Public Meeting Comment Periods: Separating Fact from Fiction

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Public Meeting Comment Periods: Separating Fact from Fiction

by Ross M. Williamson

It likely comes as no surprise to readers of this newsletter that I can confirm an uptick in contentious public meetings over recent years.  These days, even small local governments are forced to deal with public meetings that become argumentative or worse.  A central area of tension is the public comment period when members of the public are invited to speak their minds to the governing body.

In this article, I will explore suggestions I have heard to help contain conflicts and reinforce respect.  Some of the ideas are unwise or unlawful and should be avoided.  Some of the ideas are available for incorporation into your own procedures.

Idea:   The governing body should allow audience comment throughout its meetings.

Response:  Unwise!  While it is legal to have a constant conversation with the public during a public meeting, doing so is very unwise.  Chairpersons, with the support of their colleagues on the governing body, should limit audience participation to agenda items that call for public participation.  To allow public comment on every agenda item throughout a meeting is a recipe for long meetings and public official dissatisfaction.

Idea:   Governing bodies are required to allow public comment on every agenda item.

Response:  Fiction.  Not every agenda item requires public comment.  For sure, certain agenda topics do require public input in the form of a public hearing or similar opportunity for public input (e.g., land use decisions, budget hearings, and fee increases).  Outside of the limited number of agenda topics that require public comment, there is no requirement for audience participation.

Idea:   The public must be allowed to provide public comment at both the start and the end of each meeting.

Response:  Not so.  Some governing bodies have a tradition of opening and closing meetings with public comment.  While this may be a tradition rooted in welcoming public input and community feedback, the tradition is not rooted in a legal requirement.  A better practice is to regularly schedule a single public comment period at a consistent place on each regular meeting agenda – whether that be towards the beginning or towards the end of the agenda.

Idea:   The public must be allowed to provide public comment at all public meetings.

Response:  Untrue.  Many governing bodies hold multiple meetings each month – one regular or general meeting and one or more special or work session meetings.  Special meetings and work session meetings are usually scheduled so that the governing body can work through special subjects or spend time debating a particular issue.  If the monthly regular meeting allows for public comment, there is no requirement that other special meetings also allow for public comment.  It is entirely appropriate for the audience to attend and watch the governing body do its work at a work session, but there is no requirement that the audience participate in the meeting.

Idea:   A local government can implement time limits for each speaker and the total public comment period.

Response:  Yes!  A public meeting is a “limited public forum” under our free speech legal standards.  This means that a public body can create and implement reasonable content-neutral regulations for the public’s participation.  Such a content-neutral regulation is enforcing time limits on each speaker and setting a total allotment of time for the public comment period.  For example, if created via policy and enforced even-handedly, a governing body can allot each speaker 3 minutes to speak and allocate 25 minutes for all speakers.

Idea:   A governing body can restrict the subjects discussed during public comment periods.

Response:  Super-duper dangerous!  While it is generally appropriate to guide speakers to relevant topics in a public hearing, for general public comment periods, a speaker should be allowed to speak their mind on any topic.  In recent years I have seen examples of governing bodies prohibiting public comment on topics such as personnel matters and subjects that the chairperson may feel are irrelevant.  However, such limits are likely content-based limitations that are unlawful under Oregon free speech standards.

Idea:   A governing body can require speaker registration prior to each meeting.

Response:  It’s a fact.  Within an adopted public meeting policy, a governing body can require reasonable pre-registration to participate in a public comment period.  While the governing body should not require each speaker to provide their full name and address, the governing body can require persons to sign-up for a speaking slot prior to the start of a meeting.

Idea:   A local government can require speakers to be at meetings in-person (no virtual comments).

Response:  False.  If a governing body allows the public to attend a public meeting virtually (see ORS 192.670 for more on this obligation), then the governing body should also take public comments from those attending virtually.  As noted above, pre-registration is appropriate for both in-person and virtual public comments, but the governing body should not forbid public comments from those attending virtually.

Idea:   The governing body chairperson can forbid audience members from causing disruptions.

