TO: Mayor and City Council
THROUGH: Krishna Namburi, Interim City Manager
FROM: Dan Atchison, City Attorney
SUBJECT:
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Oregon Government Ethics Commission (OGEC) guidance on Oregon ethics and public meetings law.
Ward(s): All Wards
Councilor(s): All Councilors
Neighborhood(s): All Neighborhoods
Result Area(s): Good Governance.
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SUMMARY:
summary
This report addresses concerns complying with Oregon public meetings law as interpreted by the OGEC.
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ISSUE:
Information only.
RECOMMENDATION:
recommendation
Information only.
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FACTS AND FINDINGS:
All Oregon local government public officials are subject to Oregon ethics and public meetings law. Public officials include local elected and appointed officials (members of City Council, the elected Municipal Court Judge, and members of boards, commissions and committees). Public meetings law applies to governing bodies of public bodies. A public body includes local governments like cities, counties, intergovernmental bodies, and special districts. Governing bodies are groups of public officials of the public body that are empowered to make recommendations or decisions on behalf of the public body and require a quorum (typically a majority of the members) to make decisions.
Oregon Revised Statutes (ORS) chapters 192 (public records and meetings) 244 (ethics) provide the regulatory framework for each subject. OGEC has authority to issue guidance and enforce both ORS chapters. OGEC’s authority over public meetings was expanded through legislation passed in 2023 legislative session, which also included changes to state law concerning serial meetings and other public meetings issues. In late 2024, OGEC issued new rules concerning public meetings law.
Statutory changes:
House Bill 2805 (2023) defined terms related to what constitutes a public meeting and a serial meeting. The bill gives authority to OGEC to administer and enforce Oregon public meetings law and establishes procedures to make and adjudicate grievances concerning public meetings law.
OGEC Administrative Rules:
Amendments OAR Chapter 199 issued in late 2024, among other actions, attempt to clarify rules for public meetings and for executive sessions.
Salem, other local governments and the League of Cities have received guidance and informal advice from OGEC concerning communications by members of governing bodies between each other and with third parties. This guidance has raised significant concerns because it substantially limits governing body members’ ability to communicate not only with each other, but with their constituents and the community.
OGEC has advised governing body members not to discuss pending business or business that may foreseeably come before the governing body with each other, regardless whether that communication is with a quorum or a single member of the governing body, and has cautioned members about speaking to the media, constituents, or other third parties about pending business, stating that such communications lead to “trouble” and may become prohibited serial meetings.
Communications with third parties such as the press, neighborhood associations or constituents.
At a recent public meetings training conducted by OGEC, the OGEC trainer was asked if a member of the press could be considered an “intermediary” by reporting on statements made by members of a governing body made outside a public meeting. The OGEC trainer responded that a member of the press “could be an intermediary,” further stating that “[S]erial communications become prohibited when a quorum has communicated about the deliberations or decisions that are going to come before your governing body.” The OGEC trainer was then asked specifically about responding to press questions about matters coming before the body. OGEC said;
“Its definitely gonna depend on the context. If you’re just sharing updates about what the governing body is working on, then it’s likely not going to veer into the serial communications territory. But if you start talking about the deliberations of agenda items and sharing your opinions, it might start to open you up to that. Which, just sharing one person’s opinion isn’t likely to get you to quorum. But if that reporter talks to all the governing body members and shares their answers amongst each other, then we might be in trouble. Again, going to depend on the situation and I’d recommend reaching out to us for advice if you ever have something coming up and aren’t sure!”
One area of uncertainty in OGEC guidance is whether a news article that contains quotes from a quorum of councilors expressing their opinions about a pending item constitutes “sharing” their opinion with each other. Based on the information presented in OGEC’s trainings, such a scenario may raise concerns under the public meetings law. The potential violation would also apply to every member of council, even if they weren’t quoted in the article or even if they didn’t read the article. This highlights the need for further clarification on how third-party communications, such as media coverage, are treated under the rules governing serial communications.
