Special Note: Role of the Attorney General
At the outset of this discussion of the Public Meetings Law, we note an important distinction between the Public Meetings Law and the Public Records Law. The Attorney General and district attorneys have a special statutory role to enforce the Public Records Law's requirements, except when an elected official claims the right to withhold disclosure. In contrast, neither the Attorney General nor district attorneys have such a role under the Public Meetings Law.
The Attorney General's only role under the Public Meetings Law is to provide legal advice to state agencies, boards and commissions that are subject to the law and to the Oregon Government Ethics Commission in its role under ORS 244.260. Most district attorneys do not have a role in interpreting the Public Meetings Law. The exception is where a district attorney also serves as legal advisor to a county governing body. If a citizen wishes to compel compliance with the meetings law, or believes that a governing body has violated the law, the citizen may file a private civil lawsuit against the governing body. A citizen who believes that a governing body has violated the provisions permitting an executive session may file a complaint with the Oregon Government Ethics Commission. See section F, below. Neither the Attorney General nor any district attorney may assist a citizen in such a suit or complaint.
Nevertheless, as a public service, the Attorney General's office frequently responds to questions from citizens or the news media about the Public Meetings Law. These responses do not constitute formal or informal legal opinions of the Attorney General. This office may issue legal opinions or give legal advice only to state agencies and officers, including members of the legislature. ORS 180.060. We can point out what the law says, and inform interested persons of the construction of the law adopted in the many opinions we have written on the subject. We are committed to providing this informational assistance to promote better public understanding of the Public Meetings Law.
II.A. Policy of the Public Meetings Law
ORS 192.620 establishes Oregon's policy of open decision-making by governing bodies:
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.
This open decision-making policy is given effect by the law's substantive provisions. These provisions are intended to ensure, among other things, that the meetings of governing bodies, at which decisions about the public's business are made or discussed, are open to the public, ORS 192.630(1), (2); that the public has notice of the time and place of meetings, ORS 192.640; and that the meetings are accessible to persons wishing to attend, ORS 192.630(4), (5).
We have acknowledged that strict compliance with the substantive requirements of the Public Meetings Law frequently may "sacrifice speed and spontaneity for more process and formality." Nonetheless, we believe that the law's requirements generally will not interfere with a public body's administration.
All substantive provisions of the Public Meetings Law should be read in light of the policy declaration in ORS 192.620. In case of questions about the application of the Public Meetings Law to particular circumstances, the policy section of the law ordinarily will require a decision favoring openness.
The key requirements of the Public Meetings Law are to hold meetings that are open to the public unless an executive session is authorized, to give notice of meetings and to take minutes or otherwise record the meeting. In addition, there are requirements regarding location, voting and accessibility for disabled persons. All of these requirements are discussed below.
II.B. Bodies Subject to the Law
The Public Meetings Law applies to all meetings of a governing body of a public body 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), 192.630(1). See App B for a simplified guide to when the meetings law applies. Each of these elements, which must be met for the Public Meetings Law to apply, is discussed in detail below. The meetings law binds not only the state, but also cities, counties and other public bodies despite any contrary provisions of their charters, ordinances, rules or bylaws. ORS 192.610(4). Of course, cities, counties and other public bodies may subject themselves to provisions stricter than those of the Public Meetings Law.
II.B.1. Governing Bodies of Public Bodies
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, any regional council, county, city or district, or any municipal or public corporation. A "public body" is also a board, department, commission, council, bureau, committee, subcommittee or advisory group of any of the entities in the previous sentence. ORS 192.610(4). We interpret the definition of a "public body" to require that the body be created by or pursuant to the state constitution, a statute, administrative rule, order, intergovernmental agreement, bylaw or other official act. 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).
For example, a five-member city council and a seven-member licensing board are both governing bodies. But a three-member committee of a seven-member board is itself a "governing body" if it is authorized to make decisions for or to advise the full board or another public body.
II.B.1.a. Authority to Make Decisions for a Public Body
A body that has authority to make decisions for a public body on "policy or administration" is a governing body. ORS 192.610(3). A body possesses such authority, and is therefore subject to the meetings law, if its decision-making authority is equivalent to the authority to exercise governmental power, i.e., is integral to the movement of the government in an area where it has the power and authority to act. Thus, a three-member subcommittee that has authority only to gather information for the full committee is not a governing body. Even though the subcommittee decides when to meet and determines what procedures it will use to gather and report information, it is not vested with the authority to decide the direction in which the government will move on an issue of policy or administration. In contrast, if the subcommittee possesses the authority to make policy or hiring decisions for a public body, then it is a governing body.
