2022 Public Contracting Rules Update

/in , , /by

Carrie Connelly

From our Fall 2022 e-newsletter

Many of you have previously adopted our public contracting rule packet. As you know, our packet is based on the AG’s Model Rules, with changes that simplify and tailor those rules for our clients – plus add exemptions not available under the AG’s Rules. In the absence of locally adopted rules, your entity is governed solely by the AG’s Model Rules, which include state agency requirements not applicable to smaller, local governments. Over the years, we have recommended not only for your entity to adopt its own purchasing rules to replace the AG’s Model Rules, but to update them as required to accommodate legislative updates.

The 2021 legislature adopted several Oregon Public Contracting Code amendments. The AG is currently in the process of updating its model rules to reflect those legislative changes. Since the AG’s rules have yet to be issued, I have reviewed all statutory amendments and incorporated needed modifications into our public contracting rule packet. Pursuant to ORS 279A.065(6)(b), such a review is required for any entity which has adopted its own rules.

While some legislative amendments do not affect our clients, the following amendments authorize desirable updates:

1. The 2021 legislature increased the small procurement threshold for public improvement contracts from $5,000 to $10,000, which matches the threshold for goods and service contracts.

2. Public hearings are no longer necessarily required for public improvement contract exemptions. Rather, statewide published notice continues to be required, followed by a hearing only upon request.

3. For those of you who have not adopted rules since 2019, another helpful update allows your agency to use price information in architect/engineer consultant (i.e. Division 48) selection procedures.

As with our prior rule updates, we will provide an explanatory letter, updated rules, an adopting resolution, and accompanying findings for a flat fee. Entities which have adopted our public contracting rules since 2014 can update for $185, while those who have not previously purchased rules or updates since 2014 can purchase a full packet for $725.

Please contact Carrie Connelly (chc@localgovtlaw.com) or Kim Dahlgren (kimd@localgovtlaw.com) if your entity wishes to purchase a 2022 public contracting packet from our office.

Enforcing Policies Saves Money

/in /by

Christy Monson

Clients sometimes call us with questions regarding the discipline of employees for violation of sick leave or vacation policies. As public employers, your discipline options may be governed by a collective bargaining agreement, by personnel policies, or by both. However, before jumping to your discipline options, it is often useful to review these policies and agreements to see if your staff is properly applying them. You may have provisions in either your collective bargaining agreement or your personnel policies which allow you to effectively manage employee behavior without initiating discipline as your first option, such as: requiring a doctor’s note and disallowing the use of other paid time off once an employee’s sick leave allotment has been expended. Using these provisions correctly and applying them even-handedly may help you avoid discipline problems, costly grievances, and can control costs.

Allowing continued violations of your sick leave policies can cost a government thousands of dollars, can injure employee morale, and may jeopardize your government’s ability to enforce your rules later on. As just one example, in Nevada, Clark County tracked firefighters’ use of sick leave and found a pervasive pattern of abuse. The county then started enforcing its own sick leave policies and within one year the use of sick leave by the fire department fell by 57,000 hours. This change in supervisor and employee patterns saved the county millions of dollars.

If after reading this you review your personnel policies or your collective bargaining agreements and find that you’d like to change the way you are enforcing existing policies, you should contact your attorney before significantly changing any past practices. Furthermore, should you decide that individual employee discipline is warranted, we always recommend that you contact an attorney and your insurer before taking significant disciplinary action. In taking these simple steps, you enforce your policies, avoid labor strife, and save your government time and money.

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.