Chief Executive Officer Performance Evaluations: Tips for the Governing Body and CEO

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Lori Cooper

From our Fall 2022 e-newsletter

Evaluating your entity’s chief executive officer’s (CEO) performance is one of the governing body’s most important tasks. While there is not a “one size fits all” evaluation process, there are several key elements which your entity should include in the process. The overall goal for a performance evaluation should be to help the CEO, the governing body, AND your entity.

What is the purpose of a performance evaluation? There are many purposes, which include discussing performance (obviously!), meeting contractual requirements, celebrating accomplishments, providing a means to discuss needed improvements, and enhancing governing body and CEO communications.

As alluded to above, there is more than one way to conduct a performance evaluation, and each entity should do what works best for it. Typically, the CEO’s performance is evaluated on an annual basis, usually on or around the anniversary date of the CEO’s hiring. A formal written evaluation is the best practice, but requires more effort up front. The good news is that once a formal written evaluation process is put in place, the framework can be used year after year (with minor updates) and does not have to be onerous or time consuming.

Developing an evaluation form can be a collaborative effort between your governing body and CEO, and a rating system should be defined. Rather than just numerical ratings, it is helpful to allow for written comments. A good place to start when establishing performance standards is to review the CEO’s job description, aligning the standards with the essential functions and abilities set out in the job description.

Another useful tool that can be implemented as part of the performance evaluation is for the CEO to submit a self-evaluation to the governing body in advance of the formal performance evaluation. In this self-evaluation, the CEO should provide self-reflection on the performance standards and goals which have previously been set by the governing body. The CEO’s self-evaluation helps the employer understand what has been accomplished and makes them aware of obstacles that may have prevented accomplishment of goals.

Remember that the meeting to conduct the CEO’s performance review must comply with the Oregon public meeting laws. That law requires you to provide sufficient advance notice of the planned executive session to allow the CEO to decide whether to request that the governing body hold their performance evaluation instead in open session.

Another cautionary note is that discussion of the CEO’s salary may not be conducted in executive session. Instead, job performance may be evaluated in executive session, but any associated discussion of compensation for that officer must be held in open session.

In summary, conducting a fair and productive performance evaluation of your CEO does not have to be a stressful or unpleasant task. A performance evaluation should be a positive, objective process that is performed in a supportive atmosphere. It should be a tool to guide any needed changes, as well as a method for promoting your entity’s goals, values, and continuous improvement.

Have You Checked Your CPI? The Portland CPI index has been discontinued

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Diana Moffat

From our February 2018 e-newsletter

Many local government agencies rely on the Bureau of Labor and Statistics (BLS) Consumer Price Index (CPI) to determine wage increases and other forms of compensation for their employees. The CPI is a measure of the average change over time in the prices paid by urban consumers for a market basket of consumer goods and services. It is used as a way to maintain relative buying power as the cost of goods and services escalate, thus keeping wages current relative to the market. The BLS publishes CPIs for two population groups: (1) the CPI for Urban Wage Earners and Clerical Workers (CPI-W) that comprise some 32% of the total population and (2) the CPI for all Urban Consumers (CPI-U) and the Chained CPI for All Urban Consumers (C-CPI-U), which cover 87% of the total population and includes a much broader range of workers. The BLS also publishes parts of the CPI-U and CPI-W based on large cities and/or regions of the country. For example, there is a Western Region statistic, based on the urban areas of the west, including Alaska and Hawaii. An overall western region index is published, as well as two population levels (50,000-1,500,000 population and population over 1,500,000). The Portland-Salem index, one of the regional indexes, was published twice a year, for January and July. This index is found in many Oregon union contracts. In January of 2018, the BLS revised its geographic area samples and eliminated the Portland-Salem index. The new sample consists of only 75 urban areas-large, medium, and small. There previously were 87 urban areas, including the Portland-Salem area. If you have a Collective Bargaining Agreement with your union that provides for future wage increases based on the Portland-Salem CPI index, you should contact your labor attorney to make a plan for how to move forward.

2021 Legislation – Action Items

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Carrie Connelly

From our Summer 2021 e-newsletter

Homelessness:

1. Pursuant to ORS 203.077, all cities and counties are required to enact policies recognizing the problem of homeless individuals camping on public property, and ensuring humane treatment in the event of removal from those sites. If your city does not yet have such a policy on the books, we can help you draft and adopt the requisite provisions. If you have previously enacted such policies, HB 3124 amended ORS 203.079 to increase the notice required prior to such removal, from 24 to 72 hours, and modified where unclaimed personal property must be stored. As these amendments went into effect upon passage, let us know if we can assist your city in adopting needed amendments as soon as possible.

2. HB 3115 requires municipalities to review their codes and ensure that “any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness,” in conformance with the Ninth Circuit’s decision in Martin v. City of Boise. HB 3115 has a delayed implementation date of July 1, 2023, providing some time for needed Code audits.

As HB 3115 applies expressly to “any city or county law,” by its own terms this new law does not impose any new obligations on special district entities. More importantly, it appears that the new law does not impact a special district entity’s ability to regulate access to its own property, particularly with regards to prohibiting trespassing.

Public meetings:

As of January 1, 2022, ORS 192.670 is amended by HB 2560 to require all meetings (excluding executive sessions) of the governing body of a public body to allow for virtual or electronic participation “to the extent reasonably possible.” Technical failures, disruptive participants and considerable added costs may render such participation “unreasonable.” Take steps now to allow virtual or electronic participation in your entity’s public meetings. Before electing that remote participation is unreasonable, be sure to evaluate your entity’s obligations under the Americans with Disabilities Act.