A body that is a governing body because of its authority to make decisions for a public body (including itself) is subject to the Public Meetings Law whenever it holds a "meeting" as defined in ORS 192.610(5). See discussion below of Meetings Subject to the Law.
II.B.1.b. Authority to Make Recommendations to a Public Body
A body that has authority to make recommendations to a public body on policy or administration is a governing body. ORS 192.610(3).
An advisory body may be appointed by a state or local government agency or official. If that advisory body does not exercise other governmental powers, it is a governing body only if its recommendations are made to a "public body." We do not construe "public body" to include an individual official. For example, an advisory committee appointed by an individual official, such as the Governor, the individual head of a department or a school principal, is not ordinarily a governing body subject to the Public Meetings Law if the advisory committee reports only to the individual appointing official. If, however, that single official lacks authority to act on the advisory group's recommendations, and must pass those recommendations on unchanged to a public body, the Public Meetings Law applies to the advisory group's meetings.
As long as the advisory body is itself a "governing body" of a "public body," the fact that its members may all be private citizens is irrelevant. Thus, the scope of the Public Meetings Law extends even to private citizens, employees and others without any decision-making authority, when they serve on a group that is authorized to furnish advice to a public body. For example, appointment by a school board of a local school advisory committee consisting of private citizens, who meet with and make recommendations to the school board on school matters, creates a "governing body." In light of the power possessed by student governments at Oregon State System of Higher Education schools to recommend incidental fee assessments and allocations to the Board of Higher Education, the student government committees that prepare and make the recommendations to the board are governing bodies subject to the Public Meetings Law.
II.B.2. Private Bodies
Private bodies are not covered by the Public Meetings Law. Whether a private body becomes subject to the meetings law by virtue of assuming public functions is an unsettled area of the law. 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.
State agencies periodically contract with privately established bodies, such as nonprofit corporations, to carry out public purposes. For example, the Mental Health Division and counties specifically are encouraged by statute to contract with private bodies to furnish community mental health services. Typically, the private body's entire budget consists of public money. Other groups, such as the Oregon Parks Foundation, may have public officers on their boards, receive public funds and carry out public purposes to such an extent that their records are subject to state audit. Such bodies are not subject to the Public Meetings Law.
As discussed in Part I of this manual, the Oregon Supreme Court has developed a test for determining whether an entity is the "functional equivalent" of a public body for purposes of the Public Records Law. Although the definition of "public body" in the Public Meetings Law is similar to the definition in the Public Records Law, they are sufficiently different that the applicability of that test to the Public Meetings Law is questionable. Nevertheless, the court decision may have implications for the meetings of private entities that contract with, or perform services at the request of, public bodies if the private entity has been given authority to make decisions for or recommendations to a public body. A public body or private entity in this situation may wish to consult its legal counsel concerning possible application of the Public Meetings Law to the private entity and the relevance of the six factors identified by the Supreme Court.
One example where a private body's assumption of public functions results in its being subject to the Public Meetings Law is in the context of county alcohol treatment and rehabilitation programs. Under ORS 430.342, an "already existing body" may be designated by a county governing body as the "local alcoholism planning committee" and given statutory functions. Typically, the designee would be a private nonprofit corporation that has contracted with the county to provide alcoholism-related services. Such a private body performing advisory functions for a governing body would be subject to the Public Meetings Law. See discussion above of Governing Bodies. In addition, a public agency may have power by rule or contract to require private bodies that contract with government to open their pertinent meetings to the public.
II.B.3. Federal and Multi-Jurisdictional Bodies
Federal agencies are not subject to the Oregon Public Meetings Law. By its terms, the law covers only Oregon state and local governing bodies.
Multi-jurisdictional commissions, whose members are appointed by several different governments (such as federal agencies, the governors of Oregon and Washington and county governing bodies) and whose Oregon members do not constitute a majority, are not subject to the Oregon Public Meetings Law. However, if such a multi-jurisdictional commission has committees consisting of solely, or a majority of, Oregon appointees that are authorized to make decisions for the commission, or that are authorized to deliberate and make recommendations to the state or any other public body within the state, the meetings of those committees may be subject to the Oregon Public Meetings Law. In some cases, the federal enabling legislation may provide that the multi-jurisdictional commission and its committees must comply with state public records and meetings laws.
