HomeMy WebLinkAbout2020 04 21 AIS Ethics, Public Meetings, and Public Records Training{00011522:1}
AGENDA ITEM SUMMARY Meeting Date: 4/20/2020
Meeting Type: Work Session Staff Contact/Dept.: Kristina Kraaz CAO
Staff Phone No: 541-744-4062
Estimated Time: 30 minutes S P R I N G F I E L D PLANNING COMMISSION Council Goals: Mandate
ITEM TITLE: PLANNING COMMISSION TRAINING: ETHICS, PUBLIC MEETINGS, AND
PUBLIC RECORDS
ACTION REQUESTED:
Participate in annual training from the City Attorney’s Office regarding Oregon
statutes and administrative rules for Government Ethics, Public Meetings, and Public Records
ISSUE
STATEMENT:
Members of the Springfield Planning Commission are public officials who are subject to the requirements of the Oregon Government Ethics Law, ORS Chapter 244. As a governing body of a public body, the Planning Commission and its members are subject to the Oregon Public Meetings Law, ORS 192.610 to 192.690 and the Oregon Public Records Law, ORS 192.410 to 192.505.
ATTACHMENTS: 1. Ethics, Public Meetings, and Public Records Training Manual
2. Springfield Planning Commission Ethics “Cheat-Sheet”
DISCUSSION/ FINANCIAL IMPACT:
Annually, the City Attorney’s Office provides an update and training for the Planning Commission on requirements of the Oregon Government Ethics Law,
Oregon Public Meetings Law, and Oregon Public Records Law. Specifically, the training will cover:
• Conflicts of Interest
• Use of Official Position for Financial Gain
• Receiving gifts as a public official
• Annual statement of economic interest
• Public meetings requirements
• Use of email as a public meetings and public records issue In addition, we will review legal guidance on online public meetings, provided by the Oregon League of Cities and the law firm Beery, Elser & Hammond, LLP. That guidance is available online at https://www.orcities.org/resources/reference /coronavirus-resources/covid-19-guidance-beh.
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SPRINGFIELD PLANNING COMMISSION
Ethics, Public Meetings, and Public Records Training
February 2019
Mary Bridget Smith, City Attorney
Kristina Schmunk Kraaz, Assistant City Attorney
Springfield City Attorney’s Office
225 Fifth Street
Springfield, OR 97477
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Table of Contents
I. WHAT ARE ETHICS? ........................................................................................ 1
II. OREGON ETHICS LAW .................................................................................... 1
A. Background. ................................................................................................. 1
B. Use or Attempted Use of Official Position. ...................................................... 1
1. Public Official ............................................................................................. 1
2. Relative ..................................................................................................... 1
3. Exceptions ................................................................................................. 2
C. Soliciting or Receiving Gifts ........................................................................... 2
1. Gifts .......................................................................................................... 2
2. Exceptions ................................................................................................. 2
D. Future Employment ...................................................................................... 4
E. Use of Confidential Information ..................................................................... 4
F. Offering Gifts ............................................................................................... 5
G. Representation Before Jurisdiction. ................................................................ 5
H. Actual and Potential Conflicts ........................................................................ 5
I. Choices and Responsibility ............................................................................ 5
J. Jurisdiction. .................................................................................................. 5
III. PLANNING COMMISSION ETHICS ....................................................................... 5
A. Bias ............................................................................................................. 6
B. Ex-Parte Contact .......................................................................................... 6
C. Conflicts of Interest ...................................................................................... 6
IV. TORT CLAIMS ................................................................................................. 7
A. “Will I Be Sued?” .......................................................................................... 7
B. History of Governmental Immunity ................................................................ 7
C. Oregon Tort Claims Act ................................................................................. 7
1. Immunity Waived ....................................................................................... 7
2. Actions Permitted ....................................................................................... 7
3. Remaining Limitations on Suit ..................................................................... 7
4. Immunities ................................................................................................ 7
5. Public Entity is Defendant ........................................................................... 8
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6. Discretionary Functions .............................................................................. 8
7. Defense Required ...................................................................................... 8
8. Defense not Required ................................................................................. 8
9. What to Do If You are Sued ........................................................................ 8
10. Litigation Avoidance Checklist for Planning Commission Members ................. 9
V. DEFAMATION ................................................................................................. 9
A. Defamation .................................................................................................. 9
B. Reputation ................................................................................................... 9
C. Affirmative Defense .................................................................................... 10
1. Privilege .................................................................................................. 10
2. Difference/Absolute/Conditional ................................................................ 10
3. Social Importance .................................................................................... 10
4. Case Law ................................................................................................. 10
VI. PUBLIC RECORDS & PUBLIC MEETINGS ......................................................... 11
A. Overarching Policy ...................................................................................... 11
1. Public Records Law .................................................................................. 11
2. Public Meetings Law ................................................................................. 11
B. Public Records Law ..................................................................................... 11
1. Emails ..................................................................................................... 12
2. Exemptions .............................................................................................. 12
C. Public Meetings Law ................................................................................... 12
1. Requirements .......................................................................................... 12
2. Subject of Meetings and “Social Gatherings” .............................................. 12
3. Public Meetings Via Email or Other Electronic Communication ..................... 12
4. Serial Communications ............................................................................. 13
VII. LEGISLATIVE VERSUS QUASI-JUDICIAL PROCESSES ....................................... 13
A. Which process applies. ................................................................................ 13
B. Legislative Process ...................................................................................... 13
C. Quasi-Judicial Process ................................................................................. 13
1. Procedural Requirements .......................................................................... 13
2. Decision .................................................................................................. 14
3. Findings .................................................................................................. 14
QUESTIONS? .......................................................................................................... 14
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I. WHAT ARE ETHICS?
A. “Ethics” are “rules of behavior based on ideas about what is morally good or
bad; a belief that something is very important.” Merriam-Webster Dictionary.
B. Oregon Ethics Law (Oregon Government Standards and Practices Statutes)
ORS Chapter 244: Legal ethics, not personal ethics - the bare minimum ethical
behavior required to comply with the law.
