From our February 2017 e-newsletter
The Oregon Supreme Court recently released its opinion in the public meetings law case, Handy v. Lane County, 360 Or 605 (2016), which reversed the Court of Appeals, in part. However, the Supreme Court did not address “serial meetings” in its decision. As such, the practical effect of the Supreme Court’s decision is that members of governing bodies should still avoid serial meetings as if the Court of Appeals’ decision is still good law.
To back up, Oregon’s public meetings law provides that a quorum of a public entity’s governing body “may not meet in private for the purpose of deciding on or deliberating toward a decision. . . .” ORS 192.630(2).
In 2012, a quorum of Lane County Commissioners communicated via email and telephone regarding a public records request, but only two were talking directly at any one time. Commissioner Rob Handy filed suit alleging a violation of Oregon’s public meetings laws. The trial court dismissed the suit but the case was appealed to the Court of Appeals. There, the central issue was whether serial meetings (a series of one-on-one communications among a quorum of a governing body either directly or through an intermediary) can violate Oregon’s prohibition on private meetings. The Court of Appeals held that private serial communications among members who constitute a quorum of a governing body do violate Oregon’s public meetings laws when conducted for the purpose of deliberation or decision-making.
The case was appealed to the Oregon Supreme Court, which released its decision in November of 2016. In its opinion, the Supreme Court reversed the Court of Appeals, but on other grounds. The Court never decided whether serial meetings can violate Oregon’s public meetings laws.
Because the Supreme Court did not address the issue of serial meetings, I caution you not to disregard the Court of Appeals decision. The Supreme Court did reverse the Court of Appeals. Thus, technically, the Court of Appeals’ holding that serial meetings can violate Oregon public meetings laws is no longer mandatory authority for lower courts to follow. However, if the same or similar facts are presented to the Court of Appeals, it’s likely to issue the same decision. Therefore, local governments should continue to operate as if serial meetings can violate Oregon’s public meetings laws (which is essentially how we’ve advised our clients all along).
To avoid liability we recommend that governing bodies:
- Avoid replying to emails when government business information is shared via email. One-way sharing of information regarding agenda topics, meeting availability, and other administrative items is permitted, but back and forth conversations between governing body members through email should be avoided.
- Avoid conversations (in person or via email) between council/board members where the views of fellow members are shared. One-on-one conversations are still permitted as long as the views or thoughts of other members are not shared during those conversations. The time, place, or manner of conversations does not matter so much as the number of members involved (a quorum) and the items discussed (government business).
- Avoid sharing opinions or views on items that the governing body would need to vote on via social internet sites, email or its social gatherings where other members of your governing body may participate. Sharing thoughts, facts, information, or preferences on matters on which the governing body is working on should be aired publicly, but during the course of a properly noticed public meeting.