Thursday, December 20, 2007

Bend City Council Executive Sessions--Legal or Not?

This is a question that has been on my and many others minds for a long time: is the broad and secretive way the Bend City Council holds Executive Sessions completely legal under Oregon's Open Meetings Law?

Oregon Revised Statutes Chapter 192 — Records; Public Reports and Meetings contains the relevant law in paragraphs 192.610 to 192.690. The relevant paragraphs state:
192.610 Definitions for ORS 192.610 to 192.690.
As used in ORS 192.610 to 192.690:

(1) “Decision” means any determination, action, vote or final disposition upon a motion, proposal, resolution, order, ordinance or measure on which a vote of a governing body is required, at any meeting at which a quorum is present.

(2) “Executive session” means any meeting or part of a meeting of a governing body which is closed to certain persons for deliberation on certain matters.

(3) “Governing body” means the members of any public body which consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration.

(4) “Public body” means the state, any regional council, county, city or district, or any municipal or public corporation, or any board, department, commission, council, bureau, committee or subcommittee or advisory group or any other agency thereof.

(5) “Meeting” means the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter. “Meeting” does not include any on-site inspection of any project or program. “Meeting” also does not include the attendance of members of a governing body at any national, regional or state association to which the public body or the members belong. [1973 c.172 §2; 1979 c.644 §1]

192.640 Public notice required; special notice for executive sessions, special or emergency meetings.
(1) The governing body of a public body shall provide for and give public notice, reasonably calculated to give actual notice to interested persons including news media which have requested notice, of the time and place for holding regular meetings. The notice shall also include a list of the principal subjects anticipated to be considered at the meeting, but this requirement shall not limit the ability of a governing body to consider additional subjects.

(2) If an executive session only will be held, the notice shall be given to the members of the governing body, to the general public and to news media which have requested notice, stating the specific provision of law authorizing the executive session.

(3) No special meeting shall be held without at least 24 hours’ notice to the members of the governing body, the news media which have requested notice and the general public. In case of an actual emergency, a meeting may be held upon such notice as is appropriate to the circumstances, but the minutes for such a meeting shall describe the emergency justifying less than 24 hours’ notice. [1973 c.172 §4; 1979 c.644 §3; 1981 c.182 §1]

192.660 Executive sessions permitted on certain matters; procedures; news media representatives’ attendance; limits.
(1) ORS 192.610 to 192.690 do not prevent the governing body of a public body from holding executive session during a regular, special or emergency meeting, after the presiding officer has identified the authorization under ORS 192.610 to 192.690 for holding the executive session.

(2) The governing body of a public body may hold an executive session:

(a) To consider the employment of a public officer, employee, staff member or individual agent.

(b) To consider the dismissal or disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member or individual agent who does not request an open hearing.

(c) To consider matters pertaining to the function of the medical staff of a public hospital licensed pursuant to ORS 441.015 to 441.063, 441.085, 441.087 and 441.990 (3) including, but not limited to, all clinical committees, executive, credentials, utilization review, peer review committees and all other matters relating to medical competency in the hospital.

(d) To conduct deliberations with persons designated by the governing body to carry on labor negotiations.

(e) To conduct deliberations with persons designated by the governing body to negotiate real property transactions.

(f) To consider information or records that are exempt by law from public inspection.

(g) To consider preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations.

(h) To consult with counsel concerning the legal rights and duties of a public body with regard to current litigation or litigation likely to be filed.
(NOTE: there are more reasons listed but the specific wording the City Council uses is usually "Executive Session pursuant to ORS 192.660 (2) (a through h)")

Now let's review how the City Council notices Executive Sessions--they use a single sentence in notices of Regular Sessions or BURA Sessions that reads as follows:
Executive Session pursuant to ORS 192.660 (2) (a through h)
They also hold Executive Sessions after Regular Sessions, but before the Regular Session is adjourned, with no written notice. I personally witnessed this at the last two Council sessions I attended.

The specific wording used by Mayor Abernethy to announce the Executive Session is "The Council will now go into Executive Session pursuant to ORS 192.660 (2) (a through h) to discuss real estate matters." And fifteen to twenty people march into the conference room just off the Council Chambers. You can walk around the building and see them all in there through the window. I've been tempted to snap a picture of the scene.