C. You are responsible for your own ethics. You are responsible for complying
with standards required by State of Oregon.
II. OREGON ETHICS LAW
A. Background. Oregon Revised Statute (ORS) Chapter 244 applies to a very
narrow set of activities. It addresses exclusively the concept of financial
disclosure, use of office for personal financial gain, conflicts of interest, and other areas
in which the employee, a relative, or business with which the employee is associated
might be affected financially by the employee’s public role.
There are other Oregon Statutes which regulate the behavior of public employees in a number of areas outside the jurisdiction of the Government Standards and Practices
Commission. These include campaign finance and campaign activities which are
regulated by the Secretary of State’s office; alleged criminal activity which would fall
under the jurisdiction of the Springfield Police or Lane County District Attorney; cases
involving employment related sexual harassment or discrimination against a protected
class are investigated by the Oregon Bureau of Labor and Industries.
B. Use or Attempted Use of Official Position. “...a public official may not
use or attempt to use official position or office to obtain financial gain or avoidance of
financial detriment for the public official, a relative or member of the household of the
public official, or any business with which the public official or a relative or member of
the household of the public official is associated, if the financial gain or avoidance of
financial detriment would not otherwise be available but for the public official’s holding
of the official position or office.” ORS 244.040(1).
1. Public Official. A “public official” is any person serving the State of
Oregon or any of its political subdivisions or any other public body of the state
as an elected official, appointed official, employee or agent, irrespective of
whether the person is compensated for the services. ORS 244.020(15).
2. Relative. A “relative” includes: The spouse, parent, stepparent, child,
sibling, stepsibling, son-in-law or daughter-in-law of the public official or of the
public official’s spouse; any individual for whom the public official has a legal
support obligation; any individual for whom the public official provides benefits
arising from the public official’s public employment or from whom the public
official receives benefits arising from that individual’s employment; or any
individual from whom the candidate receives benefits arising from that
individual’s employment. ORS 244.020(16).
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3. Exceptions. ORS 244.040(2) provides a list of financial benefits that
would not otherwise be available to public officials but for holding the position
as a public official. The following financial benefits are not prohibited and may
be accepted by a public official:
a. Official compensation.
b. Reimbursement of expenses.
c. Honoraria valued at $50 or less: “a payment or something of
economic value given to a public official in exchange for services upon
which custom or propriety prevents the setting of a price. Services
include, but are not limited to, speeches or other services rendered in connection with an event.” ORS 244.020(8), ORS 244.042(3)(a).
d. Unsolicited awards for professional achievement.
e. Exempt “gifts” (discussed below).
C. Soliciting or Receiving Gifts. No public official or candidate for office or a
relative of the public official or candidate shall solicit or receive, whether directly or
indirectly, during any calendar year, any gift or gifts with an aggregate value in excess
of $50 from any single source who could reasonably be known to have a legislative or
administrative interest. (ORS 244.025). A “legislative or administrative interest” is
an economic interest, distinct from the general public, in any matter subject to the
decision of the public official, or of the candidate if elected, in their official capacity.
1. Gifts. Under the Oregon Government Ethics Law, a “gift” is something
of economic value given to a public official or relative or member of the
household of the public official, without valuable consideration of equivalent
value (i.e. without paying for it) or given for less than required from others, and
which is not extended to others who are not public officials or their relatives/household members. Waiving debt or giving a service are also gifts.
2. Exceptions. ORS 244.020(6)(b) provides the following definitions of
items that are allowed as exclusions to the definition of a “gift,” including:
(A) Campaign contributions as defined in ORS 260.005.
(B) Gifts from relatives or members of the household of the public official
or candidate.
(C) An unsolicited token or award of appreciation in the form of a plaque,
trophy, desk item, wall memento or similar item, with a resale value
reasonably expected to be less than $25.
(D) Informational or program material, publications or subscriptions
related to the recipient's performance of official duties.
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(E) Admission provided to or the cost of food or beverage consumed by
a public official, a relative of the public official accompanying the public
official, a member of the household of the public official accompanying
the public official or a staff member of the public official accompanying
the public official, at a reception, meal or meeting held by an
organization when the public official represents... a local government as
defined in ORS 174.116.
(F) Reasonable expenses paid by any unit of the federal government, a
state or local government, a Native American tribe that is recognized by
federal law or formally acknowledged by a state, a membership
organization to which a public body as defined in ORS 174.109 pays
membership dues, or a not-for-profit corporation... for attendance at a
convention, fact-finding mission or trip, conference or other meeting if
the public official is scheduled to deliver a speech, make a presentation,
participate on a panel or represent... a local government as defined in ORS 174.116.
(G) Contributions made to a legal expense trust fund established under
ORS 244.209 for the benefit of the public official.
(H) Reasonable food, travel or lodging expenses provided to a public
official, a relative of the public official accompanying the public official, a
member of the household of the public official accompanying the public
official or a staff member of the public official accompanying the public
official, when the public official is representing ... a local government as
defined in ORS 174.116.
(i) On an officially sanctioned trade-promotion or fact-finding
mission; or
(ii) In officially designated negotiations, or economic
development activities, where receipt of the expenses is
approved in advance.
(J) Waiver or discount of registration expenses or materials provided to
a public official or candidate at a continuing education event that the
public official or candidate may attend to satisfy a professional licensing
requirement.
(K) Expenses provided by one public official to another public official for travel inside this state to or from an event that bears a relationship to the
receiving public official's office and at which the official participates in an
official capacity.
(L) Food or beverage consumed by a public official or candidate at a
reception where the food or beverage is provided as an incidental part of
the reception and no cost is placed on the food or beverage.
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(M) Entertainment provided to a public official or candidate or a relative
or member of the household of the public official or candidate that is
incidental to the main purpose of another event.
(N) Entertainment provided to a public official or a relative or member of
the household of the public official where the public official is acting in an
official capacity while representing ... a local government as defined in
ORS 174.116.
