Public Records Retention

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Public Records Retention

By Lori Cooper

Oregon law states that Oregon public bodies “have a responsibility to ensure orderly retention and destruction of all public records, whether current or noncurrent, and to ensure the preservation of public records of value for administrative, legal and research purposes.”

All public bodies are subject to recordkeeping requirements established by state and federal laws. Reliable, authentic, complete records help provide evidence for a public body’s decision-making and serve as primary vehicles for demonstrating compliance with policies and laws, preserving institutional memory, and promoting business continuity.

Best practices for complying with record retention requirements include following established records retention schedules, designating a Records Manager, and ensuring secure destruction of records when they are no longer needed.

Here’s a more detailed breakdown of best practices:

  1. Follow Established Records Retention Schedules:
  • The Oregon Secretary of State provides records retention schedules (both general and special) for various public bodies. These schedules outline how long specific types of records must be retained before they can be destroyed or transferred to the State Archives.
  • Public bodies must follow these schedules when determining retention periods.
  1. Designate a Records Manager:
  • Public bodies should designate someone to handle records management.
  1. Ensure Secure Destruction of Records:
  • For paper records, secure shredding is recommended.
  • For electronic records, ensure data is irretrievable.
  • Maintain a log of destroyed records, including document titles, date range, and destruction date.
  1. Public Records Law Compliance:
  • The Oregon Public Records Law (ORS 192.410) requires public bodies to preserve public records regardless of physical form, including electronic records.
  • Public bodies must maintain and preserve records in compliance with this law.
  • Keep current with records destruction schedules – records retained beyond their authorized retention period may be subject to public disclosure upon request, even if their retention was not required by law.
  1. Implement Policies and Procedures:
  • Develop and implement policies and procedures for managing and disposing of records.
  • These policies should outline how records will be created, maintained, accessed, and disposed of in accordance with state law and retention schedules.
  • Ensure that all communications, including those through social media, are captured and transferred to an agency-controlled medium for proper retention.
  1. Training and Resources:
  • The Oregon Secretary of State provides various training resources for records managers and other staff on public records law and best practices.
  • These resources can help public bodies ensure that they are complying with all applicable laws and regulations.
  1. Federal Grant Compliance:
  • Most federal grant agreements include records retention requirements which may be different than our Oregon requirements.
  • For each federal grant that includes records retention requirements, ensure that your records manager receives a copy so they can maintain compliance with the grant.

By following these best practices, your public body can ensure that it is properly managing its public records, complying with the Public Records Law, and maintaining transparency and accountability.

Call your friendly attorneys at the Local Government Law Group for help in ensuring that your entity is complying with records retention requirements or if you have any questions regarding what is required.

Labor Legislative Alert – What is SB 916 and Why Should You Care?

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Labor Legislative Alert

What is SB 916 and Why Should You Care?

By Diana Moffat

As of the writing of this newsletter alert, the Oregon legislature is still actively considering various legislative amendments and some new implementations that will directly impact your labor relations matters.

The biggest concern for our public sector employers, as it relates to labor negotiations, is SB 916. This bill has gone through a few changes, but is now pending House review on the version A-engrossed draft.

This Oregon Bill would give public sector employees, who are out on strike during a strike over benefits and wages, the ability to apply for and receive unemployment insurance benefits for a portion of their time while out on strike and away from work.

Senate Bill 916 passed by the bare minimum of 16 votes in the 30-member Senate chamber, with two Democrats voicing concerns that the legislation could harm cash-strapped cities and counties. That concern comes from the fact that many Oregon cities and counties are “direct pay” to the Employment Department for any approved unemployment benefits paid out by the Employment Department. This has been characterized as nothing less than a direct tax payer subsidy for striking workers.

Under the current law, rules and regulations (mostly under PECBA – ORS 243.650, et seq.) if a public sector strike-permitted group of employees goes out on strike, they are not eligible for unemployment compensation benefits. SB 916 would change that provision.

 

What’s Next With FEMA’s Pre-Implementation Compliance Measures (PICM)?

