One Year of Recreational Immunity

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Armand Resto-Spotts

Oregon’s “recreational immunity” law has been a hot topic in the local government world this past year.  After a July 2023 Court of Appeals decision, which interpreted and applied the statutory protection in a new way, the Oregon legislature recently passed a bill temporarily re-framing recreational immunity under law.  Although the bill’s language mostly reflects our traditional understanding of recreational immunity, there are a few important changes to note, specifically in how local governments manage recreational trails and areas going forward.

Recreational Immunity

Generally, under Oregon law (ORS 105.668, .682, .688), public and private landowners who make available their land, without charge, for recreational use by the public are protected from liability for injuries that a person may receive while recreating on that land.

Importantly, this “recreational immunity” protects local governments from lawsuits that may arise from the public’s use of trails, recreational spaces, or other public easements.  ORS 105.688 offers the primary protection for local governments that make public spaces available for recreational uses.  ORS 105.668 affords additional protections – namely for any use of a trail or structures within a trail in a public easement or unimproved right of way – which automatically apply to cities with a population of 500,000 or more, and may be opted into by cities with lesser population.

Fields v. Newport Changes

Last year, the Oregon Court of Appeals issued an opinion in Fields v. Newport that changed immediately available relief for cities, counties, and owners of private property.  The plaintiff was injured while walking her dog on a City-improved trail system that provided access to a non-city recreational area, i.e. a state beach.  Although the court affirmed the notion of recreational immunity, it remanded the case to the trial court for the jury to determine the particular question of whether the plaintiff’s primary purpose for using the improved trail was “recreational” in nature.  If so, then state law confers immunity on the city.  However, if the plaintiff’s purpose was not recreational – for example, only using the trail to access the beach – then the City may not be able to avail itself of immunity under state law, because the trail was improved and the statute only confers immunity to unimproved trails leading to recreational areas.

Despite the unique facts presented in the case, the Court of Appeals’ decision did throw into question the application of recreational immunity for public and private landowners – namely, whether immunity applies when the recreational user was not primarily “recreating” as defined by statute, but instead using the trail or area to access another location for recreation.  It also raised a common and related question of whether immunity should extend to an “improved” trail system.

Ultimately, the court’s interpretation of “recreational immunity” exposed public and private landowners to new risks, as it allowed for public users to argue that they were not “recreating,” by definition, and therefore not prohibited from bringing a lawsuit in the event of injury.

Senate Bill 1576 – Changes to Recreational Immunity Law

Given these new risks, the Newport decision garnered severe criticism from local governments, land trusts, and other landowners of recreational spaces.  CIS Oregon also issued advice expressing deep concern of the court’s opinion, and recommended that local governments consider closing trails until the legislature implemented a fix.

In response, due in part to local governments’ collective efforts, the Oregon legislature passed Senate Bill 1576, which sought to bolster and affirm recreational immunity.  The bill modified Oregon’s recreational immunity law in three important ways.

First, the bill adds to the definition of “recreational purposes,” which now extends to “walking, running, and bicycling,” in addition to other recreational activities listed in ORS 105.672.  Ideally, these new activities would capture a scenario like the one in Newport, where a public user is “walking” to access another recreational area.  Walking should now be treated as being undertaken with a “recreational purpose,” which is properly subject to immunity under ORS 105.682-.688.

Second, the bill extended recreational immunity to “improved” right of way that is designed or maintained to provide access for recreational purposes, subject to certain limitations.  This captures trails and areas where a local government has improved the land; however, the purpose of the improvements and right of way must still be for recreational purposes.

Third, the bill replaced “city” with “local government,” as specifically defined under ORS 174.116.  That latter statute defines “local government” as inclusive of cities, counties, and local service districts.  Importantly, then, the bill expressly affords recreational immunity under ORS 105.668 to special districts.

Interestingly, the bill has a sunset clause of January 2, 2026, meaning that these statutory changes are only effective until that time.  After that date, the language under ORS 105.668, .672, and 688 will revert to its original form.  Accordingly, this temporary fix to recreational immunity provides time for the legislature – and interested groups – to figure out a long-term solution to the problem raised by Newport – hopefully in the upcoming longer 2025 legislative session.

Next Steps for Local Governments

As a service provider, through management and maintenance of parks, trails, and other recreational areas, local governments need to be cognizant of these changes to recreational immunity.  Here are a few important reminders.

Foremost, all local governments that are responsible for recreational areas or trails must still actually maintain those areas and trails in a prudent, reasonable manner.  Recreational immunity does not protect against gross negligence or reckless, intentional misconduct.  Local governments should not abdicate their responsibility to maintain recreational facilities.

Second, recreational immunity is not the only defense for a city or local government to reduce liability risks.  For example, cities still have discretionary immunity, particularly in situations where a governing body has approved or adopted specific plans, like a park maintenance plan.  It is recommended that cities and local governments have appropriate policy-makers make decisions about what improvements, if any, are needed for recreational areas.