(O) Anything of economic value offered to or solicited or received by a
public official or candidate, or a relative or member of the household of
the public official or candidate:
(i) As part of the usual and customary practice of the person's
private business, or the person's employment or position as a
volunteer with a private business, corporation, partnership, proprietorship, firm, enterprise, franchise, association,
organization, not-for-profit corporation or other legal entity
operated for economic value; and
(ii) That bears no relationship to the public official's or
candidate's holding of, or candidacy for, the official position or
public office.
3. Public officials and their relatives may accept gifts of any amount from
individuals with no administrative or legislative interest in the public body with
which the official serves. (The millionaire on your doorstep; not your
developer friend who has, or will have, several projects ongoing in the City
development process requiring PC decisions.)
4. How is an official to know the value of a gift?
a. A public official should make every effort to determine the value
of any gift provided by individuals with an administrative or legislative
interest in the area of the official’s public responsibility.
b. Because the giving, as well as receiving, of gifts is regulated,
both donor and recipient should be aware of the statutes and should
keep track of the value of any gifts. When in doubt, ask.
D. Future Employment. No public official shall solicit or receive, either directly
or indirectly, and no person shall offer or give to any public official any pledge or
promise of future employment, based on any understanding that such public official’s
vote, official action or judgment would be influenced thereby. ORS 244.040(3).
E. Use of Confidential Information. No public official shall attempt to
further or further the personal gain of the public official through the use of confidential
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information gained in the course of or by reason of the official position or activities of
the public official in any way. ORS 244.040(4).
F. Offering Gifts. A person who has a legislative or administrative interest may
not offer to the public official or a relative or member of the household of the public
official any gift or gifts with an aggregate value in excess of $50 during a calendar year.
ORS 244.025(2).
G. Representation Before Jurisdiction. No person shall attempt to
represent or represent a client for a fee before the governing body of a public body of
which the person is a member. This subsection does not apply to the person’s employer, business partner, or other associate. ORS 244.040(6).
H. Actual and Potential Conflicts.
1. A potential conflict of interest exists when a public employee takes
action that reasonably could be expected to have a financial impact on that
public employee, a relative, or a business with which the public employee or
public employee’s relative is associated. ORS 244.020(13). The
decision-maker must disclose the potential conflict, but then may participate in
discussions and in the decision.
2. An actual conflict of interest occurs when the action is reasonably certain
to result in a financial benefit or detriment. It will occur when an action is
taken that directly and specifically affects land, a business, or any other
financial interest of the office of the public employee or public employee’s
relative. ORS 244.020(1). The decision-maker must disclose the actual
conflict and cannot participate in discussions or in the decision.
I. Choices and Responsibility. Although these distinctions may blur on
occasion, it is important to be vigilant. In each situation there are three choices, the
first two are almost always safe and the last one is likely to get you in trouble. The
choices are: (1) err on the side of caution - i.e. don’t accept a gift, don’t participate in
a vote on a matter that might present a conflict; (2) consult the Oregon Ethics
Commission or City Attorney’s office before taking/not taking action; or (3) (likely to
get you in trouble) go ahead and do it without verifying compliance with ethics laws
first.
Public officials are held personally responsible for complying with the provisions in
Oregon Government Ethics law. If a public official fails to comply with the operative
statutes, a violation cannot be dismissed by placing the blame on the public officials
government employer of the governing body represented by the public official.
J. Jurisdiction. Jurisdiction over violations of the Ethics Code is vested in the
Oregon Government Ethics Commission. See ORS Chapter 244.
III. PLANNING COMMISSION ETHICS
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Planning commissioners have an ethical obligation to act as a fair and impartial
decision-maker. An impartial decision-maker free of bias and undisclosed ex parte contacts is
a fundamental requirement of all quasi-judicial land use proceedings. Fasano v. Board of
County Comm’rs, 264 Or 574, 588, 507 P2d 23 (1973), overruled on other grounds, 288 Or
585 (1980). Note that the following requirements are the bare minimum legal standards to
ensure an impartial tribunal; when in doubt, it is best for public officials to disclose potential
biases, ex parte contacts, or conflicts of interest.
A. Bias. Bias occurs when there is prejudice, prejudgment of the facts, or
personal interest to such a degree that an official is incapable of making an objective
decision based on the merits of the case. The standard for bias is actual impartiality on
the part of the decision-maker toward the particular subject-matter, not merely a lack
of appearance of impartiality. Impartiality is required only towards the parties and
issues in a particular (quasi-judicial) matter, not toward all individuals and all competing interests in the community. 1000 Friends of Oregon v. Wasco County Court,
304 Or 76 (1987).
Actual bias disqualifies a decision-maker from participating in a quasi-judicial land use
decision. Actual bias occurred when a decision-maker lived in or near a development
and actively opposed the development and did not recuse himself from participating in
a decision on the development. Halvorson-Mason Corp. v. City of Depoe Bay, LUBA
No. 2000-118, 39 Or LUBA 702 (2001). Bias was also found when a decision-maker
was a member of a church congregation, actively advocated or supported expansion
of the church, and then failed to recuse him- or herself when the church applied to
expand. Friends of Jacksonville v. City of Jacksonville, LUBA No. 2001-132, 42 Or
LUBA 137, aff’d, 183 Or App 581 (2002).
B. Ex-Parte Contact. An ex parte communication is any communication with
a decision-maker outside a public hearing regarding a matter that is relevant to the
decision. The rules regarding ex parte communications apply only to quasi-judicial
land use decisions; decision-makers are free to communicate regarding legislative
actions (i.e. be “lobbied” by interested parties). Decision-makers’ communications
with City staff are not ex parte contacts that need to be disclosed.
Ex parte communications do not make a decision invalid as long as the decision-
maker (1) makes a public announcement of the content of the communication and of
the parties’ right to rebut the substance of the communication at the first hearing
following the communication, and (2) places the substance of the communication on
the record. When there has been an ex-parte contact, disclose it on the record and
offer the parties the right for rebuttal. ORS 227.180(3).