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by Armand Resto-Spotts

As many cities are aware, last year, the Federal Emergency Management Agency (FEMA) notified National Flood Insurance Program (NFIP) participating communities that certain “Pre-Implementation Compliance Measures” (PICM) must be implemented by December 1, 2024, to ensure compliance with the Endangered Species Act (ESA). Specifically, the PICM are intended to prevent “take” – or “harm” – of certain threatened and endangered species from permitted floodplain development.

FEMA provided three options for NFIP communities to select before December 1, 2024. In sum: 1) prohibit all new development within the floodplain; 2) evaluate impacts to the floodplain on a permit-by-permit basis, effectively requiring a habitat assessment for floodplain development permits to show what functions the floodplain in question serve to threatened or endangered species, and how the development would achieve “no net loss” to those functions; or 3) adopt FEMA’s 2024 Model Ordinance.

Since the December 1, 2024 deadline passed, we have seen NFIP communities throughout the state choose each of these different pathways in PICM integration. In contrast, other cities outright rejected FEMA’s PICM requirements, and instead adopted unique approaches, like requiring development applicants to affirm whether any “take” is likely from their proposal.

Model Ordinance and Code Amendments

Today, NFIP communities are working towards implementing their chosen PICM option. For those jurisdictions moving forward with the model ordinance, that ordinance must be fully adopted and in effect by July 31, 2025. Considering state and local requirements for notice and process, cities should begin this land use ordinance procedure no later than mid-February.

For those jurisdictions moving forward with permit-by-permit review, land use amendments are also likely required. Unless city code today authorizes imposition of FEMA’s new PICM standard – i.e., identifying floodplain functions and how the development would achieve a “no net loss” to those functions – cities will need to adopt minor code amendments to be able to require compliance with this new federal directive. FEMA and the Oregon Department of Land Conservation and Development (DLCD) have yet to provide any sample or template language that cities can reference for adoption under their floodplain ordinance, leaving NFIP communities to address this code authority question on their own.

If you are in this position, we recommend a few steps. First, review your entity’s current floodplain ordinance to ensure that it lacks sufficient authority to require this new “no net loss” assessment. Some older FEMA-approved ordinances actually include language requiring applications to comply with all applicable federal requirements, which may be enough to impose this new standard on applications for floodplain development. In most instances, however, our experience is that city codes today do not contemplate this new requirement. Those codes must be amended before applicants can be required to supply information required for a permit-by-permit review. We continue to monitor DLCD for publication of guidance or language that cities can use for said amendments.

In the interim, when permitting floodplain development, we recommend including disclaimer language. Such a disclaimer should notify the permittee of the change in federal requirements and law, and allocate responsibility for compliance to the applicant. This interim approach should provide at least some level of defense, if FEMA chooses to challenge any issued permit as violating the ESA.

If you have further questions about land use amendments for this PICM pathway or permit disclaimer language, please contact our office.

New Lawsuit May Pause PICM Integration

Notwithstanding those ongoing PICM integration concerns, when and how cities ultimately implement their PICM choice may be a moot point, given a recent lawsuit filed by the Oregonians for Floodplain Protection (OFP). Early this year, OFP sued FEMA, and other federal agencies, requesting declaratory and injunctive relief from the PICM requirements. Among the many arguments presented, OFP argued that FEMA failed to follow requisite rulemaking procedures under the Administrative Procedures Act before requiring NFIP communities to implement one of the PICM options. OFP filed for a preliminary injunction, which asks the court to halt FEMA from enforcing the PICM.

Although the federal district court has yet to hear arguments or render a decision on the requested injunction, the lawsuit highlights underlying legal concerns with FEMA’s approach to PICM integration. Taking a “wait-and-see” approach before adopting the model ordinance or code amendments to implement permit-by-permit review now makes practical sense. Ultimately, if the court agrees with OFP’s arguments and issues an injunction, cities can pause their ongoing PICM work.

The risk of avoiding PICM implementation remains very real – namely, FEMA’s ability to revoke NFIP coverage. However, the cost to adopt a new code or amend an existing code is not insignificant either. This is especially the case without any formal guidance on code language or applicable federal regulation for cities to rely upon when imposing this new “no net loss” standard. OFP’s lawsuit comes at a time of widespread uncertainty and confusion about how to address and implement FEMA’s PICM requirements lawfully and – as FEMA has required of planning jurisdictions – very quickly.