II.C. Meetings Subject to the Law
II.C.1. Public Meetings
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).
II.C.1.a. Quorum Requirements
"Quorum" is not defined in the Public Meetings Law. Special statutes often define "quorum" for state governing bodies. Local city and county governing bodies may have "quorum" defined by charter, bylaws or rules of order. ORS 174.130 defines "quorum" as a majority:
Any authority conferred by law upon three or more persons may be exercised by a majority of them unless expressly otherwise provided by law.
For purposes of the Public Meetings Law, we believe this general definition applies in the absence of a special definition of "quorum." See App C for further discussion of quorum.
A gathering of less than a quorum of a committee, subcommittee, advisory group or other governing body is not a "meeting" under the Public Meetings Law. Moreover, if the members of a committee, subcommittee or advisory group are charged to form their recommendations individually rather than collegially through a quorum requirement, the Public Meetings Law does not apply. We have previously stated:
The test of whether an advisory group is covered * * * is whether the group is deliberative in the sense that votes are taken and there is normally a quorum requirement.
In other words, the application of the Public Meetings Law to meetings of a committee, subcommittee or advisory group depends on whether the appointing body directs the committee members to make their findings and recommendations individually or as a recommendation of the group. If the decision or recommendation is to be made by the group, whether by consensus or majority vote, the Public Meetings Law applies. However, if committee members are instructed to make individual rather than group decisions or recommendations, the "meetings" of the committee are outside the scope of the meetings law. This unquestionably is a difficult area of interpretation, and governing bodies are cautioned not to misuse the committee appointment process or decision-making process to subvert the policy of the Public Meetings Law.
Ordinarily, staff meetings are not covered by the Public Meetings Law because no quorum is required. A staff meeting called by a single official is not covered by the Public Meetings Law because the staff do not make decisions for or recommendations to a "public body." If, however, a quorum of a governing body, such as a three-member commission, meets with the body's staff to deliberate on matters of "policy or administration," ORS 192.610(3), or to clarify collegially a decision for staff, the meeting is within the scope of the law. Thus, we have stated:
[G]overning body meetings with administrative staff are subject to the requirement of the Public Meetings Law if a quorum of the members of the governing body convenes to receive information from staff on topics related to particular substantive or administrative matters that a quorum of the governing body will or may be called upon to decide.
We also have observed that some agencies may have latitude to conduct business outside of the Public Meetings Law's requirements by not convening a quorum of the governing body. We stated:
[M]any boards and commissions have authority to conduct official business through means other than the quorum decision-making that triggers the requirements of the Public Meetings Law. Specifically, the [Public Utility] [C]ommission has authority to delegate numerous duties to one commissioner or to staff under ORS 756.055, with specified limitations. Thus, a process of decision-making on day-to-day matters of agency administration legally may be conducted in private by a single commissioner or agency staffer to whom the commission properly has delegated administrative responsibility. However, delegating authority to one commissioner should not be interpreted as nullifying public meetings law requirements if one or more commissioners meet with the delegated commissioner to discuss the subject matter delegated. Arguably, such a maneuver might skirt the requirements of the Public Meetings Law. However, the appearance of impropriety would be substantial and open to charges of subterfuge. In our opinion the risks of such a strategy outweigh its benefits, and the legality of such an interpretation is not free from doubt.
II.C.1.b. Subject of Meetings and Social Gatherings
The Public Meetings Law applies to all meetings of a quorum of a governing body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter. Even if a meeting is for the sole purpose of gathering information to serve as the basis for a subsequent decision or recommendation by the governing body, the meetings law will apply. This requirement serves the policy expressed at ORS 192.620 that an informed public must be aware not only of the decisions of government, but also of "the information upon which such decisions were made." Hence, except for on-site inspections, discussed below under Statutorily Exempt Public Meetings, information gathering and investigative activities of a governing body are subject to the law. If the requirements of the law would unduly hamper an investigation, the body could direct members to make individual reports to the governing body as discussed above under Quorum Requirements.
If a quorum of a governing body gathers to discuss matters outside its jurisdiction, it is not "meeting" within the purview of the Public Meetings Law. In making this determination, the focus typically will be on the authority granted to the particular governing body and any written policies or directives governing that authority.