Site visits are not considered ex parte contacts, but a decision-maker has an obligation
to disclose site visits so that any information gained from a site visit can be included in
the record. See Carrigg v. City of Enterprise, 48 Or LUBA 328 (2004). For that reason, planning commissioners should treat site visits in the same way as ex parte
contacts, and announce the site visit during the public hearing just as though it was an
ex parte communication.
C. Conflicts of Interest. A decision-maker with an actual conflict of interest
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must recuse himself or herself from participating in both the deliberation and the
decision. A decision-maker with a potential conflict of interest must disclose the
potential conflict on the record, but then may participate in both the deliberation and
the decision.
IV. TORT CLAIMS
A. “Will I Be Sued?” The simple answer is there is no guarantee you will not
be sued and it is entirely possible that you could be sued. It does not take a
meritorious claim in order to institute a suite. All it takes is a person who believes
strongly that he or she has been harmed or shown disrespect, a filing fee and the hiring of an attorney (or suing pro se). The real issue is what is the likelihood of success of
any lawsuit and what actions can be taken to minimize the success of that lawsuit.
B. History of Governmental Immunity. Historically the doctrine evolved
that “the King can do no wrong.” Thus, when a person attempted to sue the State for
a personal wrong, the State was held to be immune from tort liability. The initial
concept was created because the King did not answer to people. Subsequently, the
rule of law evolved into the premise that the people (through their elected officials as
a whole) cannot be guilty of a tort.
C. Oregon Tort Claims Act.
1. Immunity Waived. Prior to 1967, governmental entities were
absolutely immune from suit, except for breach of contract claims. With the
passage of the Oregon Tort Claims Act of 1967, codified at ORS 30.260 to ORS
30.400, a “public body” became subject to suit for its torts and the torts of its
officers, employees, and agents acting within the scope of their employment or
duties. Why changed: horrible fact situations crying out for justice and
insurance.
2. Actions Permitted. Pursuant to ORS 30.265(1), however, these
actions are limited to those against the public body only, not against individuals.
The liability of a public body is limited. See ORS 30.272.
3. Remaining Limitations on Suit.
a. Notice within 6 months (“knew or should have known”).
b. Suit filed within two years (“knew or should have known”).
c. Cap on amount.
d. Punitive damages may not be awarded against public bodies.
ORS 30.269.
4. Immunities. Public bodies and the officers, employees and agents of
public bodies, are immune from liability for: 1) workers’ compensation claims;
2) tax claims; 3) claims based upon the performance of discretionary
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functions; 4) claims barred by statute; 5) riots; and, 6) injury or death claims
when the public officer or employee is immune from liability; 7) acts or
omissions done under apparent authority of law which is determined to be
invalid or unconstitutional unless such act was done or omitted in bad faith or
with malice. ORS 30.265(6).
5. Public Entity is Defendant. If an action or suit is filed against an
officer, employee or agent of a public body, on appropriate motion, the public
body is substituted as the only defendant. ORS 30.265(1).
6. Discretionary Functions. Discretionary functions are those in which
the official utilizes some element of personal judgment in decision making. The
official is granted immunity as long as he/she acts honestly and in good faith.
In contrast, there is no tort immunity for “ministerial” functions, in which the
official or employee is carrying out the orders of others or established duties of
his or her office.
7. Defense Required. In addition to the specific immunities enumerated
above, ORS 30.285(1) requires a municipality to defend, save harmless and
indemnify its officials and tort actions arising out of performance of their duties.
Public bodies may also procure insurance against liability or establish
self-insurance funds to shield the entity and its employees from liability. ORS
30.282(1).
8. Defense not Required. A public body is not required to defend its
employees for 1) actions outside the scope of official duty; 2) malfeasance; or
3) willful and wanton neglect of duty, as these are not within the scope of
official duties. ORS 30.285(2).
9. What to Do If You are Sued.
a. Request Counsel. An official against whom a tort claim has
been filed may submit a written request for counsel to the Planning
Commission. The public body must then defend the official unless it
decides that the alleged act or omission was outside the performance of
duty or that there was malfeasance in office, or willful or wanton neglect
of duty.
b. Defense/No Defense. If the City refuses defense and the
official asserts and establishes entitlement to defense by the public, City
must indemnify the official against liability and pay reasonable defense
costs. If, alternatively, the City defends the official but the court
establishes that the act or omission was outside performance of duty or
involved malfeasance in office or willful or wanton neglect of duty, the
judgment against the official must include payment to City of defense
costs and reasonable attorney fees (ORS 30.287).
c. Cooperation Required. An official who is defended by City is
required to cooperate with counsel on the defense. Failure to
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cooperate is adequate grounds for City to reject defense of the claim.
10. Litigation Avoidance Checklist for Planning Commission Members.
ALLOW PEOPLE THEIR DIGNITY. Spending 20 extra minutes to show
simple courtesy and fairness may save you hundreds of hours preparing for
court and save City substantial dollars.
DON’T DENIGRATE THE LAW. Avoid pronouncements like “I don’t care
what the law says, this is the way we are going to do it.” Example: “I know our
attorney has informed us we can’t do this - but we are going to do it anyway.”
LUBA reversed PC decision and quoted PC member remark.
DUTY TO ORGANIZATION. Remember that your primary duty is to the organization (i.e. the City of Springfield itself, not any particular person or
political position).
THINK BEFORE ACTING. Do not make hasty decisions in moments of
excitement or emotion. Make sure you have all the facts. Do not rely on only
one side’s version of a disputed issue. Demand sufficient information.
AVOID CONFLICTS. Avoid conflicts of interest by disclosing potential
conflicts and refusing to make decisions on any matter in which you or your
family have an interest.
ACT. After considering all the options, act in a responsible and reasonable
manner. Remember failure to act is easier to prove then misjudgment.
COMPLY WITH OWN RULES. Do not cut corners. City must comply with
their own ordinances and rules of procedure.