We will continue to monitor the PICM landscape. Our team is here to work with you in navigating this unique federal and local issue.

The Budget Process in Four Simple Steps

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by Mark Wolf

It is hard to believe that it is already the beginning of February and budget season is upon us! For many of you, you are already off and running. This article explains the budget process in four simple steps. It also serves as a reminder that ORS 192.670 requires governing bodies (to the extent reasonably possible) to make public meetings accessible by telephone, video, or other electronic means and to allow written testimony by email or other electronic means.

Budget Process in Four Simple Steps

If you have not already done so, the first step in the budget process is to appoint a budget officer. Typically, the budget officer is the chief executive officer (i.e., the fire chief or the city administrator), but your finance officer or even your attorney may function as the budget officer.

Step two is to review the composition of your Budget Committee. Your Budget Committee consists of the members of your governing body and an equal number of appointed electors. The appointed members of the Budget Committee may not be officers, agents, volunteers, or employees of your entity. If for some reason you cannot find enough electors for the Budget Committee, you may still move forward with the budget process. Just make sure that your minutes reflect the efforts you made to recruit citizen members.

Your third step is to make a copy of your proposed budget available for public review immediately after the budget officer releases it to the Budget Committee. Your budget officer must publish notice of the Budget Committee meeting, as well as a notice of the budget hearing held by your governing body.

Both the notice of your first Budget Committee meeting and the notice of your budget hearing can be published in one of four ways. The most common method of publication is to publish the notice in a newspaper of general circulation, at least 5 and not more than 30 days prior to the budget meeting or hearing. If you choose to publish in the paper, the notice of the Budget Committee meeting must be published twice. Notice of the budget hearing only needs to be published once. If your entity is located within Washington County, you must also send budget information to the County.

The notice of your budget hearing must include a summary of the budget approved by the Budget Committee. The Oregon Department of Revenue provides forms you can use to develop and publish your budget. You can find these forms by clicking on the following link and scrolling down to “Local budget”:

http://www.oregon.gov/DOR/forms/Pages/default.aspx.

The fourth step is to adopt the budget. Remember, your governing body has the ability to make changes to the Budget Committee’s recommended budget. New information introduced at the budget hearing should be carefully considered by the governing body prior to budget adoption. If a proposed change to the budget includes an increase in taxes, or more than a 10% increase in a fund, additional notice is required. Changes to the budget after adoption also generally require action by the governing body and sometimes require additional publications and public hearings. For this reason, all available information should be collected and considered during the budget process.

Your budget must be adopted on or before June 30.

Two Final Thoughts

First, it is very important that the Budget Committee approve any proposed taxes as part of its approval of the budget. If a tax election is scheduled for March or May (especially May), the Budget Committee should include the revenue from any anticipated additional tax authority in its approved budget. Act like the proposed tax election will pass and budget for it. If it fails, the governing body may reduce the budget. But if a Budget Committee fails to plan on the tax passing, you can run into timing issues as the governing body must publish a revised budget summary and hold a second hearing on the budget, which might prevent the tax from being certified prior to June 30.

Second, when thinking about your budget, consider which projects and purchases are planned for this upcoming year. Not only will this process assist you in projecting your entity’s expenditures and revenues, this level of planning will also allow you to provide the required notice to the Bureau of Labor and Industries (BOLI). State law requires that at least 30 days prior to budget adoption, your entity must submit to BOLI a “WH-118 form,” listing each public improvement your entity plans to fund in the upcoming budget period. For example, if you are planning to budget and use public funds to build a new fire station in the next year, you must file a form WH-118 with BOLI at least 30 days before your budget is adopted. Form WH-118 is available on BOLI’s website at:

http://www.oregon.gov/boli/WHD/PWR/docs/wh118.pdf.

As always, if you encounter any legal issues during your budget adoption cycle (or if you learn of information or receive additional revenue requiring a change in your adopted budget) please contact your legal counsel as early as possible. An ounce of prevention is worth a pound of cure. It is much more cost effective and efficient to consult with your legal counsel before a problem develops.