Mandatory Reporting:

HB 3071 amends ORS 124.050 to include all elected officials as mandatory reporters of child, elder and vulnerable adult abuse. This obligation is personal, and extends beyond events witnessed or learned of through official conduct. The push for this amendment stemmed from alleged sexual abuse and misconduct at a Salem church. Apparently, abuse was reported to the Church’s board of directors (whose members included law enforcement and elected officials) who did not report the allegations to appropriate law enforcement.

While reporting suspected abuse is not a difficult process, elected officials should know when and how to fulfill this new obligation. Scheduling a training prior to the bill’s effective date of January 1, 2022, may help them feel more comfortable in their new role.

Lift Charges:

Unless otherwise authorized by law, HB 2397 prohibits local governments from regulating long term and residential care facilities. This prohibition includes imposing fees exclusively on such facilities. EMS service providers regularly charge care facilities for calls to lift a fallen individual back into bed. Fortunately, both general and specific exceptions in HB 2397 allow EMS providers to continue charging such fees.

First off, the prohibition applies only to fees that apply “exclusively” to long term or residential care facilities, not those that are “generally applicable” to other business entities. Please double check that your entities’ fee schedules do not single out protected care facilities.

Beyond that, HB 2397 further clarifies that the prohibition does not apply to a “fine, fee, charge or sanction” against long term or residential care facilities that contact EMS providers to provide lift assist services to a fallen resident. This exemption, however, does include a qualifier; the facility must have “known, or reasonably should have known” that the fallen individual “does not require the services of an emergency medical services provider.”

As a result, care providers may argue that they are not medical professions, so cannot know which residents require EMS assistance after a fall. Only a court can clarify the parameters of this exemption. However, with the added protection for fees that do not apply only to such care facilities, chances are that such charges will not be successfully challenged.

While HB 2397 may not be as clear as the drafters hoped, EMS providers should be able to continue charging for lift services. Be sure that your fee schedule (and practices) do not charge a lift fee only to protected care facilities. Further, document carefully how and why a fallen individual clearly did not require EMS services. If in doubt, call our office on protected and prohibited charges.

2021 Oregon Legislation Police Reform

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Diana Moffat

From our Summer 2021 e-newsletter

The following bills, amongst others, came out of Oregon’s 2021 recent legislative session. The following bills could be of interest to you as you navigate your relationships with your unionized public-sector employees. The bills outlined below contain just a summary of the newly enacted statutory requirements. You should consult with your management Labor Attorney for full details and best practices for implementation.

HB2930 – Police Misconduct – Arbitration proceedings (7/1/2021)

http://olis.oregonlegislature.gov/liz/2021R1/Downloads/MeasureDocument/HB2930/Enrolled

For Collective Bargaining Agreements entered into after July 1, 2021, grievances related to misconduct allegations for law enforcement officers will be resolved pursuant to the new statutory requirements. The burden of proof, upon the employer, is set at a “preponderance of the evidence” rather than the traditional “clear and convincing” evidence standard. Just cause is that as defined in ORS 236.350. The Oregon Employment Relations Board will appoint a person from a list of qualified, indifferent and unbiased persons to serve as the arbitrator of the proceeding. The appointed arbitrator shall uphold the disciplinary action unless the arbitrator finds that the disciplinary action is arbitrary and capricious. The bill also creates a commission through the DPSST to build a non-bargainable statewide discipline guide to address significant misconduct in the specified areas of misconduct.

HB2929 – Duty to Intervene and Report Misconduct

https://olis.oregonlegislature.gov/liz/2021R1/Downloads/MeasureDocument/HB2929/Enrolled

A police officer, including reserve officers, who witnesses another officer engaging in excessive force, sexual harassment, sexual misconduct, discrimination based on protected class, or a crime, must report the conduct to a direct supervisor, someone in the chain of command, or the DPSST within 72 hours of the observation. In addition, the bill provides for a reporting requirement of “a violation of the minimum standards for physical, emotional, intellectual and moral fitness for public safety personnel.”

HB2936 – Restrictions on police officer speech (1/1/2022)

https://olis.oregonlegislature.gov/liz/2021R1/Downloads/MeasureDocument/HB2936/Enrolled

Law enforcement agencies must now “adopt polices” that “set standards for speech and expression by officers in and outside the course and scope of employment.” Such policies must apply to all forms of speech and expression, “including but not limited tofilm video, print media, public and private speech and use of Internet services.” However, the adopted policies “may not violate the constitutional rights to free speech and expression.”

ADDITIONAL POLICE RELATED BILLS WORTHY OF NOTE

HB2162 – Police Accreditation and Equity Training (9/25/2021)

This bill requires police agencies with 35 officers or more to become accredited through an accrediting body determined by the state. The legislation also requires the Oregon Department of Public Safety Standards & Training (DPSST) to develop an equity training program for police and other certified public safety professionals. Police agencies with 100 or more officers must become accredited by July 1, 2025, and agencies with 35-99 officers must meet this standard by July 1, 2026.

HB2513 – CPR Training (1/1/2022)

HB2513 requires all certified police officers and reserve officers to receive three (3) hours of CPR and airway maintenance training, and thereafter receive at least two hours of such training in each maintenance training period. Additionally, when an officer encounters a restrained person suffering a respiratory or cardiac compromise, the officer is now required to immediately request emergency medical service if it is tactically feasible to make such a request and the officer has access to communications.

HB3145 – Police Discipline Reporting (1/1/2022)

This bill requires police agencies to report misconduct findings that result in economic discipline to DPSST.

HB3355 – Crowd Control Identification (1/1/2022)

HB 3355 requires police officers on duty and working crowd control in cities with a population of 60,000 or more to have the first initial and last name or unique identifying number legible on their front and back when engaged in crowd control activities. The requirement would apply to a smaller city that provides officers to a larger city that meets the population threshold through mutual aid.