Food, Travel and Lodging

/in /by

Carolyn H. Connelly

As you are probably aware, Oregon ethics laws impose limits on the value of gifts that public officials (such as city councilors, board members and staff) may accept from entities with a legislative or administrative interest in the decisions made by those public officials. There are several exemptions from these gift restrictions. These include an exemption for the receipt of reasonable food, travel, and lodging expenses related to officially designated negotiations or economic development activities, or officially sanctioned trade-promotion or fact-finding missions or trips.

The most recent version of the administrative rules adopted by the Oregon Government Ethics Commission requires that the entire governing body must officially designate or sanction the trip or activity and authorize the payment of expenses before a public official can accept reimbursement.

A previous version of the Ethics Commission’s administrative rules allowed public officials to personally authorize their acceptance of expenses for officially designated negotiations or economic development activities and officially sanctioned trade-promotion or fact-finding missions or trips. The current administrative rules no longer allow this type of “self-sanctioning” unless the public entity officially delegates that authority to individual councilors or board members.

If your government determines that it would be more time or cost-effective to delegate the authority to accept payment of expenses to individual councilors or board members, your governing body must adopt a resolution delegating that authority.

If you would like this type of resolution or have any other questions, please contact our office.

Lose Those Liability Gaps

/in /by

Ross Williamson

Like most of you, the attorneys at the Local Government Law Group started the New Year by making New Year’s resolutions. But, as local government junkies, some of our resolutions can be a little “different”. This year, we skipped the weight loss resolution. Instead, we are resolving to help our clients lose those nasty tort liability gaps created by using outdated contracts.

By now, we all know that caps on tort liability damages for public entities under the Oregon Tort Claims Act (“OTCA”) increase from year to year effective July 1. But many may not know exactly what to do about these annual increases.

For most purposes, the good folks at City County Insurance Services (“CIS”) and the Special Districts Association of Oregon (“SDAO”) have public entities covered for these increases in the OTCA damage caps. CIS and SDAO are well aware of the OTCA damage caps and provide coverage accordingly. However, that does not mean that your government is in the clear.

Does your government use form contracts or recycle previous contracts? One area where form contracts can quickly become obsolete is in listing insurance requirements for contractors. If you are using a contract with a static liability insurance requirement, and one or more July has come and gone, it is likely that your contract is creating gaps in liability protection.

For example: Say you have been using the same contract for several years that requires a particular service vendor to obtain liability insurance in the amount of $500,000 to cover personal injury claims against your public entity. Well, that may have been good in 2010, but today’s OTCA personal injury damage cap is up to $566,000 for a single claimant. These numbers nicely illustrate the possible $66,000 liability gap that using an old contract creates.

In addition, the State of Oregon’s OTCA damage caps are much higher than those of local public entities. The State’s current personal injury damage cap for a single claimant is $1.7 million. But that doesn’t mean anything to us local government entities, right? Wrong. If you contract with the State, and especially if you provide services to or on behalf of the State, you need to be aware of the State’s OTCA liability limits. In certain situations, by doing work for the State, you may be taking on the State’s higher liability cap. Make sure to contact your insurance company, insurance broker, or attorney when you review a contract that has you working closely with the State of Oregon. If you take on the State’s liability limits, you certainly only want to do it with full knowledge.

We hope you will join us in resolving to get rid of those nasty tort liability gaps. And remember, come July 1, those OTCA damage caps will go up again.

The Appropriate Role of Elected Officials for Collective Bargaining

/in /by

Diana Moffat

From our Spring 2015 e-newsletter

When local governments (cities, counties, and special districts) are negotiating successor Collective Bargaining Agreements with their unions, it is good to take some time to think about the role of elected officials in the process. Elected official involvement is critical for successful negotiations. But should that involvement extend to the actual physical presence at the bargaining table? The answer is usually no.

First, elected officials make policy decisions which guide your overall bargaining strategy. They establish the parameters for your bargaining team. For example, if the policy direction is to change health insurance benefits and/or increase the employee’s share of the insurance premium, then the bargaining team’s responsibility is to put that on the bargaining table and make every effort to gain voluntary union approval. The bargaining team is tasked with the strategy of how to get this goal accomplished. If there is no agreement, then the team brings that information back to the Council, Commission or Board for an update and any recommendations. If the Board, Commission or Council determines the issue is to be a “line in the sand,” then their bargaining team continues that position, including any dispute settlement process (mediation, strike, interest arbitration). The jurisdiction’s labor lawyer/negotiator meets with the elected officials in executive session to fully and confidentially discuss these parameters, goals and directions.

