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November 01, 2023 Feature

Oregon Modernizes Public Meetings Laws

Tyler Mills

Oregon had not changed its public meeting laws in decades until House Bill 2805 (2023) was enacted. The definition of the types of meetings subject to the laws hasn’t been updated since the 1970s. Oregon statutes allow the public to file complaints for violating public meeting laws, yet the format for such complaints has largely been undefined, and the scope of review is minimal. HB 2805 attempts to modernize public meeting laws and adds accountability through a standardized grievance process.

Oregon laws governing public meetings are outdated in how governing bodies communicate due to increased reliance upon technology in place of in-person meetings. Convening via telephone, video, emails, and texts did not constitute a quorum. HB 2805 updates the definitions listed in ORS 192.610 such that convening a public meeting now includes using those means of communicating contemporaneously among participants, including texting or emailing. The statute now defines deliberation as discussion or communication that is part of decision-making.

Next, the law expands the types of meetings subject to the statute. HB 2805 requires that all governing body members subject to the laws attend training on best practices to comply with the statute. The training is to educate them about the expanded potential to convene a meeting and how to investigate complaints brought for alleged violations properly. No significant operational changes will be required for many cities, as these amendments are meant to catch up to best practices already in use. Many cities already apply the laws to meetings convened via electronic means. The League of Oregon Cities has been advising members that the best practice is to treat texts and emails as creating a quorum like an in-person meeting. State governing bodies are specifically excluded from training but not exempt from the updated definitions of convening. HB2805’s applicability to state governing bodies may be challenged if, for example, a quorum exists when counting participants in emails attempting to determine where the votes stand before action on legislation.

The New Grievance Process HB 2805(5) and (6) detail the process for filing complaints for violations of public meeting laws with the governing body alleged to have committed the violation. Previously, no method existed for governing bodies to investigate claims uniformly. The new law requires all subject governing bodies to adhere to the same process within the same timeframe. Any person who believes a governing body acted in violation may file a written grievance with that body within 30 days of the alleged action, describing the relevant facts and circumstances. The governing body must return a written response to the complainant that acknowledges the grievance and that addresses it in one of three ways: It may (1) deny the facts and circumstances alleged accurately depict the conduct of the body and set forth their facts; or, 2) it may admit the facts and circumstances are accurate but do not amount to a violation of any law; or, (3) it may admit that the conduct violated the law and set forth the steps the body will take to remedy the violation. A non-exhaustive list of remedies includes rescinding the decision or conducting a public meeting that maintains the decision but modifies the body’s practices so that no future violations occur. Any decision rendered by the governing body is filed with and subject to review by the Oregon Governmental Ethics Commission (“OGEC”).

When there is a failure to comply with a particular process, OGEC will have all the material information necessary to determine the proper resolution. At the same time, creating a new grievance process under HB 2805 creates a new barrier for petitioners by failing to include a provision for attorney fees. HB 2805(8) now excludes OGEC-reviewed complaints from recovery of attorneys’ fees. Under this new section, a party must file a grievance as a court complaint. If the party prevails, the party may not recover the prevailing party attorney’s fees. Petitioners must bear fees and costs entirely out of pocket. It remains to be seen whether this hurdle will have a chilling effect on the number of grievances brought under these statutes.

HB 2805(6) significantly expands the OGEC’s oversight of public meeting laws with the ability to hear complaints of alleged violations directly. OGEC’s former authority was limited to alleged violations of executive session rules under ORS 192.660. HB 2805 expands OGEC’s authority to allow it to hear complaints for public meeting law violations, ORS 192.610 to 192.690. This expanded OGEC authority does not replace governing bodies’ jurisdiction to hear and adjudicate complaints against their members. OGEC now will operate like a court of appeals. OGEC may hear only those complaints arising from a governing body’s denial of a violation, inadequately curing a violation, or failing to respond within the statutory timeframe. HB 2805(6) requires that the complainant submit documentation of their actions during the process laid out in HB 2805(5) to OGEC, in addition to the mandate to governing bodies to submit all grievances and responses. Appeal of an OGEC decision must follow the state Administrative Procedures Act.

HB 2805 seems to be a positive for accountability. OGEC is ostensibly a neutral body that reviews the record and renders judgments absent the bias inherent when a self-governing body reviews its action. The new process presents a more significant entry barrier for third parties seeking to hold local governing bodies to account. OGEC acting as an appellate body may prolong a final resolution, which may compare favorably to seeking resolution in state courts. The attorney fees provision for OGEC review remains unilateral: only the public official against whom the complaint was filed may recover prevailing fees and costs, not a prevailing private party complainant.

HB 2805 updates the law to match the actions of governing bodies in today’s world. The amendments allow local governing bodies to hear and address complaints directly versus no clear recourse for the complainant or the governing body outside of a lawsuit. The new, mandatory complaint process without a prevailing party provision may prove too costly for individuals and hinder holding officials accountable. Time will tell if direct complaints to governing bodies with appeals to OGEC will successfully streamline the complaint process or if the lack of a prevailing parties provision suppresses valid complaints.

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Tyler Mills

Tomasi Bragar DuBay, Portland, Oregon

Tyler Mills has worked at Tomasi Bragar DuBay since February 2023. Before Tomasi Bragar DuBay, he worked for PacifiCorp as a Right-of-Way Specialist, focused on easements. Tyler graduated from Lewis & Clark Law School with a Certificate in Environmental and Natural Resources Law in 2021. He is also a member of the Oregon State Bar.