Deja vu
Failure to enforce public records law leads to recurring cycle
Jessie Burke, chair of Old Town Community Association, says meeting recordings are private
The District 4 Coalition of neighborhood associations may have taken a clue from the national scene—acknowledging legal violations with no pretense of enforcement.
The coalition board voted unanimously to grant public access to recordings of Pearl District Neighborhood Association meetings, resolving a grievance filed by the NW Examiner. At the same time, the board made it policy to play no role in enforcing any of its grievance decisions.
Consequences for noncompliance with coalition requirements are to be left in the hands of the Portland Office of Community & Civic Life, which in recent years has shown no interest in enforcement either.
Talk without teeth got nowhere with the person controlling the public records in this case.
David Dysert, PDNA Planning and Transportation Committee chair and interim chair of the PDNA board at the time of the grievance, ignored another request for a recording made the day after the coalition supposedly laid down the law.
Delayed action is still possible. A new PDNA chair elected last month has asked for time to straighten things out.
District 4 Coalition staff, meanwhile, sowed new seeds of confusion at more recent training sessions for coalition board members. The attorney who successfully represented a Southwest Portland neighborhood association against another public records request last year was brought in to lead the training. Stephanie Dolan, who directs the Law Garden in Eugene, stuck to her winning argument, that Oregon neighborhood associations are not public bodies and therefore do not have to turn over recordings.
Dolan, who heads a Eugene firm specializing in nonprofit law, is the coalition’s regular lawyer and the one it recommended to Dysert to fend off the Examiner’s record request.
But the coalition board was on a completely different track. On Feb. 3, the board unanimously (with two abstentions) adopted a decision that read, “the recording requested by Mr. Classen is a public record and must be provided. … Recordings become public records and must be provided when requested.”
Despite the disparity, no effort was made at the workshops or by the organization subsequently to reconcile the chasm, or even to acknowledge it as such.
“We have no conflicts, Allan,” District 4 Coalition Executive Director Darlene Urban Garrett wrote in an email. “The Pearl sought legal advice from a nonprofit attorney. Her advice was in conflict with our coalition findings. Our findings were aligned with the ONI [Office of Neighborhood Involvement] Standards.
“The District 4 Coalition is standing with our grievance findings, and if the Pearl wants to appeal it, it will be up to them,” Garrett concluded. “That being said, we will be working with our board to make sure that neighborhoods have record retention policies that are clear and appropriate.”
Record retention policies are one thing, but the duties of Portland neighborhood associations regarding open meetings and public records are considerably more expansive. They cover public notice requirements for meetings and their agendas, the recording of motions and votes cast by each member of the decision-making body, for instance. Decisions not made in accordance with the standards can be invalidated.
Still, public officials and activists alike misinterpret the duties of Portland neighborhood associations.
Last year, Multnomah County District Attorney Mike Schmidt issued an opinion that Portland neighborhood associations are not public bodies under Oregon law. Schmidt contended that such associations fail to satisfy a six-part standard distinguishing public bodies from other entities. This was the decision referred to by Dolan in defending her advice to District 4 Coalition representatives.
Schmidt held that the city’s district coalitions, on the other hand, are public bodies in that “a coalition encompasses a larger geographic area and therefore … from my perspective … is performing a key government function in communicating with its citizens.”
Schmidt also wrote that “the city of Portland requires that neighborhood associations make many of their records available to the public in exchange for receiving official recognition and a number of other benefits from the city.”
If Schmidt’s reasoning defined a clear distinction between coalitions and associations, one independent legal scholar did not see it.
Steve Kanter, dean emeritus of the Lewis & Clark Law School and a Constitutional law professor, told the Examiner that Schmidt’s criteria might just as well apply to neighborhood associations, which also receive city funding to communicate to their constituents.
Kanter found the former DA’s five-page opinion unpersuasive and marred by internal contradictions.
Steve Moskowitz, a pro bono lawyer who serves on the Northwest District Association, prepared an analysis that he shared with NWDA President Todd Zarnitz last month.
“I’m concerned that incorrect information has been provided, particularly regarding public records. I understand that past opinions from the Multnomah County District Attorney Office have been offered as indications that neighborhood associations are not ‘public bodies’ as defined by state law and are therefore not subject to the state public records law.
“However, state law is not the primary body of law which governs how Portland neighborhood associations or district coalitions are to create, maintain and disclose records. The primary body of law governing neighborhood associations and district coalitions on that matter consists of the Portland city code, standards and contractual obligations, and the district attorney has no jurisdiction to interpret and apply those.
“Portland City Code Chapter 3.96, City Council Resolution 36329 and the ONI Standards adopted by City Council clearly define the legal requirements of neighborhood associations to maintain and disclose records, including electronic recordings.
“Although neighborhood associations may not be subject to the state public records law, the Portland City Council by resolution clearly intended that the scope, meaning and interpretation of that law be incorporated into Portland public record rules and regulations as they apply to neighborhood associations.”
The Examiner asked Mayor Keith Wilson’s office to explain the city’s position on the duties of neighborhood associations. The inquiry was passed on to the Office of Community and Civic Life, which issued an unsigned statement: “Neighborhood associations are not public governing bodies, and as such, they follow the ONI Standards. Please let us know if you have any other questions.”
We had a follow-up question: What do you do when an association or coalition violates the ONI Standards? There was no reply from either OCCL or the mayor’s office.
The District 4 Coalition board could send a clear message on public records and the expectations of the associations it serves. Or it could leave things in a haze and see what happens.
The new person at the helm of the coalition board is Jessie Burke, who also chairs the Old Town Community Association. Burke drew the attention of Willamette Week in two stories raising questions about her accountability to the OTCA board. One concerned actions taken by her and fellow OTCA officer Jonathan Cohen, her husband, without board knowledge regarding private businesses in which the couple has a stake.
Burke was asked for records of a Feb. 5 OTCA meeting at which board members had intense exchanges. Recordings of the meetings are made, but not they are available to the public or press.
“Regarding OTCA meeting minutes, we only keep written records,” she told the Examiner. “I have to check with our board, but I believe it is only an official public record once it is approved at our March meeting.”
That was a redux of the Examiner’s grievance against Dysert, which was supposedly resolved by the coalition’s decision on Feb. 3. Burke’s defense was the same one used by Dysert—recordings are not official records and therefore need not be shared.
And those who do not learn history are doomed to repeat it.