Communications between members of council:
OGEC was asked whether a member of the city council may send communications to other members of council with reminders or general guidance concerning upcoming council meetings. OGEC responded by explaining prohibited serial communications and expressly recommending that the best practice is for members of council is to avoid private communications with each other concerning any matter that could come before council. OGEC wrote:
“Serial Communications
Serial communications among a quorum of the governing body are prohibited outside of a public meeting. The Commission recently adopted an administrative rule regarding serial communications. [OAR 199-050-0020]. Specifically, ‘a quorum of the members of a governing body shall not, outside of a meeting conducted in compliance with the Public Meetings Law, use a series of communications of any kind, directly or through intermediaries, for the purpose of the deliberating or deciding on any matter that is within the jurisdiction of the governing body.’ That includes in-person communications, telephone calls, videos, videoconferencing, written communications such as texts and emails, or other individuals to convey information among members. [OAR 199-050-0020(2)].
Further, the Attorney General’s Public Records and Meetings Manual advises that a governing body risks violating Public Meetings Law when members meet in private to discuss business, or exchange private communications about business, even if a quorum isn’t involved in any single communication. (AG Manual §II.C.1.c). A purely informational exchange among less than a quorum of Councilors could easily become a substantive discussion among more than a quorum, in violation of public meeting laws.
The best practice would be to avoid private communications among governing body members on any matter that could foreseeably be subject to the governing body’s decision or deliberation. (Emphasis added)
ORS 192.690(1)(m) provides that the Public Meetings Law does not apply to certain communications between or among members of a governing body, provided they are: ‘[p]urely factual or educational in nature and that convey no deliberation or decision on any matter that might reasonably come before the governing body; [n]ot related to any matter that, at any time, could reasonably be foreseen to come before the governing body for deliberation and decision; or [n]onsubstantive in nature, such as communication relating to scheduling, leaves of absence and other similar matters.’
So, in each instance that you are communicating with other City Councilors outside of a public meeting, you need to determine whether the content of your communications includes matters that could reasonably be foreseen to come before the City Council for decision or deliberation. If your communications involve matters within the City’s jurisdiction, to avoid the potential for violating Public Meetings Law, those discussions should take place in a public meeting. (Emphasis added)
Please note that the OGEC guidance quoted above doesn’t just discourage governing body members from expressing their opinions to each other outside of a public meeting, it discourages any private communication between members of the city council “[i]f your communications involve matters within the City’s jurisdiction.”
OGEC’s guidance recommends that members of governing bodies have no conversations with each other outside of a public meeting concerning pending agenda items or other items that could reasonably come before the governing body for decision. This guidance raises questions about long-standing practices, such as the Council President contacting individual council members to determine if they want to pull items from the consent agenda or have questions about upcoming agenda items.
OGEC is not saying that council members speaking with each other or expressing their opinion about City business with members of the public, a neighborhood association or the media necessarily violates Oregon public meetings law. Rather, OGEC is providing conservative guidance discouraging such communications because they have the potential to become prohibited serial communications. While OGEC is being understandably conservative in its guidance, governing body members are faced with a difficult choice of either complying with the guidance and avoiding offering their opinions on pending issues with others or engaging in transparent communication with each other and the public on City business and violating public meetings law.
Public officials who are members of governing bodies (this includes members of boards, commissions, and committees, not just city council members) are personally liable for any fines issued by OGEC. The City is legally prohibited from defending the public officials or paying these fines, and the City Attorney’s office is prohibited from giving public officials legal advice concerning these laws. Public officials are reliant on OGEC to provide guidance and interpretation of public meetings law and state ethics law.
Given this context, it is understandable that City governing body members are reluctant to engage in discussion with each other, the media or members of the public about city business expected to come before the governing body. While council members deeply want to engage openly with their constituents and value transparent communication, they are frustrated by OGEC’s guidance that constrains their ability to do so without risking violations of public meetings law.
The City continues to engage cooperatively with OGEC and the League of Cities to work through these issues to ensure that city councilors and all City governing body members can conduct their work on behalf of the community efficiently and transparently while complying with Oregon public meetings law.
BACKGROUND:
The Oregon Legislature, in 2023, passed HB 2805, authorizing the OGEC the authority to enforce Oregon’s Public Meetings Law and conduct rulemaking to clarify specific rules. After rulemaking that occurred in 2024, the OGEC proposed 16 rules in total, two of which were amendments to existing rules, found in Oregon Administrative Rule (OAR) Chapter 199-Division 40 (Executive Session) and Division 50 (Public Meetings). The OGEC voted to approve the final rules on September 20, 2024, and the rules became effective October 1, 2024.
Dan Atchison
City Attorney
Attachments:
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