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OREGON PUBLIC MEETINGS
LAW TABLE OF CONTENTS
The Public Meetings Law, found in Oregon Revised Statues (ORS) 192.610 to 192.690, was enacted by the Oregon legislature in 1973. It legally establishes the state policy that the public is entitled to know how public organizations operate. Almost all deliberations and decisions of public bodies are open to attendance by interested persons. The Public Meetings Law (meetings law or law) has been amended many times at subsequent legislative sessions. In 1993 the Oregon Government Standards and Practices Commission was granted authority to review complaints and impose civil penalties for violations of the executive sessions provisions. The purpose of this material is to summarize the major provisions that apply to Multnomah County. It borrows heavily from the Attorney General's Public Records and Meetings Manual (AGM) published September 15, 1997. The Oregon policy of open decision making is established by ORS 192.620: "The Oregon form of government requires an informed public aware of the deliberations and decisions of governing bodies and the information upon which such decisions were made. It is the intent of ORS 192.610 to 192.690 that decisions of governing bodies be arrived at openly." The Public Meetings Law applies not only to the state, but also the cities and counties despite any conflicts with their charters, ordinances or other rules. Cities, counties and other public bodies may impose greater requirements than those of the law by their charters, ordinances, administrative rules or bylaws. The Public Meetings Law applies to meetings of the "governing body of a public body." ORS 192.630(1). A "public body" is the state or local government council, board, commission, bureau, committee, subcommittee or advisory group. ORS 192.610(4). If two or more members of any public body have "the authority to make decisions for or recommendations to a public body on policy or administration," they are a "governing body" for purposes of the meetings law. ORS 192.610(3). Thus, the county Board of Commissioners (board), planning commission, and all citizen advisory commissions and committees are "governing bodies." A subcommittee of a commission or committee can also be a "governing body" if it is authorized to make decisions for or to advise the board, commission or committee. A committee or commission that has authority to make decisions for the board on "policy or administration" is a governing body. ORS 192.610(3). A subcommittee that has authority only to gather information for the full board, commission or committee is not a governing body. However, if the subcommittee is vested with the authority to take action on a county issue of policy or administration, then it is a governing body under the meetings law. An advisory committee, subcommittee, task force or other official group that has authority to make recommendations to the council on policy or administration also is a governing body. ORS 192.610(3). "Public body" does not include the chair or other individual county official. For example, an advisory committee appointed by the chair or department director is not a governing body subject to the law if the advisory committee reports only to the appointing official. However, if the individual official lacks authority to act on the advisory group's recommendations, and must pass those recommendations unchanged to the board, then the meetings law applies to the advisory group's meetings. If an advisory body is created by board ordinance, resolution or other action to advise the board, the fact that its members are all private citizens is irrelevant. The meetings law applies to private citizens, employees and others without decision-making authority when they serve on a group that is authorized to advise the board. The meetings law does not cover private bodies. A private body does not become subject
to the meetings law merely because it receives public funds, contracts with governmental
bodies or performs public services. C. MEETINGS SUBJECT TO THE LAW The Public Meetings Law defines a meeting as the convening of any of the "governing bodies" described above "for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter." ORS 192.610(5) (emphasis added) The meetings law does not define "Quorum". "Quorum" is defined by Multnomah County Charter section 3.30 as a majority of the board. Board rules are adopted by resolution and confirm that a quorum consists of three Commissioners. A gathering of less than a quorum is not a meeting under the meetings law. The law applies to committees, subcommittees and other advisory groups that are charged by the board with making recommendations. The recommendations must be the result of formal votes taken at meetings at which a quorum was present. Staff meetings are not subject to the meetings law because they are not "governing bodies" and quorums are not required. Similarly, the law does not apply to individuals who are authorized to make recommendations. However, if staff meets with a quorum of the board or a county commission, committee or subcommittee to discuss matters of "policy or administration," or to clarify a decision or direction for staff, the meeting is within the scope of the law. ORS 192.610(3) b. Meetings and Social Gatherings The Public Meetings Law applies to all county meetings for which a quorum is required to make a decision or deliberate toward a decision on any matter. Even meetings for the sole purpose of gathering information upon which to base a future decision or recommendation are