RECORD REVIEWS FOR NON-COMPLIANCE. In the event it is not
possible to comply with an ordinance, make a record of the reasons.
V. DEFAMATION
A. Defamation. Liability for defamation is based on the unprivileged
publication to a third person of a false and defamatory matter concerning a person that
damages a person’s reputation. A person is most commonly defamed through some
form of verbal communication, however, an action for defamation may be based the
publication of a political cartoon, the use of physical gestures, or other forms of
non-verbal communication. A corporation, partnership, or other legal entity may be
defamed.
B. Reputation. The suit in tort for defamation provides redress for injury to
one’s reputation. A defamatory communication is one that tends to subject the
person to hatred, contempt, or ridicule, or tends to diminish the esteem, respect, good
will or confidence in which the person is held by a substantial and respectable majority.
It is the tendency for the words to have an adverse effect on a person’s reputation that
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makes them defamatory.
C. Affirmative Defense. There are affirmative defenses to a suit for
defamation. These include Absolute Privilege and Conditional Privilege.
1. Privilege. Absolute Privilege is an occasion on which certain
defamatory utterances are absolute and unqualifiedly privileged. Conditional
Privilege is a qualified privileged.
2. Difference/Absolute/Conditional. The difference between absolute
and qualified privilege lies in the effect of the motive and purpose of the
defamer. The malice or malevolent purpose of the defamer is of no
consequence if the occasion is absolutely privileged, but if the privilege is
conditional only, proof of actual malice or ill-will makes the defendant liable.
3. Social Importance. The defenses of qualified and absolute privilege
rest upon the same idea that conduct which otherwise would be actionable is to
escape liability because the defendant is acting in furtherance of some interest
of social importance, which is entitled to protection even at the expense of
uncompensated harm to the plaintiff’s reputation. If it is one of paramount
importance, considerations of policy may require that the defendant’s immunity for false statements be absolute, without regard to his/her purpose or motive,
or the reasonableness of his conduct. If it has relatively less weight from a
social point of view, the immunity may be qualified, and conditioned upon good
motives and reasonable behavior. The defendant’s belief in the truth of what
he/she says, the purpose for which he/she says it, and the manner of
publication, all of which are immaterial when no question of privilege is
involved, may determine the issue when he enters the defense of such a
conditional privilege.
4. Case Law. In Oregon we have two cases that provide illustration and
guidance. Those cases are: Norman L. Noble v. Wilbur E. Ternyik, 273 Or. 39
(1975) and Val Adamson v. Wallace Bonesteele Jr., 295 Or. 815 (1983).
a. In the Noble v. Ternyik case a defamation action was filed
against Wilbur Ternyik as a Commissioner of the Port of Siuslaw. There
was a Port Commission meeting to discuss using a registered brand to
mark the port’s logs. During the discussion Wilbur Ternyik remarked:
“The Port of Siuslaw should buy a log-branding device in order to
stop that damn Norman Noble (plaintiff) from stealing any more
logs.”
The Oregon Supreme Court determined that Wilbur Ternyik’s comment
was absolutely privileged. The Oregon Supreme Court stated that 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. The Oregon Supreme Court
stated that members of legislative bodies must either impart their
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information for all to hear and endure a possible defamation action and
ensuing judgment or remain mute and thereby not completely
participate in the role to which they have been appointed or elected.
The court, in finding that Mr. Ternyik had absolute privilege, opted for
discussion and informed citizens.
b. In Adamson v. Bonesteele, Wallace Bonesteele was a member of
the Salem City Council. During an interview with a reporter Bonesteele
made the following statement about Val Adamson:
“If he wants to have a profitable business, he’ll follow the
recommendations. But I don’t think he wants a
profitable business. I don’t think he cares. His whole
attitude absolutely defies good business judgment. I’ve
tried to counsel him for two years on some business
practices and it’s like talking to an eight year old.”
“He’s creating his own problems. I refuse to take any
responsibility.”
“He’ll sit there and look you eyeball-to-eyeball and still not
tell you the truth.”
Adamson sued Bonesteele alleging defamation. Bonesteele argued
that he had an absolute privilege. The court found the absolute
privilege extended only when made during a meeting when the Planning
Commission was acting in its legislative capacity. Comments made to a
reporter outside of the meeting are not afforded absolute privilege.
The court found that absolute privilege does not protect a legislator or
councilor during private or public discussion outside of his legislative
function whether explaining his or her reasons for voting on past,
pending or proposed legislation or who otherwise discusses legislation,
or who engages in other activities incidentally related to legislative
affairs but not a part of the legislative process itself.
VI. PUBLIC RECORDS & PUBLIC MEETINGS
A. Overarching Policy. Public Business Is Done in Public.
1. Public Records Law. “Every person has a right to inspect any record
of a public body in this state” except as expressly provided in exceptions ORS
192.501 to 192.505. ORS 192.420.
2. Public Meetings Law. “All meetings of a governing body of a public
body shall be open to the public, and all persons shall be permitted to attend
any meeting except as provided by ORS 192.610 to 192.690. ORS 192.620.
B. Public Records Law. The definition of “public record” in ORS 192.410(4)
and the policy statement in ORS 192.420 make it clear that the records law applies
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broadly. A “public record” includes: “any writing that contains information relating to
the conduct of the public’s business, including but not limited to court records,
mortgages, and deed records, prepared, owned, used or retained by a public body
regardless of physical form or characteristics.”
1. Emails. Public documents by definition include a Planning Commission
member’s email to another Planning Commission member concerning Planning
Commission business. It is very important for the Planning Commission to
keep in mind that communications between yourselves, whether they be email
or written communications, are most probably public documents.
2. Exemptions. Public records may not include staff reports or
communications among staff, however, once a report comes to the Planning
Commission it is a public record. There are some specific exemptions, that is
documents that are public records that we do not need to disclose to the
public, because of the confidentiality and our obligation to third parties to keep
that information confidential. Examples: (1) personnel files, (2) information
concerning litigation, (3) real estate negotiations.
