expires on June 30, 2024? If so, NOW is the time to act. The Collective Bargaining process can, unfortunately, take many, many months to complete. At best, you are looking at a two-to-five-month process of getting things settled. At worst, much longer! There is a distinct advantage to completing the process, if at all possible, prior to the expiration of your current CBA.

Advantages of early resolution

  • If you can resolve your negotiations prior to expiration, you are not faced with any type of retroactive pay issues. This can go a long way with employee morale for both your regular and payroll employees.
  • Often times, unless bargained otherwise, the retroactive increases reach back to overtime calculations. This can be a small nightmare to your payroll department.
  • If you have anything less than fully funded insurance premiums, you are not faced with the danger-zone of figuring out what your “status quo” obligations are under the Public Employee Collective Bargaining Act.
  • You can use “early resolution” to your advantage in getting a settlement.
  • If faced with a situation of non-settlement, you can get to mediation or arbitration/impasse shortly after expiration. By July and August, the waiting time for these processes greatly increases. There are only three mediators for the entire State of Oregon.

    • Timelines

  • Does your CBA require notice to “open” bargaining? If so, you need to meet that deadline with a notice to the Union that you want to bargain for a successor CBA.
  • The required 150-day bargaining period, under the Public Employee Collective Bargaining Act (PECBA), does not even begin until the initial proposals have been exchanged. Because of that, early scheduling can be a real advantage. If you are able to develop and present your proposals in January or February, you are, at worst, looking at just around the time of contract expiration for the time that you can proceed to mediation if needed.
  • Development of your proposals should begin early on. Precise contract language is of utmost importance. The development of your proposals should be done in a very thought-out fashion, with input from supervisors to Council/Board members. This process takes time.

    • Developing your plan

  • Now is the time to review your current CBA to identify what is working and what needs to be changed. Are there any needed legal updates? Has your labor counsel reviewed your CBA for ambiguous language? Are there any MOUs that need to be incorporated into the main CBA?
  • Now is the time to decide if you want to do a comparable analysis, in conformity with the PECBA, to assess your financial place within the market.
  • Now is the time to look at your budget projections for your limitations or wiggle room.
  • Now is the time to decide who will be your representative at the bargaining table and who will be on your bargaining team.
  • Does your governing body need to be advised on the process, the rules, and laws that regulate public employee collective bargaining? Now is the time to schedule that training.

    • Current “hot” issues to consider

  • Paid Leave Oregon (PLO) is the 10,000-pound elephant! This statutory change became effective on January 1st. PLO proposals have already appeared in dozens of union bargaining proposals during 2023. You can be sure that the unions will continue to pursue them. It is important for you to understand what you do and do not need to bargain with the union.
  • Insurance language is still a concern for some employers. Have you reviewed the insurance language in your CBA to see how your contract stands up to potential future litigation if there are mid-term plan changes?

    •     – Do you have the dreaded “equal to or better” language?
        – Do you have something along the lines of “substantially similar?”
        – Do you know what that obligates you to do?

  • Have you reviewed your CPI index language? Many public sector employers have ambiguous CPI index language. Bargaining is the ideal time to clarify the index with specificity.

    • When you find yourself planning for the Holiday Season, let that remind you to begin preparing for the upcoming union collective bargaining season as well!

    Public Records Requests for Notes, Drafts, and Preliminary Documents

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    Lori Cooper

    How does your public entity respond if it receives a public records request for “all” documents for a particular matter? Does everything in a file need to be released, even if it is not a complete or final version?

    Many public bodies may think that only a final version of a document needs to be disclosed, and that earlier versions are exempt from disclosure. However, the fact that a document is in draft form does not, by itself, warrant a basis to withhold it from disclosure.

    The definition of a “public record” in ORS 192.005(5) is very broad, and includes “any information” that is “prepared, owned, used, or retained” by a public entity, “relates” to an activity of the public entity, and is necessary to satisfy the legal requirements or needs of the public entity. In most cases, notes and draft documents will meet this definition and qualify as public records.

    The Oregon Attorney General’s Public Records and Meetings Manual states: “Public bodies sometimes mistakenly take the view that preliminary reports or recommendations may be withheld simply because they have not been reviewed or finalized. However, drafts or incomplete records are not inherently exempt from disclosure.”

    The “internal advisory communications” exemption found in ORS 192.355(1) can sometimes be used to justify withholding notes and draft documents from disclosure. This exemption covers communications within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to any final agency determination of policy or action.

    The Attorney General has cautioned that this exemption does not apply unless the public body shows that the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.

    The internal advisory communications exemption applies only if all five of the following criteria are met:

    The information is a frank communication within a public body or between public bodies;

    • It is of an advisory nature (e.g., recommendations or opinions);
    • It is communicated preliminary to any final agency action;
    • It covers other than purely factual materials; and
    • Public interest in encouraging frank communication clearly outweighs the public interest in disclosure.

    It is possible that even if parts of a record meet these criteria, some factual material contained in the record might still be released to the requester. Similarly, a report prepared for the purpose of providing an opinion or recommendation may contain purely factual portions that will be required to be disclosed regardless of the public interest in disclosure.

    Give the Local Government Law Group a call if you are faced with the dilemma of whether to disclose notes or draft documents in response to a public records request. We have helped many of our clients navigate this public records maze!