covered. Hence, information gathering and investigative activities of a county body are subject to the law. If a quorum of the governing body gathers to discuss matters outside its jurisdiction, there is no "meeting" under the meetings law. Jurisdiction is determined by examining the authority granted to particular governing body and any ordinances, resolutions or directives governing that authority. The law does not cover purely social meetings of board or committee members. In Harris v. Nordquist, 96 Or 19 (1989), the court concluded that social gatherings at which school board members sometimes discussed "what's going on at the school" did not violate the meetings law. The purpose of the meeting determines if the law applies. However, a purpose to deliberate on any matter of policy may arise during a social gathering and lead to a violation. When a quorum is present, members should avoid any discussions of official business during social gatherings. Some citizens may see social gatherings as a subterfuge for avoiding the law. The Public Meetings Law expressly applies to telephonic conference calls and "other electronic communication" meetings of governing bodies. ORS 192.670(1). Notice and opportunity for public access must be provided when meetings are conducted by electronic means. For non-executive session meetings, the public must be provided at least one place to listen to the meeting by speakers or other devices. ORS 192.670(2). Special accommodations may be necessary to provide accessibility for persons with disabilities. The media must be provided such access for electronic executive sessions, unless the executive session is held under a statutory provision permitting it exclusion. Communications between and among council members on electronically linked personal computers may be subject to the meetings law. The definition of "meeting" under ORS 192.610(5) does not include on-site
inspections of projects or programs, and gatherings of national, regional or state
associations to which the public body or its members belong. The Public Meetings Law requires public notice of the time and place of meetings. This requirement applies to regular, special and emergency meetings. ORS 192.640. The public notice requirements apply to any "meetings" of the board, and committees, subcommittees and advisory committees. Regular meeting notice must be reasonably calculated to give actual notice of the time and place of the meeting "to interested persons including news media that have requested notice." ORS 192.640(1). Notice must be given to persons and media that have stated in writing that they wish to be notified of every meeting. If the meeting will consist of only an executive session, notice still must be given to members of the board, the general public and news media that have requested notice. The notice must also state the specific legal section authorizing the executive session. ORS 192.640(2). To help satisfy the accessibility requirements of ORS 192.639(5) and the Americans with Disabilities Act, the notice may provide the name of a person and telephone number (including TDD number) at the county to contact to request an interpreter for the hearing impaired or for other communication aids. The notice for each meeting must "include a list of the principal subjects anticipated to be considered at the meeting." ORS 192.640(1). The list should be specific enough to permit members of the public to recognize the matters in which they are interested; ordinarily this can be met by distribution of an agenda. The agenda need not go into detail about subjects scheduled for discussion or action, but should be sufficiently descriptive so interested persons can understand agenda topics. The meetings law does not require that every proposed item of business be described in the notice. The law requires a reasonable effort to inform the public and interested persons of the nature of the more important matters ("principal subjects") coming before the body. The county body may consider additional "principal subjects" arising too late to be included in the notice. The listing of principal subjects "shall not limit the ability of the governing body to consider additional subjects." ORS 192.640(1). The purpose of meeting notice is two-fold: general notice to the public at large and actual notices to specifically interested persons. a. Regularly Scheduled Meetings News media requesting notice must be given notice. Paid advertising is not required. If the county is aware of persons having a special interest in a particular action, those persons generally should be notified. This is not required if such notification would be unduly cumbersome or expensive. At least 24 hours' notice is required for special meetings. This may be accomplished by press releases or phone calls to the media. The county should make reasonable attempts to notify interested persons either by mail or telephone. News media requesting notice must be notified. An emergency meeting is a special meeting called on less than 24 hours' notice. An "actual emergency" must exist, and the minutes must describe the emergency justifying less than 24 hours' notice. ORS 192.640(3). The board must identify the reason the meeting could not be delayed to allow at least 24 hours' notice. The law requires that "such notice as is appropriate to the circumstances" be given for emergency meetings. The county must attempt to contact the media and other interested persons to inform them of the meeting. Generally, such contacts are made by telephone. The Oregon Court of Appeals stated in Oregon Association of Classified Employees v.
