Executive Sessions: Tricks and Traps

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Executive Sessions: Tricks and Traps

by Carrie Connelly

 Oregon Public Meetings Laws and Executive Sessions

Oregon’s public meetings laws were enacted to ensure that the “decisions of governing bodies [are] arrived at openly.”  ORS 192.620.  As a result, your governing body’s authority to close portions of its meeting to members of the public (known as “executive sessions”) is limited.  As such, ORS 192.660 lists the only allowed executive sessions, each of which should be read very narrowly.  Even if your subject matter does fall within a permitted executive session, be wary – prerequisites may apply.  As not all limits and requirements are set out in ORS 192.660, this area of the law is easily misunderstood and frequently misapplied.

  1. How to Open and Close an Executive Session.

A governing body may hold an executive session only after the presiding officer has identified the statutory authorization for holding the executive session.  Making this required announcement for a stand-alone executive session or one held before the regular meeting can be tricky.  To meet all requirements, list planned executive sessions on the meeting agenda, along with other meeting topics.  The agenda should identify the specific statutory cite.  For example, if your entity plans to hold an executive session to discuss candidates for an open executive officer position, the agenda would list an executive session pursuant to ORS 192.660(2)(a), to consider the employment of a public officer, employee, staff member or individual agent.  The agenda need not provide further details, but should be published following your entity’s general practice for noticing all public meetings.

While legal, we recommend against adding an executive session after an agenda is issued, except in rare situations.  Some governing bodies always place an executive session item on the agenda as a place holder.  We recommend against this practice.  Only place executive sessions on your agendas for planned discussions.

During the meeting, before entering into executive session, announce the statutory basis for the executive session.  Chairs benefit from following a script when making such announcements.  The Oregon Attorney General’s Office has a sample script available on its website;

https://www.oregon.gov/oda/programs/NaturalResources/Documents/SWCDSessions/ExecutiveSessionScript.pdf.

We recommend that the Board Chair tailor this script for each executive session, print it out, and have it handy for all executive sessions.

An “executive session ends when the meeting ceases to be closed to the public.” If a decision is required as a result of the executive session discussion, or the public meeting will otherwise continue after the executive session, “the governing body must use reasonable means to give actual notice to interested persons that the meeting is again a public meeting.” OAR 199-040-0015(3).

This requirement is not met by announcing at the end of the executive session that the meeting is now open, then proceeding with a vote.  Legal options include announcing the specific time the public may return prior to the executive session.  Alternatively, it may be enough to open the meeting door and invite in waiting members of the public.

  1. Employment of Public Officers, Employees, and Agents.

ORS 192.660(2)(a) allows a governing body to meet in executive session to consider the hiring of an employee (usually a chief executive officer).  What this statute doesn’t say is that ORS 192.660(7)(d) sets prerequisites that must be satisfied before such an executive session may be held.  Before considering a hiring decision in executive session, your entity must: (1) advertise the vacancy; (2) adopt regular hiring practices; (3) provide the public an opportunity to comment on the potential hiring; and, (4) for chief executive officers, adopt hiring standards, criteria, and policy directives in open meetings with the opportunity for public comment.  In sum, an executive session under ORS 192.660(2)(a) may only be held if the local government first complies with ORS 192.660(7)(d).

To satisfy these requirements, your entity must first hold an open meeting prior to its executive session.  At this earlier public meeting, the Board can authorize staff to publish the vacancy, adopt a hiring process for the position (if your personnel policies do not already provide a process), and open a public hearing to allow the public to submit comments on the position and hiring process.  With these prerequisites addressed, the Board can then go into executive session to consider candidates and manage its hiring process.

Keep in mind, a governing body cannot discuss a prospective employee’s salary in executive session; that discussion and any related decision must occur in open session.  Along these lines, no final decision on the position may occur during executive session.  A final decision includes selecting a finalist but does not include identifying top candidates, or even designating a finalist with whom an entity representative will negotiate a contract (the final contract would then be brought back for the full governing body to approve in open session).

