Archive for category: Article

By Ross Williamson

This article discusses one area where governing bodies sometimes unintentionally slip up in maintaining strict compliance with Oregon public meetings law. Addressed here is the issue of quorum and how quorum impacts your governing body in ways that are not always obvious.

For clarification, this article does not discuss issues related to serial electronic written communications or intermediaries. Those concepts are related, but we will leave them for future discussion.

The scenario here is a common one for governing bodies (city councils, district boards, etc.): an issue before the governing body needs a little extra attention and study, so two members accept the task of diving into the issue and reporting back to the full body with recommendations for next steps. This is super helpful and a great use of time – the full body does not need to learn all the specifics and the two volunteers with interest in the issue can do their work without taking up the time of the full governing body. Plus, the two volunteers for this assignment do not constitute a quorum of the governing body. A true win-win.

Careful!!!

To get at the problems with this scenario, let’s start with some public meeting basics.

Local governments are “public bodies.” Oregon public meetings law creates the term “governing body,” which is defined as the “members of any public body that consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration.” (ORS 192.610(5).) Stated another way, governing bodies are groups of public officials that are authorized to make recommendations or decisions on behalf of the local government entity.

We know that the public meetings law applies to the primary policy-making body of the local government (e.g., city council or district board of directors) with the authority to make decisions on behalf of the government entity.  But the public meetings law also applies to “advisory bodies” – bodies formed by a public body to make recommendations to the public body on policy or administration. These concepts are codified by the Oregon Government Ethics Commission in OAR 199-050-0010(1), which provides:

“The Public Meetings Law applies to the following types of governing bodies:

(a) Decision-Making Bodies. A decision-making body is a body with the authority to make decisions for the public body on policy or administration. A body meets this standard if its decision-making authority includes the power to exercise governmental power and act on behalf of the public body.

(b) Advisory Bodies. An advisory body is a body with authority to make recommendations to a public body on policy or administration.”

With these concepts, we know as few as two people can form a committee and, if that committee of two people has “the authority to make decisions for or recommendations to a public body on policy or administration,” they are a “governing body” and subject to Oregon public meetings law. For example, a five-member fire district board of directors and a seven-member city council are both governing bodies. In addition, a two-member city council ad-hoc committee is itself a “governing body” if it is authorized to make recommendations back to the full city council.

Let’s revisit our scenario above. While the two-member ad-hoc committee in our scenario is not a quorum of the main five-member board, the ad-hoc committee is its own governing body. These two volunteers have been tasked to review information and report back to the full body with recommendations. As a result, the two members of the ad-hoc committee are the quorum for the “advisory body” and must meet in a public meeting to discuss their recommendations back to the full five-member board.

Once a quorum of an advisory body is present, any deliberation toward decisions, deliberation towards recommendations, or decision‑making itself must occur in compliance with the public meetings law. This includes providing notice, allowing public access, and keeping minutes.

Another word of caution is that advisory bodies can be made up of officials, citizens, or staff. As long as the advisory body is itself a governing body (making a recommendation to the public body), the fact that its members may all be private citizens is not relevant. Thus, the scope of the public meetings law extends even to citizens, employees, and others without any decision-making authority, when they serve on a group that is authorized to advise a public body.

Lastly, let’s quickly mention two important carve outs from public meetings law related to this advisory committee scenario. The first carve out is for fact-gathering committees. If the only authority for the body is to gather and provide information (e.g., making no recommendations), then the body is not an advisory body or governing body. The second carve out is that a “public body” does not include an individual official. As a result, an advisory committee that makes recommendations to an individual official (e.g., city manager, fire chief, special district chief executive), and does not otherwise exercise governmental authority, is not subject to the public meetings law.

By Truman Stone

Multiple (and confusing) methods of code enforcement?

Code enforcement typically is related to health and welfare, animals, garbage or other quality of life issues for the community.  After the governing body adopts those standards by legislation, it becomes the responsibility of staff to implement and enforce those codes.  Some of our clients have dedicated code enforcers, some house the function in the police or public works departments, and for some it is just one more responsibility of city management.

If your position includes code enforcement as a duty, you know that it is often easier to pass the code standards than it is to enforce the code standards.  Often the difficulty is the type of people who are unable to comply or are resistant to the code.  However, over the years I have observed that the code itself may make your job harder.

Code enforcement remedies come in several flavors (if you will).  These include: criminal remedies as a misdemeanor or violation; an administrative process with staff or the council; self-help or seizure; imposition of liens; and civil actions in municipal or circuit court.  Like all things in life, each have pros and cons, and no single method is perfect.  Often the code leaves these options to the discretion of the code enforcer without guidance or policies to help evaluate which method is most appropriate.

To the point of this article, because codes are typically adopted piecemeal over many years, the multiple enforcement methods are in the same ecosystem of the code and frequently include multiple cross references.  Those may include confusing or conflicting procedural protections and requirements.  Sometimes we see a client start one process and then switch to another process mid-stream, creating notice or procedural issues.  Sometimes we see multiple remedies pursued simultaneously with conflicting remedies and confusion over jurisdiction.  While most clients attempt progressive steps at enforcement, ratcheting up potential penalties and remedies, it may ultimately be most effective to start with the method that ensures success.

To avoid potential problems, here are some suggestions:

• • Review your code to analyze remedies and familiarize yourself with the options.
  • Check cross references for expired links or inconsistent provisions.
  • Clearly separate criminal remedies from civil remedies.
  • Eliminate remedy provisions which your municipality have never used or are unlikely to ever use.
  • Adopt code provisions or policies that prioritize methods of enforcement.
  • Develop flowcharts or checklists for each method to ensure clarity and compliance.
  • Consider completion of one method (or clear abandonment) as a requirement before attempting another method.
  • The more complexity you introduce into any system the more likely failure will occur in the system (See, Perrow, Charles. Normal Accidents: Living with High-Risk Technologies New York: Basic Books, 1984).
  • Contact your attorney early in the process to weigh pros and cons, and develop a plan to proceed.

It is important to keep in mind that code enforcement must not violate constitutional procedural and substantive due process.  It also must not impose an excessive fine.  Discussion of these areas is complex and beyond the scope of this article.

As noted earlier, code enforcement is difficult at its best because it involves people.  Don’t let an overly complex system make it more difficult.