Salem-Keizer, 95 Or App 28 (1989) that it will closely scrutinize any claim of an
"actual emergency." The "emergency" must relate to the matter to be
discussed at the emergency meeting. An actual emergency on one matter does not
"justify a public body's emergency treatment of all business coming before it at
approximately the same time." 95 Or App at 32. Nor does the convenience or
inconvenience of commissioners provide justification for an emergency meeting. Pubic bodies should consider the probable public attendance and meet where there is sufficient room for the expected attendance. If the regular meeting room is adequate for usual attendance, the county body is probably not required to seek larger quarters for a meeting that unexpectedly attracts an overflow crowd. Meetings of the board and other county bodies must be held within the county. ORS 192.630(4). A joint meeting with two or more governing bodies must be held within the geographic boundaries of the area over which one of those bodies has jurisdiction, or at the nearest practical location. This does not apply in the case of an actual emergency requiring immediate action. Additionally, the law permits the board to hold "training sessions" outside the county, so long as no deliberation toward a decision are involved. ORS 192.630(4). The board and other county bodies may hold public meetings in private places such as
restaurants or residences, if fully adequate notice is given of the location so
interested persons may attend, and if fully adequate arrangements are made for
their convenient attendance. County bodies may not meet at a place where discrimination on
the basis of race, creed, color, sex, age, national origin or disability is practiced. ORS
192.630(3). The Americans with Disabilities Act, 42 USC 12131 et seq., prohibits
discrimination against persons with disabilities by public entities, and by places of
public accommodation for meeting sites owned by private entities.
ORS 192.630(5)(a) states: "It shall be considered discrimination on the basis of disability for a governing body of a public body to meet in a place inaccessible to the disabled, or, upon request of a hearing impaired person, to fail to make a good faith effort to have an interpreter for hearing impaired persons provided at a regularly scheduled meeting." This statute imposes two requirements. First, public meetings must be held in places
accessible to individuals with mobility and other impairments. Second, there must be a
good faith effort to provide an interpreter for hearing impaired persons. The meetings law is a public attendance law, not a public participation law. County body meetings are open to the public except for closed meetings specifically authorized. ORS 192.630. The right of public attendance guaranteed by the Public Meetings Law does not include the right to participate by public testimony or comment. Other statutes, rules, charters, ordinances, resolutions, and bylaws outside the
meetings law may require the council and other county bodies to hear public testimony or
comment on certain matters. For example, ORS 197.235, land use; ORS 294.40, budget; MCC
15.405, liquor licenses; MCC 25.266, adult care homes; and MCC 29.546, street standards
all provide for public hearings and comments. In circumstances where such requirements do
not apply, the board may conduct a meeting without any public participation. The chair or presiding officer of any meeting has inherent authority to keep order and to impose any reasonable restrictions necessary for the efficient and orderly conduct of a meeting. If public participation is part of the meeting, the presiding officer may regulate the order and length of appearances and limit appearances to presentations of relevant points. Any person who fails to comply with reasonable rules of conduct or who causes a disturbance may be asked or required to leave and upon failure to do so becomes a trespasser. State v. Marbet, 32 Or App 67 (1978). This authority extends to control over equipment such as cameras, tape recorders and
microphones, but only to the extent of reasonable regulation. Members of the public may
not be prohibited from unobtrusively recording the proceedings of a public meeting. The
criminal law prohibition against electronically recording conversations without the
consent of a participant does not apply to recording "public or semipublic meetings
such as hearing before government or quasi-government bodies." ORS 165.540(7)(a). All official actions by county bodies must be taken by public vote. The vote of each member must be recorded unless the body has 26 or more members. Even then, any member may require that the votes of each member be recorded. ORS 192.650(1)(c). Written ballots may be used, but each ballot must identify the member voting and the vote must be announced. Secret ballots are prohibited. The failure to record a vote is not itself a ground for reversing a decision. Without a
showing that the failure to record a vote was related to a manipulation of the vote, a
court will presume that public officials lawfully performed their duties. Gilmore v.