Is this all legal?

The source regarded as the golden guide is the Oregon Attorney General's Public Records and Meetings Manual. Regarding notice of Executive Sessions, this manual states on B-6, in its Checklist for Executive Session, that the Council must:
Provide notice of an executive session in the same manner you give notice of a public meeting. The notice must cite the specific statutory provision(s) authorizing the executive session.

(snip of the list of reasons)

Announce that you are going into executive session pursuant to ORS 192.660 and cite the specific reason(s) and statute(s) that authorize the executive session for each subject to be discussed. See sample script on p. B-9. (NOTE: Emphasis in original)

Additionally, on A-4 we read:
Q. Must a notice be provided for a meeting that is exclusively an executive session?

A. Yes. The notice requirements are the same and must include statutory authority for the executive session.

Q. Is a meeting without proper notice an illegal meeting?

A. A meeting without notice violates the Public Meetings Law. See discussion of Enforcement of the Law.

And on page F-6, we see:
Letter of Advice(OP-6376), May 18, 1990

A governing body may meet in executive session to "conduct deliberations with persons designated by the governing body to negotiate real property transactions." ORS 192.660(1)(e). The apparent policy underlying this provision is to permit public bodies to protect their negotiating position in real estate transactions by keeping certain information confidential. This provision does not permit a governing body to discuss long-term space needs or general lease site selection policies in executive session.

So let's posit a few specific questions and I'll answer them as I read the relevant law:
1) Can the Council legally give such a broad statutory reason as "ORS 192.660 (2) (a through h)"?

NO. It must give a specific statute for each specific item discussed.

2) Can the Council not say what the specific items discussed are-can it legally state the broad line "real estate issues" when it announces it is going into Executive Session?

NO. The only "real estate issue" that can legally be discussed in executive session is specifically to "conduct deliberations with persons designated by the governing body to negotiate real property transactions". Presumably this limits discussions regarding anything else, including zoning, funding, DDA's, etc., with persons (like Ray Garzini or Juniper Ridge Partners) designated as such.

Also, all items discussed must be specifically enumerated, both in the public notice and in the announcement of going into Executive Session.

I will clear these questions up with a call to the Oregon Government Standards and Practices Commission. In fact, I'll review this entire blog entry with them and publish their answers to these questions.

And if the Council is disregarding the law, there are Enforcement provisions, including some that hold them personally liable and subject to financial penalties. That section is covered in ORS 192.680 to 192.695, which we will review as necessary. Right now I wish to clarify these points with the OGSP Commission and educate our councilors on the finer points of the laws they operate under.

And perhaps, with the help of my readers, shine a whole lot more sunlight on the whole Juniper Ridge process.


Anonymous said...

bruce, maybe you should call the police??

The only thing you can do is file a complaint with the State, all cities in Oregon, must follow the charter.

So, you have to send the info to the Oregon Attorney General, and file a formal complaint, that the city of bend is being bad.

Anonymous said...

Regarding today's SORE, HBM makes the assertion that the JRP deal in secret was ok, because it involves real estate.

HBM, always being the jokers ass, needs to understand that this is NOT what ORS says, its says that you can go into executive session for 'appraisal', there is NOT a generic exlcusion for 'real estate', hbm pulled that one out of his ass.

Secondly, HBM asserts that kuratek was not run out of town, and that there is NO negative in the bay area on him, this is BULLSHIT. There are dozens of complaints about how kuratek did business in San Mateo, and how he tried to steal 'bay meadows' a race track that was 100 years old, from the users, they won, kuratek LOST.

HBM, is a very lazy journalist.

bruce said...

Re: call the police...

I have contacted the Oregon Government Standards and Practices Commission and will follow up from there. I stated our concerns regarding the excessive use of broad Executive Sessions and pointed them at this blog and at Should get interesting in the near future.

Council members are personally liable for any illegal actions, and ignorance of the law is not a defense.

Anonymous said...

NO. The only "real estate issue" that can legally be discussed in executive session is specifically to "conduct deliberations with persons designated by the governing body to negotiate real property transactions".


Not to spoon feed you bruce, but the LS Agreement is well written by Schwabe, Williams, & Wyatt of PDX, lawfirm who just happens to run EDCO, which just happens to RUN BEND.