C. Public Meetings Law. Public Meetings Law applies to all meetings of a
governing body for which a quorum is required in order to make a decision or
deliberate toward a decision on a matter. ORS 192.610(5), 192.630(1).
1. Requirements.
a. Notice. Public notice must be given of the time and place of
meetings. This requirement applies to regular, special and emergency
meetings. ORS 192.620. The public notice requirements apply to
any “meeting” of a “governing body” subject to the law, including
committees, subcommittees and advisory groups. The notice must be
reasonably calculated to provide actual notice to the persons and the
media that wish to be notified. Although the 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 issues.
b. Minutes and Recordkeeping. The governing body must provide a
sound, video, or digital recording or written minutes of its meeting.
ORS 192.650(1).
2. Subject of Meetings and “Social Gatherings”. Even if a meeting is for
the sole purpose of gathering information to serve as a basis for a subsequent
decision or recommendation by the governing body, the meetings law will
apply. Purely social gatherings of the members are not covered by Public
Meetings Law as long as no deliberations or discussions of any matter of official
decisions occur during the gathering. Members constituting a quorum must
avoid any discussions of official business during such a gathering.
3. Public Meetings Via Email or Other Electronic Communication.
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Public Meetings Law expressly recognizes that meetings may be conducted by
telephonic conference calls or “other electronic communication.” ORS
192.670(1). Accordingly, notice and opportunity for public access must be
provided when meetings are conducted by electronic means.
4. Serial Communications. Serial communications (i.e. like the game of
“Telephone”) that involve a quorum of a public body have been found to
violate the public meetings law. For that reason, it is best to avoid the “reply
all” function when communicating by email with City staff, when all members
of the PC have been copied on a particular email thread.
VII. LEGISLATIVE VERSUS QUASI-JUDICIAL PROCESSES
A. Which process applies. When the Planning Commission is considering a
land use issue involving the adoption of City laws that regulate land uses, it uses
the legislative process (creating laws). When the Planning Commission is
considering applying existing land use regulations (approval criteria) to a specific set
of facts, a zone change for example, it uses the quasi-judicial process (applying laws).
There is no State law defining the difference between legislative process and
quasi-judicial process—the Land Use Board of Appeals (LUBA), the Court of Appeals
and the Oregon Supreme Court have addressed the issue and provide the best
available guidance to explain the difference between the legislative and quasi-judicial
process. The quasi-judicial process is to be used if:
The process is bound to result in a decision. The decision is bound to apply to
preexisting criteria to concrete facts, and the action is directed at a closely
circumscribed factual situation or a relatively small number of persons. Strawberry
Hill 4-Wheelers v. Benton County Board of Commissioners.
No one of the three factors is determinative. ODOT v. Klamath County, LUBA.
B. Legislative Process. The legislative process is less restrictive than the
quasi-judicial process. The process of creating laws involves decision makers who do
not sit as an impartial tribunal. The less restrictive nature of the legislative process
allows ex-parte contacts to occur.
C. Quasi-Judicial Process. The quasi-judicial process is more prescribed
because the decision makers sit as an impartial tribunal similar to a judge in a court.
1. Procedural Requirements. ORS 197.763 sets the requirements for
noticing and conducting quasi-judicial public hearings. Springfield
Development Code 5.2-100 complies with ORS 197.763 and codifies the
requirements. ORS 197.763 and SDC 5.2-100 are attached for your reference.
Key requirements include the following:
a. An opportunity to be heard;
b. An opportunity to present and rebut evidence;
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c. A right to an impartial tribunal;
d. A right to findings of fact; and
e. A right to a record of the proceedings.
2. Decision. The decision must apply the approval criteria to the facts.
ORS 227.173(1). If the applicant demonstrates compliance with the criteria,
the application must be approved even if the Planning Commission disagrees
with the criteria, or believes that additional unadopted criteria should be
applied. Conversely, if the applicant fails to demonstrate compliance with the
applicable criteria, the Planning Commission must deny the application even if
the Planning Commission believes the applicable criteria are unreasonable.
3. Findings. Findings explain why a decision is made. Findings ensure
that applicable legal standards have been address to show that the decision
complies with the applicable law. The findings must address all of the
applicable criteria. Failure to make a required finding creates a void in the
record and renders the order legally insufficient.
QUESTIONS?
Feel Free to Contact the City Attorney’s Office. Questions or potential problems are better
addressed proactively than retroactively.
Kristina Kraaz: kskraaz@springfield-or.gov
Mary Bridget Smith: mbsmith@springfield-or.gov
Springfield City Attorney’s Office
225 Fifth Street
Springfield, OR 97477
Phone: 541-744-4061
Fax: 541-744-4185
Attachment 1, Page 17 of 17
Springfield Planning Commission
Ethics Training “Cheat-Sheet”
Last Updated February 2019
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1. The Oregon Government Ethics Law
Scope of the Oregon Government Ethics Law
• Applies to all elected and appointed officials, employees and volunteers at all levels of state and local government in all three branches.
• Prohibits use of public office for financial gain.
• Requires public disclosure of financial conflicts of interest.
• Requires designated elected and appointed officials to file an annual disclosure of sources of economic interest.
• Limits gifts that an official may receive per calendar year.
• Found in Oregon Revised Statutes, Chapter 244. See the attached Ethics and
Standards of Conduct document for more complete information.
No Financial Gain from serving as a Public Official
Oregon’s ethics laws prohibit every public official from gaining a financial benefit or
avoiding a financial cost due to his or her position, with very few exceptions. Planning
Commissioners are public officials. Public employees and volunteers are also public
officials.
Some financial benefits are legally exempt from the rule against financial gain. The
attached Ethics and Standards of Conduct document provides more detailed information
on the exceptions to the rule against financial gain. In brief, the exceptions include:
• A benefit in an official compensation package (planning commissioners are
presently not compensated)
• An “honorarium” in connection with a public duty that is valued less than $50 or
is related to the official’s private profession or expertise
• Reimbursement for expenses
• An unsolicited professional achievement award; and
• Gifts that meet certain limitations described in ORS 244.020. (See page 2 - of the
Ethics Outline for more information regarding Gifts.)