Board of Psychologist Examiners, 81 Or App 321, 324 (1986). ORS 192.650 requires that written minutes be taken at all meetings, except for executive sessions. Meeting minutes shall include at least the following: (1) Members present; (2) Motions, proposals, ordinances, resolutions, and orders and their disposition; (3) Results of all votes and the vote of each member by name; (4) The substance of any discussion on any matter; and (5) Subject to the Public Records Law (ORS 192.410 to 192.505), a reference to any document discussed at the meeting. This reference does not change the status of the document under the Public Records Law. Minutes need not be a verbatim transcript, and the meeting does not have to be recorded unless otherwise required by law. The minutes must be a true reflection of the matters discussed at the meeting and the views of the participants. ORS 192.650(1). The county must prepare minutes and have them available within a "reasonable time after the meeting." ORS 192.650(1). After minutes are prepared, they cannot be withheld from the public merely because they have not yet been approved. If minutes have not been approved, they may be so identified. Completed minutes are public records subject to disclosure under the Public Records Law, even if they have not been formally approved. Executive session minutes may be kept in the form of a tape recording rather than written minutes. ORS 192.650(2). No transcription of executive session minutes must be made unless otherwise required by law. If disclosure of material in the minutes would be inconsistent with the purpose of the executive session which was held under ORS 192.660, the material may be withheld from disclosure. ORS 192.650(2). The news media have no legal right of access to minutes or tapes of executive sessions
greater than that of the general public. E. Executive (Closed) Sessions County bodies may meet in executive sessions only in specified situations. ORS 192.660. An "executive session" is defined as "any meeting or part of a meeting of governing body that is closed to certain persons for deliberation on certain matters." ORS 192.610(2) (emphasis added). The board may hold an open session even when the law permits it to hold an executive session. The board is authorized to hold closed sessions regarding the following subjects: (1) Labor Negotiator Consultations The board may meet in executive session for deliberations with persons designated by it to conduct labor negotiations. ORS 192.660(1)(d). The media may be excluded from such sessions. ORS 192.660(3). (2) Real Property Transactions The board may go into executive session to deliberate with persons designated by it to negotiate real property transactions. ORS 192.660(1)(e). Real Property transactions are not limited to purchase or sale of real property, but may include long-term leases. This exemption does not include discussions of long-term space needs or general policies concerning lease sites. The executive session is limited to discussions of negotiation about specific real property and should not include discussion of long-term space needs or general policies concerning lease sites. (3) Legal Counsel Executive sessions may be used by the board to consult with counsel concerning legal rights and duties regarding current litigation or litigation likely to be filed. ORS 9192.660(1)(h). This authorization parallels the Public Records Law exemption for documents pertaining to litigation. ORS 192.501(1). The discussions may include substantive analysis of the legal merits, risks and ramifications of the litigation, as well as procedural options. Discussions in executive sessions may proceed even to the point at which the board reaches an informal consensus as to its course of action. ORS 192.660(4) guarantees that the results of any consensus will be made public because any final decision must be made in open session. Written legal advice from counsel is privileged information under ORS 40.225. It is exempt from disclosure under ORS 192.502(8) and a proper subject of an exempt session under ORS 192.660(1)(f). If appropriate steps are taken, an executive session may be used to discuss any legal matter of a confidential nature even without the existence or likelihood of litigation. (4) Exempt Public Records The board may meet in executive session to consider records "that are exempt by law from public inspection." ORS 192.660(1)(f). The Public Records Law, specifically ORS 192.496, 192.501 and 192.502, exempts records from public inspection. Unless a record is exempt under one this or some other law, the board may not consider the record in executive session under ORS 192.660(1)(f). (5) Labor Negotiations In 1997 the law was changed to require labor negotiations to be conducted by the board in open meetings unless both sides request negotiations in executive session. ORS 192.660(2). Note that county labor negotiations with employees' representatives are not subject to the meetings law at all if the negotiations are conducted for the county by individuals retained by the chair. In these circumstances, the public and the media cannot invoke the Public Meetings Law as a basis for attending negotiation sessions. Southwest Oregon Publishing Co v. Southwest Oregon Community College, 28 Or App 383 (1977). ORS 192.660(4) states: "No executive session may be held for the purpose of taking any final action or making any final decision." The board may reach a consensus in executive session. The purpose of the "final decision" requirement is to allow the public to know the results of the discussions. Taking a formal vote in open session satisfies that requirement, even if the public vote merely confirms a decision made informally in closed session. An executive session may be called during a regular, special or emergency meeting for which notice has already been given in accordance with ORS 192.649. The person presiding at the meeting must announce the statutory authority for the executive session before going into closed session. ORS 192.660(1). When a meeting that will be solely an executive session is called, the statutory authority for the executive session must be set forth in addition to notice requirements for any other meeting. The Public Meeting Law expressly provides that representatives of the news media shall be allowed to attend all executive sessions except for sessions involving deliberations with persons designated to carry on labor negotiations, Barker v. City of Portland, 67 Or App 23 (1984). As stated above, the board may consult with counsel about pending litigation or litigation likely to be filed. The board may exclude any member of the media