For those practicing in the land use field, there is always a concern about how decisions get made and, in particular, what communication occurs behind closed doors. The Oregon Public Meetings Law is clear that all decisions must be made in a public meeting, but public officials may sometimes meet in groups of less than a quorum to discuss their perspectives. The Court of Appeals issued a decision last month that will require local governments to reconsider such conversations.
In Handy v. Lane County, 274 Or App 644 (2015), a former Lane County Commissioner challenged the method by which Lane County handled a public records request. The plaintiff had sent a letter to a local resident soliciting funds. That resident forwarded the solicitation letter to the County District Attorney, who forwarded it to the County Administrator. Several media outlets then requested copies of the solicitation letter. The County Administrator then had a series of communications, including via the telephone and e-mails, with three members of the five-member Commission. Subsequently, the Commission held an emergency meeting at which the same three members were the only commissioners present, and discussed the letter and potential County liability; they ultimately decided to release the letter as a public record.
The plaintiff – the party who wrote the letter – sued the county for violating the public meetings law, arguing that the County Commission’s three members deliberated towards a decision in the series of e-mails and telephone calls. The County argued that, at no time were all three members present in one location nor did all three members communicate with each other, except as to scheduling the emergency meeting and, therefore, there could be no violation. The Court agreed that the discussion of scheduling a meeting did not amount to “deliberations” such that the Commission violated the public meetings law, but did hold that serial meetings could constitute a meeting for purposes of the Public Meetings Law:
“In short, the text, structure, context, purpose, and history of the Public Meetings Law indicate that the requirement that [all decisions must be made in a public meeting] contemplates something more than just a contemporaneous gathering of a quorum. A series of discussions may rise to the level of prohibited ‘deliberation’ or ‘decision;’ the determinative factors are whether a sufficient number of officials are involved, what they discuss, and the purpose for which they discuss it—not the time, place, or manner of their communications.” 274 Or 664 – 65.
The court explicitly noted that it was at a very early stage in the particular litigation, so the court was required to take the allegations at face value, but they were sufficient to state a claim.
This decision should be a warning to the governing bodies of all public entities to be careful about the manner in which they discuss matters outside of formal meetings.
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