Conflicts of Interest
A conflict exists whenever a decision or recommendation by a public official could or
would financially impact that public official or their relative. An official with an actual
conflict of interest must publicly announce the nature of the conflict and may NOT vote
or participate in the discussion or debate. An official with a potential conflict of interest
must publicly announce the nature of the conflict, but may vote and participate in the
discussion.
The difference between an actual conflict of interest and a potential conflict of interest is
determined by the words “would” and “could”: an actual conflict would affect a financial
interest of the official or official’s relative; a potential conflict could affect a financial
interest of the official or official’s relative.
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Ethics Training Page 2 of 7
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Annual Verified Statement of Economic Interest
Planning commissioners must file an Annual Verified Statements of Economic Interest
(SEI) online. Notifications and instructions for e-filing will primarily be sent to SEI filers
electronically via email. OGEC requires the contact person for each jurisdiction to
maintain and provide email addresses for each SEI filer in addition to the other relevant
contact information.
2. Public Meetings & Public Records Law
Public Meetings Must Be Public
Oregon’s public meetings law requires all meetings of the governing body of a public
body (which includes the Planning Commission) to be open to the public, unless the
meeting is held in executive session. [ORS 192.630]
A “meeting” is any convening of a governing body of a public body for which a quorum
is required to make a decision or deliberate toward a decision on any matter. In other
words, it is a “meeting” any time a majority of the Planning Commission are deliberating
toward a decision on any matter, and must be open to the public under the public
meeting law. For example, sending an email and CC-ing all the Planning commissioners
to discuss an issue that will be on an upcoming Planning Commission meeting agenda is
a violation of the public meeting law if the email conversation includes “deliberations” or a decision on the issue.
Public Records Overview
Generally, every person in Oregon has a right to inspect any public record for any
reason. A “public record” is any writing that contains information related to the conduct
of the public’s business, that is prepared, used, owned, or retained by a public body
(which includes the Planning Commission), regardless of the physical form of the
writing. For example, an email on a private email server (like Gmail) is a public record if it relates to the conduct of the public’s business.
The public records law requires public bodies to retain a record or copy of the record
and make it reasonably available for public inspection. OAR 166-020-0010. Most public
records can only be destroyed or disposed of based on a schedule set by the State
Archivist. ORS 192.170. A public body may charge a reasonable fee for public records
requests to cover the actual cost of making the record available to the public.
Public Records Exempt from Disclosure
There is a long list of specific public records that are exempt from disclosure. Most
exempt public records may be disclosed if the public interest requires disclosure. The most common types of exempt public records include records related to employees,
litigation, trade secrets, test questions and scoring keys, personnel discipline actions,
operational plans to respond to public safety threats and records that would reveal weaknesses in security measures, social security numbers, and some records related to
law enforcement. A full list of exemptions can be found in ORS 192.501 to 505.
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Ethics Training Page 3 of 7
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If only part of a public record is exempt from disclosure, that part must be redacted or
separated, and the rest of the record made public.
3. Duty to Act as an Impartial Tribunal
Parties that appear in front of the Planning Commission in quasi-judicial land use
decisions have a right to an impartial tribunal. An impartial tribunal is one free of actual
bias and actual conflicts of interest, and free of undisclosed ex parte conflicts.
Bias/Conflict of Interest
There are two types of bias: prejudgment and personal interest (also called a “conflict of
interest”). Bias requires an actual, not just apparent, prejudgment or personal interest in
the outcome. 1000 Friends of Oregon v. Wasco County Court, 304 Or 76, 83, 742 P2d
39 (1987). Actual bias due to prejudgment is established by explicit statements,
pledges, or commitments that the elected local official has prejudged the specific matter
before the tribunal. Columbia Riverkeeper v. Clatsop Cty., 267 Or. App. 578, 609–10
(2014). Actual bias due to personal interest occurs when the decision-maker would
benefit financially from a particular outcome. See also “Conflicts of Interest” above.
Ex Parte Communications
An ex parte communication is any communication with a decision-maker outside a public
hearing regarding a matter that is relevant to the decision. When there has been an ex-parte contact, disclose the substance of the contact on the record and offer the parties
the right for rebuttal. ORS 227.180(3).
Questions?
Contact legal counsel at any time if you have questions. It’s better to address
issues proactively than retroactively.
Kristina Kraaz: kskraaz@springfield-or.gov
Mary Bridget Smith: mbsmith@springfield-or.gov
Springfield City Attorney’s Office
225 Fifth Street, Suite 510
Springfield, OR 97477
Office: 541-744-4061
Fax: 541-744-4185
Attachment 2, Page 3 of 7
Ethics Training Page 4 of 7
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American Planning Association’s Ethical Principles
The following Ethical Principles in Planning are an ethics guide to planning provided by
the American Planning Association – a nationwide professional organization of land use
planners, educators, and public officials. These ethical principles provided as a
resource for ethical behavior in the land use field. Note that these standards are
developed nationally and are not legally binding – they do not replace or supersede your
obligations under Oregon ethics law or requirements under Oregon land use law.
Ethical Principles in Planning
(As Adopted May 1992)
This statement is a guide to ethical conduct for all who participate in the process of
planning as advisors, advocates, and decision makers. It presents a set of principles to
be held in common by certified planners, other practicing planners, appointed and
elected officials, and others who participate in the process of planning.
The planning process exists to serve the public interest. While the public interest is a
question of continuous debate, both in its general principles and in its case-by-case
applications, it requires a conscientiously held view of the policies and actions that best
serve the entire community.
Planning issues commonly involve a conflict of values and, often, there are large private
interests at stake. These accentuate the necessity for the highest standards of fairness
and honesty among all participants.
Those who practice planning need to adhere to a special set of ethical requirements that
must guide all who aspire to professionalism.