Response:  True, within reason.  Audience members are allowed to observe public meetings and are allowed to speak during public comment periods.  But an audience member does not have the right to cause an actual disruption to a public meeting.  Keep in mind that chairpersons should be trained on using this authority so they can properly identify the nuances in lawfully enforcing this standard.  For example, certain audience conduct may be rude, uncivil, or even vulgar, but not rise to the level of an “actual disruption.”  Only an audience member that causes an actual disruption to the public meeting can be removed from the meeting.

Public Contracting Rules 2024

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Public Contracting Rules 2024

By: Carolyn H. Connelly

For those clients who have adopted our public contracting rule packet, the determination has been made – no public contracting rule update is required or will be issued for 2024!  As you likely know, a contracting agency that does not adopt its own rules is governed by the Attorney General’s model rules.  ORS 279A.065(5).  Contracting agencies that opt out of the AG’s model rules are required to review changes in public contracting laws to determine whether rule updates are needed to ensure compliance with Oregon’s Public Contracting Code (ORS 279A, 279B, and 279C.)

Our office most recently updated our rule packet in 2023.  If you have yet to adopt that update, you may want to give us a call in order to take advantage of authorized procurement threshold increases.  Direct award is now available for public improvement and goods and service contracts of no more than $25,000.  The intermediate procurement upper threshold similarly increased from $150,000 to $250,000 – but only for goods and service contracts.

Similar significant changes were not adopted during the legislature’s 2024 short session.  However, two changes may impact certain of your entity’s contract award and negotiation procedures over the next year.

  1. SB 1575:  Effective January 1, 2025, the legislature is prohibiting public entities from contractually requiring architects, engineers and surveyors to indemnify the public body for their work until liability has been established during adjudication. Essentially, this will eliminate our standard requirement for architects and engineers “to defend” the entity in the event of third-party claims associated with their work.  We believe indemnification and hold harmless requirements may remain – as long as they apply only after a judge allocates fault.  The bill does not apply to Design Build contracts.  This prohibition sunsets in 2035 – unless the industry successfully lobbies for an extension.  Architects and engineers (or at least their insurance carriers) are well aware of this provision, so be prepared to update your standard contract terms on and after January 1, 2025.
  2. HB 4006: Effective March 7, 2024, a contractor now has the option to provide a surety bond in lieu of retainage to ensure completion of a project to specifications.  As a result, your agency is required to accept a bond, when offered, unless your project manager can identify good cause to require retainage and provides that finding in writing to the contractor.  If or when you receive such a request during any public improvement project over the next year, we would be happy to help assess the sufficiency of the offered bond.

In the meantime, happy public contracting over the coming year!  Be assured, LGLG attorneys and staff are always available to assist with your entity’s procurement and contracting questions and required documentation.  Stay tuned –the legislature is likely to amend ORS 279A, 279B and/or 279C during its 2025 regular session.  If so – we will issue an updated 2025 public contracting rule packet next year.

Union Bargaining Preparation for 2025

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by Diana Moffat

What???? Our Collective Bargaining Agreement (CBA) doesn’t even expire until June 30, 2025!

Trust me. I hear you. But labor negotiations, just like so many other things continue to evolve. One of those evolutions has been the preparation, and associated time, needed by the employer prior to that first negotiation session with the union.

And then once you actually meet with the union to begin bargaining, the Collective Bargaining process can, unfortunately, take many, many months to complete. At best, you are looking at two to five months of getting things settled. At worst, much longer! There is a distinct advantage to completing the process, if at all possible, prior to the expiration of the current CBA.

The following are recommended:

Early preparation:

  • Have your management team, your supervisors and your labor lawyer review the CBA for needed changes such as needed adjustments to language for ambiguity, past grievances, updates to the law, etc.
  • If possible, begin a compensation overview. That might be as simple as assessing if you have some indicators that you are behind the “market” or engaging someone to do a full compensation review, in consultation with your labor lawyer.
  • Try to encourage the union to come to the table early – perhaps November, December, or at the latest early January. It helps to get those dates on the calendar early before folks start leaving for holiday time off.