Last, note that this provision does not allow a Board to meet in executive session to fill a vacancy.  The executive session allowance applies to the hiring of employees, not the appointment of individuals to elected positions.

  1. Legal Counsel

ORS 192.660(2)(h) allows a governing body to hold an executive session to discuss, with its legal counsel, its “legal rights and duties . . . with regard to current litigation or litigation likely to be filed.”  Governing bodies are routinely tempted to stretch this exception to include discussions on any “legal matter.”  Prior to scheduling such an executive session, confirm that: (1) the discussion is directly with legal counsel, who will be present; (2) the discussion concerns your entity’s specific legal rights and duties; and (3) those rights and duties arise in the context of actual litigation in which your entity is either named or which is about to be filed.  ORS 192.660(2)(h) does not justify general discussion of your entity’s legal rights, risks, or liabilities, with or without your attorney’s presence.

Conclusion

Executive sessions can be useful tools to allow governing bodies to discuss confidential matters not yet appropriate for general public knowledge.  However, as illustrated above, executive sessions are authorized for only a limited number of reasons under limited circumstances.  Be sure that your board or council is familiar with the allowances and limitations of ORS 192.660 and related statutes and rules before calling an executive session.  When in doubt, check with legal counsel before noticing the meeting to ensure that all requirements are properly met.

Discipline and Discharge

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Discipline and Discharge

By Lori Cooper

All employers are faced with situations where an employee needs to be disciplined or have their employment terminated. This article will discuss how to avoid making some obvious mistakes when handling the discipline and termination processes.

Use a Thoughtful Process

In this litigious era, employers should expect that any discipline or termination could result in a lawsuit or a claim for damages. If the employer has not thoroughly planned the discipline or termination, which includes demonstrating that you attempted to work with the employee on their shortcomings and articulated a reason for the discipline or termination, you may be left without an adequate defense against a claim of discrimination or retaliation. An employer’s best defense to a claim of discrimination or retaliation is a well-documented, thoughtful, and legal basis for discipline or termination, one that is clearly expressed and explained to the employee.

Avoid Unfortunate Timing

Employers should avoid incidents of unfortunate timing, such as terminating or disciplining an employee after they return from OFLA-protected leave for an event that occurred prior to their leave.  Under state and federal law, timing alone is insufficient to prove a discriminatory motivation. However, prudent employers understand that incidents of unfortunate timing may raise an inference of discrimination. It is not always possible to avoid incidents of unfortunate timing, but it is usually possible to avoid delay. If an offense is sufficient grounds for discipline or termination, then employers should act promptly. Failure to do so can create a question in the mind of a judge or jury: if this offense was so bad, why did the employer wait six weeks to take action?

Make a Record

You have probably heard the saying “If it isn’t written down, it didn’t happen.” A written record of progressive discipline for offenses is particularly important in defending claims that the discipline or termination was in retaliation for taking protected leave, or violates the  ADA (among other reasons).  By its very nature, discipline or termination for “just cause” pursuant to a CBA requires documentation of progressive discipline, except in very limited circumstances. For public sector employers, employees who are represented by unions are, in most situations, required to receive progressive discipline before a termination can occur – this establishes a “just cause” basis for termination.

Give Due Process

Under due process principles, a public sector employee is entitled to “notice and a meaningful opportunity to be heard” before their employer can fire them, or before receiving discipline that has an economic consequence, like a suspension without pay.  Employees represented by a union must receive due process (also known as a “Loudermill” hearing).

Even non-represented employees might be entitled to receive due process because the employer’s policies require it, or because their employment contract specifies that due process must be provided.  In many cases, providing due process even to those employees who are not legally entitled to it can be helpful to an employer facing a potential claim from that employee.

Consult with Your Trusted Legal Counsel

There is no such thing as a “slam-dunk” discipline or termination.  In this era of litigation, every discipline or termination decision could be subject to a claim or a lawsuit.  Therefore, conferring with legal counsel about proposed discipline or termination before issuing notice of such to the employee is a wise use of funds and time.  The Local Government Law Group stands ready to assist you in the event that you need to discipline an employee or terminate their employment.

