Did you think public meeting hazards couldn’t get stickier? Think again! The 2023 Legislature adopted House Bill (HB) 2805, which amends Oregon’s public meetings law in four ways.
In summary, HB 2805:
I. Adds new defined terms to ORS 192.610. For years, the term “meeting” has been defined as: “. . . the convening of a governing body of a public body for which a quorum is required in order to make a decision or deliberate toward a decision on any matter.” ORS 192.610(7)(a) (emphasis supplied). HB 2805 defines the two italicized terms used in this definition.
The term “convening” is now defined in ORS 192.610(1) as:
“(a) Gathering in a physical location;
(b) Using electronic, video, or telephonic technology to be able to communicate contemporaneously among participants;
(c) Using serial electronic written communication among participants; or
(d) Using an intermediary to communicate among participants.”
Subsections (a) and (b) describe classic public meetings—gathering in noticed public meetings, in person or virtually. Subsection (c) captures the term “serial meetings,” as previously developed in caselaw. Subsection (d) adds a “go-between” meeting: A person talking to and passing information between at least a quorum of council or board members. If such conversations involve a quorum of the public body who make or deliberate towards a decision, a public meeting is held – even if non-members of the governing body communicate directly with each other.
The term “deliberation” is now defined in ORS 192.610(3) as a:
“. . . discussion or communication that is part of a decision-making process.”
* Note that the definition of “meeting” uses the term “deliberate” not the newly defined term, “deliberation.”
II. Clarifies that public meetings law does not apply to communications between members of a governing body that: are purely factual or educational; not related to any matter that might reasonably come before the governing body; or nonsubstantive in nature.
Codifying preexisting case law, Oregon public meetings law now expressly excludes communications between or among members of a governing body that are:
A. “Purely factual or educational in nature and that convey no deliberation or decision on any matter that might reasonably come before the governing body;
B. Not related to any matter that, at any time, could be reasonably foreseen to come before the governing body for deliberation and decision; or
C. Nonsubstantive in nature, such as communication relating to scheduling, leaves of absence and other similar matters.”
III. Requires training on Oregon public meetings law for members of governing bodies of public bodies whose total expenditures exceed $1 million for a fiscal year.
As of January 1, 2024, HB 2805 requires members of governing bodies whose public bodies spend more than $1 million per fiscal year to attend an in-person or virtual public meetings training provided, or approved, by the Oregon Government Ethics Commission (OGEC). The training will be required once per term of office.
IV. Expanded Oregon Public Meeting Law Oversight by OGEC.
HB 2805 expands OGEC’s public meeting law oversight from only executive session violations to all public meeting violations. Grievances must first be filed with the public body within 30 days of the alleged public meeting violation. Upon receipt, the public body must:
A. Acknowledge and respond to the grievance in writing within 21 days and—
1. Deny the allegations, provide the correct facts, and explain why no violation occurred;
2. Admit that the allegations correct, but deny that those facts violate the public meetings law; or
3. Admit that the allegations are correct and admit a violation of the public meetings law. Such a response must then explain the steps the public body will take to cure the
violation, including but not limited to—
a. Rescinding the decision made in violation of the Oregon public meetings law; or
b. Holding a properly noticed and conducted public meeting within 45 days of the original decision and, in the meeting, state that
i. The original decision was made in violation of the Oregon public meetings law;
ii. Good cause exists for the public body to not rescind the decision; and
iii. The public body’s practices will be modified to avoid future violations.
B. When the public body sends its response, the public body must also send a copy of the written grievance and its response to OGEC.
If OGEC finds that a member of a governing body failed to attend a required training or investigates a public meeting law violation allegation and finds that a violation occurred, the responsible member(s) of the governing body may be assessed a civil penalty of up to $1,000. Such civil penalties are now expressly personal to violator(s); a governing body is expressly prohibited from paying or indemnifying the fine.
Takeaways: Do not risk OGEC civil penalties. Be sure to: (1) attend required public meeting trainings; and (2) call your attorney with any questions.