In that agreement they make clear that if a rat has light flashed on it you must say "This secret because the state of oregon says that real estate Appraisals can be secret".

That's it, end of story, the entire JR process was NOT a fucking REAL ESTATE APPRAISAL.

HBM, is LAZY TURD, the guy is a loser, he's been making minimum wage for over 20 years in Bend, he says "ALL real estate issues in Bend, are secret from the citizenry".

This is BULLSHIT. The ONLY time that a real-estate issue can be 'secret' is when its an APPRAISAL.

Now if you read the SWW LS agreement, you'll see that they suggest ALL CUNTS to say that ALL activity is "real estate appraisal".

Go to the bathroom, take a like "real estate appraisal".

Governor gets caught have sex with 13 year old girl "real estate appraisal".

City gives $15M to Les Schwab, ..."real estate appraisal".

HBM's mother kicks him out of the garage, where he's been living for twenty years "real estate appraisal".

Anonymous said...

Re-reading the HBM review today on Juniper-Ridge made me think about some names he dropped.

With regards to how the old boys in Bend get rich, and got cut out of the JR deal by Kuratek.

The names were Brooks, Old-Mill, and other big projects. Note that I posted the CRS guy who is claiming that JR land is the best deal in Bend, and will have the best ROI.

But note, that most land around JR, is owned of course by Hollern. Note also the guy who put together Old-Mill was financed by Les Schwab.

Also note that EVERY FUCKING THING that is done for HOLLERN is done by Hap-Taylor aka Knife-River aka Capell.

Then you get the Les Schwab infrastructure, Capell/Hap-Taylor gets the money, Les Schwab gets the goods, and City of Bend taxpayer gets the bill.

Note, that HBM makes it clear that this is how its always been in Bend, being a small town and all that, and that KURATEK was going to change this, but NOTE that KURATEK has changed fucking nothing.

The same people who always make money already have a done-deal on Juniper-Ridge, something that HBM failed to mention.

bruce said...

I don't mind if people make money, I just want it to be for the public good when it is public money. And to have everything transparent.

Hell, I think JR could be a great draw to the area, if 75% of it was industrial/commercial. It's that continuing slide towards more residential (like we need any more) that pisses me off.

And the University? That's a fucking pipe dream at present. If it gets too crowded on top of Awbrey Butte, then some ancillary campus buildings could be built in JR.

Anonymous said...

I have seen budgets allocated for Kuratek.

He's to be paid $2k/day, this goes back to 2005.

Are you saying that to date a single check has NEVER been given to Kuratek? That a single WIRE has never been placed in his account?

The design firm Cooper, that Kuratek is sub-contracting to do ALL the pretty pictures, they're not working for free, they have had to billed a million bucks by now. Your saying, they're working for free to date?? I don't think so.

Kuratek was approved back in 2005, and the meter is running, originally the deal was with Kuratek, then JR, then JRP, ... You need to get a list of checks cut by the city, or ask the finance department how these people are getting paid.

There is NO way in hell a BIG firm like Cooper, would have been working for free all these years, they have been getting paid.

bruce said...

Re: Are you saying that to date a single check has NEVER been given to Kuratek? That a single WIRE has never been placed in his account?

To quote the letter from the city:

"In response to requests 2 through 4, there have been no payments to Juniper Ridge Partners, no Contingency Removal Notice from Les Schwab, and no Notice of Alternate Phase 1 Purchase Price to Les Schwab from the City."

Anonymous said...

I did't ask if JRP got a check.

I asked if knife-river or kuratek got a check.

There are dozen's of pseudonyms used, by the city, look at the record of JR, every week they're calling Kuratek by a different name, the JRP didn't get consolidated until 2006 when kuratek formed an LLC.

bruce said...

Are you saying that to date a single check has NEVER been given to Kuratek? That a single WIRE has never been placed in his account?


I'll keep asking the question until you answer the question.

Your being as lazy as HBM, has Cooper ever gotten money?? Are you saying that they have worked for free for almost two years?

bruce said...

2007-064829 PDF TIF DOC TYPE: Deed CONSIDERATION: $3,671,236.80 DATE REC: 12/19/2007 4:09:42 PM

Here's a direct link to the deed.

bruce said...

Re: deed

Looks like they pulled the trigger. That's $7/sq. ft.

Time for another blog entry.

Good catch!