Recent Changes to Public Records Law

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Mark Wolf

From our November 2017 e-newsletter

The Oregon Legislature passed four public records laws last session – SB 481, SB 106, HB 2101, and HB 3361. This article focuses on the impacts of SB 481, which among other things, sets time requirements that public bodies must meet when responding to requests for public records and specifies the process for responding. Currently, if a person makes a written request to inspect a public record or to receive a copy of a public record, the public body receiving the request shall respond as soon as practicable and without unreasonable delay. Effective January 1, 2018, the public body has five business days to either (a) acknowledge the response, or (b) complete the request. How to acknowledge the response:

  • Confirm that the public body is the custodian of the requested record, or
  • Inform the requester that the public body is not the custodian, or
  • Notify the requester that the public body is unsure whether it is the custodian of the record.

After acknowledging the response and within an additional 10 business days (for a total of 15 business days after receiving the request) the public body must:

  • Complete the request, or
  • Provide a written statement that the public body is still processing the request and provide a reasonable estimated completion date.

Complete means the public body has:

  • Provided access to or copies of all non-exempt requested records,
  • Asserted any exemptions to disclosure,
  • Complied with ORS 192.505 – separate exempt from non-exempt material and make non-exempt material available,
  • Provided written statement that the public body is not the custodian of record,
  • Provided a statement that federal or state law prohibits the public body from acknowledging whether any requested record exists, AND
  • Told the requester appeals rights if exemptions were asserted.

Other changes:

  • The shot clock pauses when: (1) the public body tells the requester a fee is due to process the request (once paid or waived, the clock resumes), or (2) the public body requests additional information or clarification for the purpose of expediting the public body’s response (clock starts once requestor provides this information or affirmatively declines to provide it).
  • The time limits do not apply if: (1) necessary staff to complete the request is unavailable, (2) processing the request would impede other necessary services, or (3) the volume of requests is too large. However, the public body must still acknowledge and complete the request as soon as practicable and without unreasonable delay in these situations.
  • The public body shall close the request after 60 days if the requester fails to pay fees due or fails to respond to a request for information or clarification.

Best practices:

  • Ensure you have a written policy (if not, create one) available to the public and specify the designee who will process the requests.
  • Require all requests to be in writing.
  • Include a list of records available online on the same site or form that explains the record request policy – this may help reduce the overall requests received.
  • Make sure you follow all time deadlines.
  • Call your attorney to ensure your policy updates comply with the new law or if you have any questions regarding these changes in the law.

Avoiding Common Personnel Pitfalls

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Christy K. Monson

From our November 2017 e-newsletter

We’ve noticed that many cities and districts often make the same personnel mistakes. So, in the interest of helping you avoid some of these common pitfalls, we’ve listed what we consider the costliest mistakes below. If you’d like advice on any of these common errors, please don’t hesitate to call us.

  1. Adopting Conflicting Policies And Handbooks. Governments should adopt a simple Employee Handbook. This is a good practice. However, many governments, in addition to adopting an Employee Handbook, also adopt: Standard Operating Procedures (SOPs), Standard Operating Guidelines (SOGs), Lexipol policies, Collective Bargaining Agreements, and Employment Contracts. With so many other documents, it’s not surprising that over time policies have been amended to contain conflicting rules. Your City or District should place all of its personnel rules in one document – your Employee Handbook. Other more specific rules (such as rules about use of force for police officers or rules about breathing apparatus use for firefighters) can be placed in SOPs or SOGs – but the subject matters should not overlap or conflict. Also, your policies must always clearly provide: 1) which employees are subject to which policy; and 2) the order of priority regarding which policy/rule “trumps” the others in case of a conflict.
  2. Adopting A Neighboring Government’s Policies. Some laws do apply to all governments, such as certain constitutional protections against discrimination. However, some laws apply only if your government has a certain threshold number of employees. For example, for your employees to be covered under the federal Family and Medical Leave Act (FMLA), you must employ at least 50 people within 75 miles of your worksite. By adopting a larger jurisdiction’s policies, some smaller governments have inadvertently obligated themselves to provide all FMLA benefits to all employees, even though they are not legally required to do so. While it’s completely legal (and good) to provide better benefits than the law requires – you should at least be making these decisions knowingly. Adopting the wrong policies could lead to serious unfunded liability, unintended contractual obligations, and scheduling and staffing issues.
  3. Authorizing Non-Union Staff To Receive Benefits Of A Collective Bargaining Agreement. Some governments “tie” non-union benefits, processes, or wages to the union’s collective bargaining agreement (CBA). While it may seem fair and easy to operate in this way, it is generally a mistake. Many non-union workers are salaried, FLSA-exempt employees and their positions don’t easily fit within the CBA processes and benefits. Further, sometimes management staff participates in bargaining – thus possibly giving rise to a conflict of interest if management staff negotiates for pay and benefits that they will personally receive later on.
  4. Forgetting That Elected Officials Don’t (Usually) Have Authority Over Personnel Issues. For the great majority of Oregon’s governments, personnel and employment issues are properly managed by your chief executive. This is because committees, boards, and councils, by their very nature, are horrible bosses. They usually do not have the time, expertise, or resources to manage a staff. There are too many decision makers on a board for that board to provide clear, concise, and timely direction to an employee. This is likely why most City Charters forbid councilors from interfering in a City Administrator’s duties. The only management job most elected officials have is to manage one employee, the administrator/fire chief/superintendent (“the CEO”).
  5. Not Delegating The “CEO” Management Job. Many governments tend to forget to put into place simple processes which would allow them to be good managers of the “CEO”. At your first meeting, your board or council should decide which elected official will serve at the CEO’s point of contact for job related questions/approvals, such as vacation authorization, paycheck questions, and disciplinary issues. You should also put into a place an annual plan to evaluate the CEO’s job performance and consider pay raises and employment contract issues.
  6. Entering Into Employment Contracts For All Or Most Employees. Employment contracts should only be used for high level employees who may be subject to political pressure due to the nature of their jobs. Usually, for Oregon’s governments, this means the CEO. Employment contracts are not good tools to manage the employment relationship between your government and its regular employees.