Changes to OFLA and PLO

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Reminder about Changes to Oregon Family Leave Act

By Mark Wolf

 

This is a friendly reminder about the Oregon Legislature’s recently passed Senate Bill 1515, which made changes to the Oregon Family Leave Act (OFLA) effective July 1, 2024.  The goal of these change was to minimize overlap between the provisions of OFLA and Paid Leave Oregon (PLO).  This is your reminder to review and update your policies consistent with the changes from SB 1515.

Here are the key changes from SB 1515:

  • The qualifying events under OFLA will be significantly reduced.
    • OFLA will no longer protect the following leaves (but leave may qualify under other protected leave laws):
  • Parental leave
  • Leave due to a serious health condition of the employee or employee’s family member
    • OFLA will continue to protect leave for the following reasons:
  • Bereavement
  • Pregnancy-related disabilities
  • Home care for the employee’s child (both serious and non-serious health conditions) as well as school and/or childcare closure for public health emergencies.
  • From July 1, 2024, through December 31, 2024, OFLA will also provide up to two additional weeks of leave “to effectuate the legal process required for placement of a foster child or the adoption of a child.” PLO will incorporate this leave beginning January 1, 2025.
  • OFLA will no longer run concurrent with PLO. Eligible employees may choose from either OFLA or PLO (but not both) for qualifying events. This change clears up current questions regarding leave-stacking.
  • Employees must be permitted to use any accrued paid benefits (paid vacation or sick leave) to supplement their PLO benefits up to the amount of full wage replacement. Employers may allow employees to use accrued leave up to the full number of missed hours, so that they take home more than their full wage.  Employers may determine the order in which accrued leave must be used when more than one leave type is available.
  • OFLA leave is capped at 12 weeks for home care of the employee’s child. Bereavement leave is limited to two weeks per death and is capped at a maximum of 4 weeks per year.
  • OFLA provides up to 12-additional weeks for pregnancy related disabilities.
  • The OFLA leave year is to be aligned with PLO, which is to be counted in the “measured forward” method starting a period of 52 consecutive weeks beginning the Sunday immediately preceding the first date of leave.

In light of these changes, you may need to review and revise your leave policies, forms, and procedures, if you have not done so already.  BOLI’s website contains forms that can be used to track employee leave.

One Year of Recreational Immunity

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Armand Resto-Spotts

Oregon’s “recreational immunity” law has been a hot topic in the local government world this past year.  After a July 2023 Court of Appeals decision, which interpreted and applied the statutory protection in a new way, the Oregon legislature recently passed a bill temporarily re-framing recreational immunity under law.  Although the bill’s language mostly reflects our traditional understanding of recreational immunity, there are a few important changes to note, specifically in how local governments manage recreational trails and areas going forward.

Recreational Immunity

Generally, under Oregon law (ORS 105.668, .682, .688), public and private landowners who make available their land, without charge, for recreational use by the public are protected from liability for injuries that a person may receive while recreating on that land.

Importantly, this “recreational immunity” protects local governments from lawsuits that may arise from the public’s use of trails, recreational spaces, or other public easements.  ORS 105.688 offers the primary protection for local governments that make public spaces available for recreational uses.  ORS 105.668 affords additional protections – namely for any use of a trail or structures within a trail in a public easement or unimproved right of way – which automatically apply to cities with a population of 500,000 or more, and may be opted into by cities with lesser population.

Fields v. Newport Changes

Last year, the Oregon Court of Appeals issued an opinion in Fields v. Newport that changed immediately available relief for cities, counties, and owners of private property.  The plaintiff was injured while walking her dog on a City-improved trail system that provided access to a non-city recreational area, i.e. a state beach.  Although the court affirmed the notion of recreational immunity, it remanded the case to the trial court for the jury to determine the particular question of whether the plaintiff’s primary purpose for using the improved trail was “recreational” in nature.  If so, then state law confers immunity on the city.  However, if the plaintiff’s purpose was not recreational – for example, only using the trail to access the beach – then the City may not be able to avail itself of immunity under state law, because the trail was improved and the statute only confers immunity to unimproved trails leading to recreational areas.