Secondly, the elected officials also evaluate the effects of your bargaining proposals on service delivery. They look at the “big picture” and are not involved in the exact wording of a contract provision, which may take numerous bargaining sessions to arrive at a mutually-acceptable clause. The responsibility for exact language is your negotiators, who works with the appropriate department heads and the chief administrative officer to protect the jurisdiction’s long-term ability to manage and implement the proposals. No elected official can be expected to have operational expertise in all aspects of the jurisdiction’s services.

Thirdly, union negotiations are an adversarial process dictated by state statute and by nature. Many items can become “zero sum” at the table. If an elected official is present, then the union will always look to him/her for the final answer, no matter what the negotiator may say. This puts unreasonable pressure on the elected official to say yes or no on the spot, without the opportunity to discuss the issue in a larger context with their other elected officials, and outside of the heat of the immediate situation. If an elected official agrees to a particular union proposal while at the bargaining table, he/she is obligated under the law to make an affirmative yes recommendation during formal Council, Commission or Board hearings no matter what the public input or colleague input might be. That may place an elected official in a very awkward position.

Fourthly, collective bargaining can take a huge amount of time. Given the number of hours involved in the budget, land-use, public safety, public works, and other policy decisions, there is usually not time for an elected official to adequately participate as a bargaining team member. This is not to argue that an elected official could never be a team member, only that it is very difficult to do so without negative consequences for the jurisdiction.

Finally, the U.S. Conference of Mayors, the National League of Cities, the National Public Employer Labor Relation’s Association, and their Oregon State affiliates, all recommend that elected officials not be at the bargaining table. The officials need the flexibility to change their position over the course of the negotiations, if necessary, to gain a voluntary agreement. Officials pay the negotiator to say “no,” but, negotiators can also give credit to the elected officials for any voluntary agreements reached with the union. This formula has worked well for most jurisdictions during the history of collective bargaining in the public sector.

Construction project in your future? Remember 1.5% for green energy!

/in /by

Ross Williamson

From our Spring 2015 e-newsletter

Is your public entity considering a new building, or the major renovation of an existing building? If so, you need to consider whether state law requires the inclusion of green energy technologies in your building project.

Oregon law requires public entities, including local government entities, to spend 1.5% of the total contract price of a public improvement contract for new construction or major renovation of a public building on green energy technology. This requirement was originally established in 2007, but was amended in both 2012 and 2013. The requirements are found in ORS 279C.527 – 279C.528 and administrative rules adopted by the Oregon Department of Energy.

So what is “green energy?” It is more than just solar panels. Green energy includes solar technologies (photovoltaic, solar hot water, passive solar and day lighting) and certain geothermal systems.

The requirement for adding green energy technology to a building applies to any new public building with construction costs of more than $1,000,000 and any building renovations with construction costs of more than $1,000,000 and 50% of the insured value of the building.

The law also includes reporting requirements. If you have a building project subject to the requirements, you must report the project to the Department of Energy. An electronic form is available on the Department’s website. You will need to make the report before construction of the green energy system begins.

Even if the construction project fits within the dollar values requiring the green technology, there are some exceptions. For example, a public body can consider whether green energy technology would be inappropriate for the building site. But the exceptions come with other requirements that the public entity must follow.

The 2015 Legislature is proposing small “tweaks” to the law, but no wholesale changes. HB 2987 would make some changes to the process used by governments if the government excludes a project from the green energy requirement. HB 3329 would make a change to the geothermal technologies that would qualify as “green energy.” As of this printing, both bills have received hearings, but neither bill has been adopted.

The take-away is this: If you have a construction project that is projected to cost over one million dollars in your future, please make sure you investigate the green energy requirements. These requirements have been in place for several years now, but we have found that many public entities are not familiar with all the requirements. Before you start a new project, you should contact your legal counsel or the Department of Energy to help you understand all the ins and outs of the green energy requirements.