The Code is formally subscribed to by each certified planner. It includes an enforcement procedure that is administered by AICP. The Code, however, provides for more than the
minimum threshold of enforceable acceptability. It also sets aspirational standards that
require conscious striving to attain.
The ethical principles derive both from the general values of society and from the
planner's special responsibility to serve the public interest. As the basic values of society
are often in competition with each other, so do these principles sometimes compete. For
example, the need to provide full public information may compete with the need to
respect confidences. Plans and programs often result from a balancing among divergent
interests. An ethical judgment often also requires a conscientious balancing, based on
the facts and context of a particular situation and on the entire set of ethical principles.
This statement also aims to inform the public generally. It is also the basis for continuing systematic discussion of the application of its principles that is itself essential
behavior to give them daily meaning.
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The planning process must continuously pursue and faithfully serve the
public interest.
Planning Process Participants should:
1. Recognize the rights of citizens to participate in planning decisions;
2. Strive to give citizens (including those who lack formal organization or influence)
full, clear and accurate information on planning issues and the opportunity to
have a meaningful role in the development of plans and programs;
3. Strive to expand choice and opportunity for all persons, recognizing a special
responsibility to plan for the needs of disadvantaged groups and persons;
4. Assist in the clarification of community goals, objectives and policies in plan-
making;
5. Ensure that reports, records and any other non-confidential information which is,
or will be, available to decision makers is made available to the public in a
convenient format and sufficiently in advance of any decision;
6. Strive to protect the integrity of the natural environment and the heritage of the
built environment;
7. Pay special attention to the interrelatedness of decisions and the long range
consequences of present actions.
Planning process participants continuously strive to achieve high standards of integrity and proficiency so that public respect for the
planning process will be maintained.
Planning Process Participants should:
1. Exercise fair, honest and independent judgment in their roles as decision makers
and advisors;
2. Make public disclosure of all "personal interests" they may have regarding any
decision to be made in the planning process in which they serve, or are
requested to serve, as advisor or decision maker.
3. Define "personal interest" broadly to include any actual or potential benefits or
advantages that they, a spouse, family member or person living in their
household might directly or indirectly obtain from a planning decision;
4. Abstain completely from direct or indirect participation as an advisor or decision
maker in any matter in which they have a personal interest, and leave any
chamber in which such a matter is under deliberation, unless their personal
interest has been made a matter of public record; their employer, if any, has given approval; and the public official, public agency or court with jurisdiction to
rule on ethics matters has expressly authorized their participation;
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5. Seek no gifts or favors, nor offer any, under circumstances in which it might
reasonably be inferred that the gifts or favors were intended or expected to
influence a participant's objectivity as an advisor or decision maker in the
planning process;
6. Not participate as an advisor or decision maker on any plan or project in which
they have previously participated as an advocate;
7. Serve as advocates only when the client's objectives are legal and consistent
with the public interest.
8. Not participate as an advocate on any aspect of a plan or program on which they have previously served as advisor or decision maker unless their role as advocate
is authorized by applicable law, agency regulation, or ruling of an ethics officer or
agency; such participation as an advocate should be allowed only after prior
disclosure to, and approval by, their affected client or employer; under no
circumstance should such participation commence earlier than one year following
termination of the role as advisor or decision maker;
9. Not use confidential information acquired in the course of their duties to further
a personal interest;
10. Not disclose confidential information acquired in the course of their duties except
when required by law, to prevent a clear violation of law or to prevent
substantial injury to third persons; provided that disclosure in the latter two
situations may not be made until after verification of the facts and issues
involved and consultation with other planning process participants to obtain their
separate opinions;
11. Not misrepresent facts or distort information for the purpose of achieving a
desired outcome;
12. Not participate in any matter unless adequately prepared and sufficiently
capacitated to render thorough and diligent service;
13. Respect the rights of all persons and not improperly discriminate against or
harass others based on characteristics which are protected under civil rights laws
and regulations.
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Resources
OGEC Guide for Public Officials
The Oregon Government Ethics Commission (OGEC) publishes a comprehensive guide
on government ethics for public officials. The guide is available free as a PDF at:
http://www.oregon.gov/OGEC/pages/training.aspx
iLearn Oregon
OGEC offers free online training through iLearn Oregon. Training modules are short,
focused, and convenient. There are no-cost trainings on several topics, including
conflicts of interest, gifts, and executive sessions. OGEC iLearn trainings are available
at: http://ilearn.oregon.gov.
OGEC Opinions
OGEC issues formal and informal opinions in response to real-life ethics questions asked
by public officials. The opinions are available to view and download online, and can be looked up by the topic that they address, such as “conflicts regarding a relative” and
“gifts.” OGEC Advisory Opinions are available at:
http://www.oregon.gov/OGEC/Pages/advisory_opinions.aspx.
Ethics Statutes and Rules
OGEC has compiled links to the relevant statutes and administrative rules regarding
government ethics, which are available here:
http://www.oregon.gov/OGEC/Pages/statutes_rules.aspx.
The Attorney General’s Public Records and Meetings Manual
The Oregon Attorney General publishes and updates this manual, which includes a
sections on public meetings requirements and executive sessions. The manual is
available for free online at the AG’s website:
http://www.doj.state.or.us/public_records/manual/pages/index.aspx.
The Citizen’s Guide to Public Records and Meetings
This guide is a pared-down Q&A version of the AG’s longer Public Records and Meetings
Manual. It is available at:
http://www.doj.state.or.us/public_records/pages/citizens_guide.aspx.
Annual Verified Statement of Economic Interest
The Electronic Filing System website to register a new account or sign in to an existing account is available here: https://apps.oregon.gov/OGEC/EFS. OGEC has created a
helpful instructional video that walks you through how to use the Electronic Filing
System and the online SEI form. That video is available on the OGEC website here:
http://www.oregon.gov/OGEC/Pages/efs.aspx.
American Planning Association’s Ethical Principles in Planning
https://www.planning.org/ethics/ethicalprinciples.htm
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