Allan Classen
Editor & Publisher

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Agency claims some advisory
committees aren’t public bodies

 

Ethics reforms have stalled under the thumb of City Commissioner Chloe Eudaly and the civic engagement office she controls.

In 2017, City Council approved guidelines to “enhance community service opportunities and strengthen the transparency and accountability of city advisory bodies.” The resolution focused on bolstering conflict of interest disclosure while reinforcing existing open meetings standards.
A year later, the Office of Community & Civic Life hasn’t completed an inventory of the approximately 150 advisory bodies, which range from the Prosper Portland Commission to the Noise Review Board.

According to the OCCL website, only 56 have provided basic information on their purpose and how to contact them. No rosters of members or terms are posted as called for in the ordinance.

If the process is lagging forward, it has wasted no time in attacking one of the most basic and settled principles of government transparency: open meetings. Without seeking public input or announcing a fundamental policy shift, OCCL posted guidelines on its website affirming that many, perhaps the vast majority, of the city’s advisory bodies need not hold open meetings. Nor do they need a quorum to conduct business.
The only bodies required to follow state Open Meetings Law under this scheme would be those reporting to City Council.

Separating the council-controlled bodies from the others may not be as obvious as it sounds. For instance, the Portland Freight Committee serves as an advisory group to both the Bureau of Transportation and City Council.

Each city bureau has a budget advisory committee. Do they advise their bureau or do they advise the council when they advocate for adoption of budgets they helped write? No direction is given online to explain how such distinctions are made. Who decides which bodies are bound by open meetings requirements? The website doesn’t indicate how each body is classified.

We asked OCCL Executive Director Suk Rhee how the classifications are made but haven’t gotten an answer.

OCCL’s oversight of the Volunteer Boards & Commissions can be characterized as adopting policies and asking questions later. The matrix posted by OCCL is so crude that it creates two classifications for bodies reporting to City Council, distinguishing them only by whether they are “usually perpetual” or “limited” in duration. Obviously, there is no need for two columns.

When the matrix went live in August, there were three categories of bodies. Later, a fourth was added for quasi-judicial bodies. That column remains blank as to whether quorums or open meetings are required.

“Everything Civic Life has shared/presented is still very much in draft form,” wrote Eden Dabbs, spokesperson for BP&S. “We are all still in the initial phase of implementing/updating any changes, and guidance is supposed to all be coming from their office.”

Which is not to say that nothing is changing in the way city advisory bodies function. Or that uncertainty has produced universal paralysis.

Certainty reigns

 

City staff, at least some serving a bureau controlled by Eudaly, were ready for implementation from the start.

City Commissioner Chloe Eudaly co-sponsored the 2017 ethics reform resolution, but when she was given responsibility for implementation, existing open meeting requirements were scaled back.

I was surprised to learn in August that the Northwest Parking Stakeholders Advisory Committee, comprised of neighborhood representatives who oversee the Zone M parking zone and its $1 million a year revenues from meters, was advised by city staff that it was not subject to open meetings requirements and could conduct business by email.

“I am pretty sure this SAC is a Type III body, which means you advise bureau staff and are not subject to the Public Meeting Law ORS 192,” wrote Kathryn Doherty-Chapman, a PBOT liaison to the committee.

I questioned the interpretation, which was novel to me.

Doherty-Chapman referred me to a document outlining three types of bodies and their duties (portlandoregon.gov/civic/article/674947).
After investigating, she affirmed that the SAC was a Type III committee and therefore exempt from the law.

“When I started here in June, I reached out to OCCL staff about the upcoming changes. They confirmed that our SAC is a Type III body. Chris Armes, my supervisor, also confirmed that this was her understanding based on conversations and workshops with CCL staff. The website is portlandoregon.gov/civic/article/674947.”

Doherty-Chapman said the interpretation was cleared by the City Attorney’s office.

Rick Michaelson, who chairs the SAC, reviewed the opposing arguments and decided that all SAC meetings would be open as a matter of policy, which remains the practice.

As for the other 100 or more committees in a similar situation, who knows where they stand?

We asked Rhee where the implementation process stands: Is it in a test run until binding policies are enacted?

“The city is complying with state law and that compliance with state law is not a ‘beta’ or voluntary act,” she wrote.

“We are in no way discouraging or prohibiting open meetings. We are, instead, communicating and bringing the city into compliance with minimum state law requirements. Advisory bodies that are not required to conduct open meetings may decide to do so.”

Under state law, there is no such thing. Bodies that advise “public bodies” are required to meet Oregon Revised Statutes Section 192, the bible for Oregon journalists and public officials since 1973.

ORS 192.610(4) defines public bodies to include “any municipal or public corporation, or any board, department, commission, council, bureau, committee or subcommittee or advisory group or any other agency thereof.”

A violation

 

Duane Bosworth, a partner in the firm of Davis Wright Tremaine LLP in downtown Portland, specializes in media law and open government litigation. He was recently honored by the Oregon State Bar for his pro bono work on obtaining public records and opening public meetings.
Bosworth reviewed details of the Northwest Parking SAC at the Examiner’s request.

“It’s a violation of Open Meetings Law” to hold closed meetings of the SAC, he said. “I don’t have any question about that based on what you’ve told me.”

SAC members are appointed by PBOT to advise the director on policies and expenditures regarding the parking zone.

“Does the body have authority to make recommendations to a public body? Does it gather information leading toward a decision?”
The answer to Bosworth was clearly yes to these and other requisites.

Shasta Kearns Moore is president of Open Oregon, a nonprofit devoted to open records and open meetings. She is also a reporter for the Portland Tribune.

“I’m very concerned about these sorts of encroachments on transparency in our democratically elected government,” Kearns Moore wrote in an email to the Examiner. “Anecdotally, it seems that these advisory groups are proliferating as a way to close off the discussion phase of government proceedings to pre-selected committee members. When the press want to cover these meetings—often the only way that the wider community will learn about them—they are blocked with these legal arguments.”

Perhaps that was the intent, if not from the start, at least soon after OCCL gained jurisdiction over the ethics resolution. For months I had been trying to alert Commissioner Nick Fish that his grand reform package had been sabotaged and was being used to actually reduce transparency and democratic safeguards.

Finally, his chief of staff, Sonia Schmanski, laid out a history that explained why no red alert was called.

“One of council’s intentions was to provide greater procedural flexibility for advisory bodies on the theory that being constrained by particular procedural requirements isn’t necessarily the best way to get good discussion and advice,” Schmanski wrote in a Nov. 16 email. “Council is more interested in the quality of the input than the form it takes or the procedure used to develop it.”

Rhee also questions the value of open meetings for grass-roots organizations. In a Think Out Loud segment on Oregon Public Broadcasting in August, she foreshadowed plans to relieve neighborhood associations from a burden:

“Neighborhood associations are actually all volunteer and they’re autonomous and they’re led by the community members themselves. However, as a matter of policy, we’ve required them to obey open meetings laws when they’re not public entities. So I think that’s one of the areas where we’re going to go back to neighborhood associations and ask them, ‘Has that been helpful? You’re not a public entity. You’re not created by government and yet we hold you to public meetings standard.’ Maybe that’s not so fair to neighborhood associations.”

But would it be fair to the wider public? That’s not the question uppermost at City Hall these
days.