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.