Reimbursement of Costs for Police and Corrections Officers

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Rebekah Dohrman

From our November 2017 e-newsletter

ORS 181A.620 provides that law enforcement units may seek reimbursement from another law enforcement unit when police or corrections officers leave employment in one unit and are subsequently employed by another unit. During the 2017 legislative session and as a means of reducing friction between law enforcement units, HB 2611 was introduced to clarify how ORS 181A.620 applies and what costs are reimbursable. The amendments to ORS 181A.620 become effective on January 1, 2018. HB 2611 provides that when a corrections or police officer employed by a law enforcement unit who has completed any portion of basic training voluntarily leaves employment with that law enforcement unit and is subsequently employed by a different law enforcement unit in a position that requires the same training, then the subsequent employing law enforcement unit shall, upon request, reimburse the original employing law enforcement unit for qualifying expenses incurred by the original employing law enforcement unit. The new law requires that the original employing law enforcement unit request reimbursement in writing from the subsequent employing law enforcement unit within 6 months of the date on which the corrections officer or police officer was hired by the subsequent employing law enforcement unit. Reimbursement under ORS 181A.620 may be limited by employment agreements and collective bargaining agreements. HB 2611 amends ORW 181A.620(1) by deleting the definition for “training costs” and adding the following definition:

(e) “Qualifying expenses” is defined as “the actual amount of salary and benefits paid by a law enforcement unit to a corrections officer or police officer while that corrections officer or police officer was:

(A) Engaged in basic training; (B) Completing up to six weeks of corrections officer field training; or (C) Completing up to 16 weeks of police officer field training.

Reimbursement under HB 2611 follows the same pro rata reimbursement schedule set out in ORS 181A.620 (12 months, 24 months, 36 months), but clarifies that the period of time is measured as of the date the corrections or police officer began employment with the original law enforcement unit. Under the current version of ORS 181A.620 and to seek reimbursement, the “original employing governmental agency” is required to have adopted the pro rata reimbursement schedule contained in ORS 181A.620(3) and incentives to promote the retention of employees under ORS 181A.620(6). If you seek reimbursement from another law enforcement unit between now and January 1, 2018 and have not yet adopted the above-mentioned reimbursement schedule and polices, then please contact us for assistance. Under HB 2611, no special policies or other action are required for the City to take advantage of the new law.

Budget Process in 4 Simple Steps

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Mark Wolf

From our February 2018 e-newsletter

It’s hard to believe that it’s already February and budget season is ramping up again. If you haven’t already done so, the first step in the budget process is to appoint a budget officer. Typically the budget officer is the chief executive officer (i.e. the fire chief or the city administrator), but your finance officer or even your attorney may function as the budget officer. Step two is to review the composition of your Budget Committee. Your Budget Committee consists of the members of your governing body and an equal number of appointed electors. The appointed members of the Budget Committee may not be officers, agents, volunteers or employees of your entity. If for some reason you cannot find enough electors for the Budget Committee, you may still move forward with the budget process. Just make sure that your minutes reflect the efforts you made to recruit citizen members. Your third step is to make a copy of your proposed budget available for public review immediately after the budget officer releases it to the Budget Committee. Your budget officer must publish notice of the budget committee meeting, as well as a notice of the budget hearing held by your governing body. Both the notice of your first budget committee meeting and the notice of your budget hearing can be published in one of four ways. The most common method of publication is to publish the notice in a newspaper of general circulation, at least 5 and not more than 30 days prior to the budget meeting or hearing. If you chose to publish in the paper, the notice of the budget committee meeting must be published twice. Notice of the budget hearing only needs to be published once. If your entity is located in Washington County, you must also send budget information to the County. The notice of your budget hearing must include a summary of the budget approved by the Budget Committee. The Oregon Department of Revenue provides forms you can use to develop and publish your budget. You can find these forms by clicking on the following link and scrolling down to “Local budget”: http://www.oregon.gov/DOR/forms/Pages/default.aspx The fourth step is to adopt the budget. Remember, your governing body has the ability to make changes to the Budget Committee’s recommended budget. New information introduced at the budget hearing should be carefully considered by the governing body prior to budget adoption. If a proposed change to the budget includes an increase in taxes, or more than a 10% increase in a fund, additional notice is required. Changes to the budget after adoption also generally require action by the governing body and sometimes require additional publications and public hearings. For this reason, all available information should be collected and considered during the budget process. Your budget must be adopted on or before June 30. Finally, in thinking about your budget, consider which projects and purchases are planned for this upcoming year. Not only will this process assist you in projecting your entity’s expenditures and revenues, this level of planning will also allow you to provide the required notice to the Bureau of Labor and Industries (BOLI). State law requires that at least 30 days prior to budget adoption, your entity must submit to BOLI a “WH-118 form,” listing each public improvement your entity plans to fund in the upcoming budget period. For example, if you are planning to budget and use public funds to build a new fire station in the next year, you must file a form WH-118 with BOLI at least 30 days before your budget is adopted. Form WH-118 is available on BOLI’s website at http://www.oregon.gov/boli/WHD/PWR/docs/wh118.pdf As always, if you encounter any legal issues during your budget adoption cycle (or if you learn of information or receive additional revenue requiring a change in your adopted budget) please contact your legal counsel as early as possible. An ounce of prevention is worth a pound of cure. It is much more cost effective and efficient to consult with your legal counsel before a problem develops.