Finally, local governments with a population less than 500,000 have the option to “opt in” to the additional protections of ORS 105.668, which affords broader immunity than that provided generally to landowners under ORS 105.688.  Specifically, ORS 105.668 provides immunity against negligence claims from the use of a trail or structures (i.e., improvements in a trail) in an unimproved right of way or public easement.  If a local government wants to opt-in to the law, it may do so by adoption of an “ordinance, resolution, rule, order, or other regulation.”  It is recommended that in doing so, the local government establishes the intent to opt in and expressly referencing ORS 105.668’s provisions under which the city wants to extend immunity.

Ordinances, Resolutions, and Motions

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Truman Stone

This article is to provide a review of the fundamentals on how government bodies make formal decisions or exercise the government body’s power.  The first part outlines the options, with the second part providing some overview of the mechanics.

Unlike Federal and State systems, local governments typically do not have separation of powers.  For instance, a Fire District Board may in a single meeting act like a legislature by passing a fire code, or act as an executive branch by approving a contract.  The type of decision will dictate the form used.

When adopting generally applicable laws that would apply in future circumstances, the government body is acting like a legislature.  In that case, an ordinance is the proper vehicle.  You could compare this to a bill coming before the Oregon legislature.  Those ordinances or bills are often then compiled together into a code to make it easier to track and research the enactment.  Ordinances typically go into effect thirty (30) days after adoption, with notable exceptions.

Hiring employees, awarding a construction bid, instructing staff to work on things, or approving a contract are common examples of the government body acting in an executive capacity to run the government.  The more formal of these decisions are typically made by resolution and the less formal by motion, but both are types of the same action.  Resolutions or motions typically go into effect the day following adoption, or at a later specified date.

Clients frequently ask about the structure within the document itself.  Documents usually start with recitals which contain brief explanations of why the action is being taken.  This creates a legislative history for future reference.  These paragraphs often start with a “Whereas” meaning that the government body is finding this specific fact or circumstance exists that caused the government body to act.  Sometimes these facts are more general, and sometimes they are absolutely required by a statute to be found to exist, for instance a factual finding of an emergency.

Sometimes the findings are extensive, and it would create readability problems to list those all out in the main document.  For those occasions, you may include factual findings in exhibits to attach and make a reference to the exhibit in the body of the main document.  An example: “Wherefore, the City Council makes and adopts the findings set out in the attached Exhibit A, which is incorporated by this reference.”

Actions come at the bottom in the section that often starts with “Therefore.”  Because of the facts above, therefore, the following action is undertaken.  All the action happens here, not in the recitals.  If you expect someone to do something, it should be in this part of the document.

It is important to look to your city charter or enabling legislation (i.e. principle act) for specific requirements that may apply to your government.  We are always here to help, so if you are unsure, give us a call.

Serial Meetings and Oregon Government Ethics Commission Oversight

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Carrie Connelly

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.

Ordinances, Resolutions, Motions, and Orders

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Truman Stone

In law school, one of my professors encouraged students to review familiar rules (Rules of Civil Procedures or Trial Court Rules) no less than annually to avoid complacency in our knowledge and understanding of them. This is a practice that has served me well for thirty-one (31) years and provided me with a solid foundation of the fundamentals. Several times recently this fundamental knowledge has been put to good use as I have been asked to explain the different uses of motions, resolutions, orders, and ordinances. So, with my professor’s advice in mind, let us refresh our collective memories on some of the basics.

Unlike the federal and state systems, local governments typically do not have separation of powers. For instance, a city council may in a single council meeting act like a legislature, the executive branch, and quasi-judicially. The trick is knowing which hat the governing body has on at any one time. The type of action before you will give you a clue:

Legislature:

When adopting generally applicable laws that would apply in future circumstances, the sovereign body is acting as like a legislature. In that case, an ordinance is the proper vehicle. You can compare it to a bill before the Oregon legislature. Those ordinances or bills are often then complied together into a code to make it easier to track and research the enactment.

Executive:

The hiring of employees, awarding a construction bid, approving a contract, or simply providing instruction to staff, are common examples of a sovereign body acting in an executive capacity to run the government. The more formal of these decisions are typically made by resolution, and the less formal by motion, but all are types of the same action. Likely you will find that you pass more resolutions than ordinances and orders combined.

Judicial/Quasi-Judicial:

A judicial or quasi-judicial action is typically seen in areas like land use applications or code enforcement appeals. In these cases, the body sits in judgment of a unique factual issue and applies pre-existing standards (think ordinances or policies) to those facts to reach a result. That result is typically in the form of an order which explains how the issue was decided and either allows or disallows the action.

This is a general explanation, but as we all know, things in real life are not always so clear. For instance, the Oregon Local Budget Manual states that a budget may be passed by ordinance or resolution and gives this explanation:

Governing body resolution or ordinance:

A resolution is a formal expression of the opinion or will of an official body. An ordinance has the character of an enactment of law by an established authority. For purposes of the Local Budget Law, either a resolution or ordinance by the governing body at this stage of the budget process provides the legal authority to establish or dissolve funds, make appropriations for expenditures, adopt the budget, impose and categorize taxes, and all other legal actions pertaining to adopting the budget and making tax levies.

It is important to look to your city charter or enabling legislation for specific requirements that may apply to your entity. We are always here to help, so if you are unsure, give us a call.