Advantages to early resolution:

  • If you can resolve your negotiations prior to expiration, you are not faced with any type of retroactive pay issues. This can go a long way with employee morale for both your regular and payroll employees.
  • If you have anything less than fully funded insurance premiums, you are not faced with the danger-zone of figuring out what your “status quo” obligations are under the Public Employee’s Collective Bargaining Act.
  • You can use “early resolution” to your advantage in getting a settlement.
  • If faced with a situation of non-settlement, you can get to mediation and/or arbitration/impasse shortly after expiration. By July and August, the waiting time increases. There are only three mediators for the entire State of Oregon.

Timelines:

  • Does your CBA require notice to “open” bargaining? If so, you need to meet that deadline with a notice to the union that you want to bargain for a successor CBA.
  • The required 150-day bargaining period, under the Public Employee Collective Bargaining Act (PECBA), does not even begin until the initial proposals have been exchanged. Because of that, early scheduling can be a real advantage.
  • Development of your proposals should begin early on. Precise contract language is of utmost importance. The development of your proposals should be done in a very thought-out fashion, with input from supervisors to Council/Board members. This process takes time.

Developing your plan:

  • Now is the time to review your contract to identify what is working and what needs to be changed. Are there any needed legal updates? Has your labor counsel reviewed your CBA for ambiguous language? Are there any MOUs that need to be incorporated into the main CBA?
  • Now is the time to decide if you want to do a comparable analysis, in conformity with the PECBA, to assess your financial place within the market.
  • Now is the time to look at your budget projections for your limitations or wiggle room.
  • Now is the time to decide who will be your representative at the bargaining table and who will be on your bargaining team.
  • Do your City Council, County Commissioners, or Executive Board need to be advised on the process, the rules and laws that regulate Public Employee Collective Bargaining? Now is the time to schedule that training.

Current “hot” issues to consider:

  • Paid Leave Oregon (PLO) is the 10,000-pound elephant! PLO proposals have already appeared in dozens of unions’ bargaining proposals during 2024. You can be sure that the unions will continue to pursue them. There has been a lot of litigation at the ERB level. It is important for you to understand what you do and do not need to bargain with the union.
  • For your strike-permitted groups, don’t overlook HB 2930 needed modifications to your CBA language on discipline and grievance.
  • Insurance language is the still a concern for some employers. Have you reviewed the insurance language in your CBA to see how your contract stands up to potential future litigation if there are mid-term plan changes?
  • Have you reviewed your CPI index language? Many public sector employers have ambiguous CPI index language. Bargaining is the ideal time to clarify the index with specificity.

 

So, when you find yourself planning for the approach of Fall, let that remind you to begin preparing for upcoming bargaining. Preparation comes before success, even in the dictionary!

Executive Sessions: Tricks and Traps

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Executive Sessions: Tricks and Traps

by Carrie Connelly

 Oregon Public Meetings Laws and Executive Sessions

Oregon’s public meetings laws were enacted to ensure that the “decisions of governing bodies [are] arrived at openly.”  ORS 192.620.  As a result, your governing body’s authority to close portions of its meeting to members of the public (known as “executive sessions”) is limited.  As such, ORS 192.660 lists the only allowed executive sessions, each of which should be read very narrowly.  Even if your subject matter does fall within a permitted executive session, be wary – prerequisites may apply.  As not all limits and requirements are set out in ORS 192.660, this area of the law is easily misunderstood and frequently misapplied.

  1. How to Open and Close an Executive Session.

A governing body may hold an executive session only after the presiding officer has identified the statutory authorization for holding the executive session.  Making this required announcement for a stand-alone executive session or one held before the regular meeting can be tricky.  To meet all requirements, list planned executive sessions on the meeting agenda, along with other meeting topics.  The agenda should identify the specific statutory cite.  For example, if your entity plans to hold an executive session to discuss candidates for an open executive officer position, the agenda would list an executive session pursuant to ORS 192.660(2)(a), to consider the employment of a public officer, employee, staff member or individual agent.  The agenda need not provide further details, but should be published following your entity’s general practice for noticing all public meetings.