Despite the unique facts presented in the case, the Court of Appeals’ decision did throw into question the application of recreational immunity for public and private landowners – namely, whether immunity applies when the recreational user was not primarily “recreating” as defined by statute, but instead using the trail or area to access another location for recreation.  It also raised a common and related question of whether immunity should extend to an “improved” trail system.

Ultimately, the court’s interpretation of “recreational immunity” exposed public and private landowners to new risks, as it allowed for public users to argue that they were not “recreating,” by definition, and therefore not prohibited from bringing a lawsuit in the event of injury.

Senate Bill 1576 – Changes to Recreational Immunity Law

Given these new risks, the Newport decision garnered severe criticism from local governments, land trusts, and other landowners of recreational spaces.  CIS Oregon also issued advice expressing deep concern of the court’s opinion, and recommended that local governments consider closing trails until the legislature implemented a fix.

In response, due in part to local governments’ collective efforts, the Oregon legislature passed Senate Bill 1576, which sought to bolster and affirm recreational immunity.  The bill modified Oregon’s recreational immunity law in three important ways.

First, the bill adds to the definition of “recreational purposes,” which now extends to “walking, running, and bicycling,” in addition to other recreational activities listed in ORS 105.672.  Ideally, these new activities would capture a scenario like the one in Newport, where a public user is “walking” to access another recreational area.  Walking should now be treated as being undertaken with a “recreational purpose,” which is properly subject to immunity under ORS 105.682-.688.

Second, the bill extended recreational immunity to “improved” right of way that is designed or maintained to provide access for recreational purposes, subject to certain limitations.  This captures trails and areas where a local government has improved the land; however, the purpose of the improvements and right of way must still be for recreational purposes.

Third, the bill replaced “city” with “local government,” as specifically defined under ORS 174.116.  That latter statute defines “local government” as inclusive of cities, counties, and local service districts.  Importantly, then, the bill expressly affords recreational immunity under ORS 105.668 to special districts.

Interestingly, the bill has a sunset clause of January 2, 2026, meaning that these statutory changes are only effective until that time.  After that date, the language under ORS 105.668, .672, and 688 will revert to its original form.  Accordingly, this temporary fix to recreational immunity provides time for the legislature – and interested groups – to figure out a long-term solution to the problem raised by Newport – hopefully in the upcoming longer 2025 legislative session.

Next Steps for Local Governments

As a service provider, through management and maintenance of parks, trails, and other recreational areas, local governments need to be cognizant of these changes to recreational immunity.  Here are a few important reminders.

Foremost, all local governments that are responsible for recreational areas or trails must still actually maintain those areas and trails in a prudent, reasonable manner.  Recreational immunity does not protect against gross negligence or reckless, intentional misconduct.  Local governments should not abdicate their responsibility to maintain recreational facilities.

Second, recreational immunity is not the only defense for a city or local government to reduce liability risks.  For example, cities still have discretionary immunity, particularly in situations where a governing body has approved or adopted specific plans, like a park maintenance plan.  It is recommended that cities and local governments have appropriate policy-makers make decisions about what improvements, if any, are needed for recreational areas.

Finally, local governments with a population less than 500,000 have the option to “opt in” to the additional protections of ORS 105.668, which affords broader immunity than that provided generally to landowners under ORS 105.688.  Specifically, ORS 105.668 provides immunity against negligence claims from the use of a trail or structures (i.e., improvements in a trail) in an unimproved right of way or public easement.  If a local government wants to opt-in to the law, it may do so by adoption of an “ordinance, resolution, rule, order, or other regulation.”  It is recommended that in doing so, the local government establishes the intent to opt in and expressly referencing ORS 105.668’s provisions under which the city wants to extend immunity.