from such a meeting if the member is a party to the litigation to be discussed or is an employee, agent or contractor of a new media organization that is a party to the litigation. ORS 192.660(4). The board may require that specified information that is the subject of the executive session not be disclosed. ORS 192.660(3). The presiding officer should make the specification. Absent a specification, the entire proceedings may be reported and the purpose of the executive session may be frustrated. The media may discuss the statutory grounds justifying the executive session. The meetings law contains no sanction to enforce the requirement that a news representative not disclose specified information. Penalties may raise freedom of press and speech questions. The Attorney General has concluded, " 'enforcement'. depends upon cooperation between public officials and the media." AGM 114. Reporters have no obligation to refrain from disclosing information obtained at an executive session if the council fails to specify that certain information is not for publication. Reporters may, but are not required to, inquire whether a board failure to specify was an oversight. Reporters are under no obligation to keep confidential any information the reporter independently gathers as the result of leads obtained in executive session. Reporters may disclose matters discussed in executive session which are not properly within the scope of announced statutory authorization of executive sessions. The board may request a news medium not to assign a particular representative to cover board meetings if the representative has irresponsibly violated a clearly valid nondisclosure requirement. That representative may be barred from future executive sessions because the meeting law purposes will be met by allowing attendance of another representative, and representatives from other news media. The board may permit others to attend executive sessions. Generally, executive sessions
are closed to all except commissioners, commissioners’ staff, county counsel, persons
reporting on the subject of the executive session or otherwise involved, and news media
representatives. However, the law does not prohibit the board from permitting other
persons to attend. 1. Injunctive or Declaratory Actions Anyone affected by a decision of a county body may file a lawsuit to require compliance with, or prevent violations of, the Public Meetings Law by members of the body. ORS 192.680(2). An action may be brought even before any decision affecting the plaintiff has been made. Suit may be brought by "representatives of the press," Barker v. City of Portland, 94 Or 762, 765-66 (1989), and "any person who might be affected by a decision that might be made." Harris v. Nordquist, 96 Or App 19 (1989). A suit may also be filed to determine whether the meetings law applied to meetings or decisions of the county. The suit must be brought in Multnomah County Circuit Court. ORS 192.680(1), Barker v. City of Portland, supra. Under ORS 192.680(5), the suit must be brought within 60 days of the date that the decision becomes a public record. If the county makes a decision in violation of the meetings law, ORS 192.680(1) permits it to reinstate the decision while in compliance with the law. A reinstated decision is effective from date of initial adoption. The county body should substantially reconsider the issue and not merely conduct a perfunctory reinstatement. If a committee makes a recommendation to the board that violates the meeting law, that violation does not make the board's subsequent decision on the recommendation void. By making its decision in full compliance with the meetings law, the board would cure the committee's prior meetings law violation. Reinstatement will not prevent a court from voiding a board decision "if the court finds that the violation was the result of intentional disregard of the law or willful misconduct by a quorum of the members of the governing body." In those circumstances, a court shall void the decision "unless other equitable relief is available." ORS 192.680(3). Where violations of the meetings law are unintentional or non-willful, voiding a decision is a permissible but not mandatory remedy. ORS 192.680(1). In any case, "the court may order such equitable relief as it deems appropriate in the circumstances." ORS 192.680(3). Courts will not lightly invalidate county body decisions. However, if a violation of the meetings law occurs in conjunction with another factor such as a conflict of interest violation, there may be a judicial voiding of the county body action. When a violation is found, the court may enjoin future violations or simply declare what the law requires. Future violations after the injunction may lead to contempt of court penalties for violating a court order. In the discretion of the court, a successful plaintiff may be awarded reasonable attorney fees. ORS 192.680(3); Smith v. School District No. 45, 63 Or App 685, rev den 295 Or 773 (1983). If the court finds a violation of the Public Meetings Law and determines that the violation was the result of willful misconduct by any member of the county body, that member is personally liable to the governing body for the amount of attorney fees paid by the body to a successful plaintiff. ORS 192.680(4). A 1993 amendment to the Public Meetings Law (ORS 192.685(1)) states that complaints that public officials have violated the executive session provisions of the law may be made to the Oregon Government Standards and Practices Commission for review and investigation under ORS 244.260. The commission may interview witnesses, review minutes and other records and may obtain other information pertaining to council executive sessions to determine if a violation occurred. The commission may impose civil penalties not to exceed $1,000 for violating any provision of ORS 192.660, the executive sessions provisions. However, if the violation occurred as a result of the board acting upon the advice of county counsel, a civil penalty may not be imposed. ORS 244.350(2). If the commission abandons a complaint at any time before the end of a contested case
hearing, the public official may be reimbursed for reasonable costs and attorney fees.
These would be paid by the county where the official has authority to act as part of a
county body that makes recommendations or decisions. ORS 192.685(3). A public official who
prevails following a contested case hearing shall, upon petition to the Marion County
Circuit Court, be awarded reasonable attorney fees at the conclusion of the contested case
or on appeal. ORS 244.400.
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