While legal, we recommend against adding an executive session after an agenda is issued, except in rare situations.  Some governing bodies always place an executive session item on the agenda as a place holder.  We recommend against this practice.  Only place executive sessions on your agendas for planned discussions.

During the meeting, before entering into executive session, announce the statutory basis for the executive session.  Chairs benefit from following a script when making such announcements.  The Oregon Attorney General’s Office has a sample script available on its website;

https://www.oregon.gov/oda/programs/NaturalResources/Documents/SWCDSessions/ExecutiveSessionScript.pdf.

We recommend that the Board Chair tailor this script for each executive session, print it out, and have it handy for all executive sessions.

An “executive session ends when the meeting ceases to be closed to the public.” If a decision is required as a result of the executive session discussion, or the public meeting will otherwise continue after the executive session, “the governing body must use reasonable means to give actual notice to interested persons that the meeting is again a public meeting.” OAR 199-040-0015(3).

This requirement is not met by announcing at the end of the executive session that the meeting is now open, then proceeding with a vote.  Legal options include announcing the specific time the public may return prior to the executive session.  Alternatively, it may be enough to open the meeting door and invite in waiting members of the public.

  1. Employment of Public Officers, Employees, and Agents.

ORS 192.660(2)(a) allows a governing body to meet in executive session to consider the hiring of an employee (usually a chief executive officer).  What this statute doesn’t say is that ORS 192.660(7)(d) sets prerequisites that must be satisfied before such an executive session may be held.  Before considering a hiring decision in executive session, your entity must: (1) advertise the vacancy; (2) adopt regular hiring practices; (3) provide the public an opportunity to comment on the potential hiring; and, (4) for chief executive officers, adopt hiring standards, criteria, and policy directives in open meetings with the opportunity for public comment.  In sum, an executive session under ORS 192.660(2)(a) may only be held if the local government first complies with ORS 192.660(7)(d).

To satisfy these requirements, your entity must first hold an open meeting prior to its executive session.  At this earlier public meeting, the Board can authorize staff to publish the vacancy, adopt a hiring process for the position (if your personnel policies do not already provide a process), and open a public hearing to allow the public to submit comments on the position and hiring process.  With these prerequisites addressed, the Board can then go into executive session to consider candidates and manage its hiring process.

Keep in mind, a governing body cannot discuss a prospective employee’s salary in executive session; that discussion and any related decision must occur in open session.  Along these lines, no final decision on the position may occur during executive session.  A final decision includes selecting a finalist but does not include identifying top candidates, or even designating a finalist with whom an entity representative will negotiate a contract (the final contract would then be brought back for the full governing body to approve in open session).

Last, note that this provision does not allow a Board to meet in executive session to fill a vacancy.  The executive session allowance applies to the hiring of employees, not the appointment of individuals to elected positions.

  1. Legal Counsel

ORS 192.660(2)(h) allows a governing body to hold an executive session to discuss, with its legal counsel, its “legal rights and duties . . . with regard to current litigation or litigation likely to be filed.”  Governing bodies are routinely tempted to stretch this exception to include discussions on any “legal matter.”  Prior to scheduling such an executive session, confirm that: (1) the discussion is directly with legal counsel, who will be present; (2) the discussion concerns your entity’s specific legal rights and duties; and (3) those rights and duties arise in the context of actual litigation in which your entity is either named or which is about to be filed.  ORS 192.660(2)(h) does not justify general discussion of your entity’s legal rights, risks, or liabilities, with or without your attorney’s presence.

Conclusion

Executive sessions can be useful tools to allow governing bodies to discuss confidential matters not yet appropriate for general public knowledge.  However, as illustrated above, executive sessions are authorized for only a limited number of reasons under limited circumstances.  Be sure that your board or council is familiar with the allowances and limitations of ORS 192.660 and related statutes and rules before calling an executive session.  When in doubt, check with legal counsel before noticing the meeting to ensure that all requirements are properly met.