Purely social gatherings of the members of a governing body are not covered by the law. The Court of Appeals held that social gatherings of a school board, at which members sometimes discussed "what's going on at the schools," did not violate the Public Meetings Law. The purpose of the meeting triggers the requirements of the law. However, a purpose to deliberate on any matter of official policy or administration may arise during a social gathering and lead to a violation. Members constituting a quorum must avoid any discussions of official business during such a gathering. And, they should be aware that some citizens may perceive social gatherings as merely a subterfuge for avoiding the Public Meetings Law.
Governing bodies sometimes want to have retreats or goal-setting sessions. These types of meetings are nearly always subject to the Public Meetings Law because the governing body is deliberating toward a decision on official business or gathering information for making a decision. For example, members of a commission may wish to have an informal, long-range planning session to help guide (in general terms) the future priorities of the commission. Because the discussion at such a session is very likely to lay the foundation for subsequent decisions, whether a decision on which general issues to pursue over the next year or a decision on how to approach a particular issue, it would be subject to the meetings law. Even an informal "get together" between a state commission and state legislators or the Governor would be subject to all of the requirements of the meetings law (notice, minutes, etc.), if a quorum of the commission discusses matters that are within the authority granted to that body. It does not matter that the discussion is "informal" or that no decisions are made; it is still a "meeting" for purposes of the Public Meetings Law.
Whether a governing body's training sessions are subject to the Public Meetings Law will depend on whether any substantive issues are discussed. For example, a governing body may have a training on improving personal interaction among its members. If that training is carefully structured to avoid any discussion of official business, and no such discussion occurs, the training would not be subject to the meetings law. This is a very sensitive area, however, and public bodies should contact their legal counsel for advice.
II.C.1.c. Electronic Communication
The Public Meetings Law expressly recognizes that meetings may be conducted by telephonic conference calls or "other electronic communication." Such meetings are subject to the Public Meetings Law. ORS 192.670(1).
Notice and opportunity for public access must be provided when meetings are conducted by electronic means. For nonexecutive session meetings held by telephone or other electronic means of communication, the public must be provided at least one place where its members may "listen" to the meeting by speakers or other devices. ORS 192.670(2). Special accommodations may be necessary to ensure accessibility for persons with disabilities. See discussion below of Accessibility to Persons with Disabilities. The media must be provided access to such facilities when executive sessions are conducted electronically, unless the executive sessions are held under ORS 192.660(2)(d) (to deliberate with persons designated by the governing body to carry on labor negotiations) or ORS 332.061 (hearing concerning expulsion of minor student from public elementary or secondary school, or pertaining to examination of student's confidential medical records).
State and local governing bodies generally recognize that the Public Meetings Law imposes public access requirements on official telephonic meetings. Governing bodies also must comply with those requirements when their members use more sophisticated means of electronic communication in lieu of face-to-face official meetings. For example, communications between and among a quorum of members of a governing body convening on electronically-linked personal computers are subject to the Public Meetings Law if the communications constitute a decision or deliberation toward a decision for which a quorum is required, or the gathering of information on which to deliberate.
II.C.2. Statutorily Exempt Public Meetings
The definition of "meeting" under ORS 192.610(5) expressly excludes an on-site inspection of any project or program or a gathering of any national, regional or state association to which the public body or its members belong.
ORS 192.690(1) and (2) exempt the following proceedings from the Public Meetings Law requirements:
meetings of the state lawyers assistance committee or personal and practice management assistance committees operating under ORS 9.568;
meetings of medical peer review committees under ORS 441.055;
meetings of county multidisciplinary child abuse teams that review child abuse cases under ORS 418.747;
meetings of child fatality review teams that review child fatality cases under ORS 418.785;
any judicial proceedings;
deliberations of the Board of Parole or the Psychiatric Security Review Board;
deliberations of state agencies in contested case hearings under ORS chapter 183;
review by the Workers' Compensation Board or Employment Appeals Board of similar hearings on contested cases;
meetings of the Energy Facility Siting Council to review security programs;
meetings of the Oregon Health and Science University Board of Directors or subcommittee regarding:
candidates for president of the university, or
sensitive business, financial or commercial matters of the university not customarily provided to competitors related to financings, mergers, acquisitions or joint ventures or related to the sale or other disposition of, or substantial change in use of, significant real or personal property, or related to health system strategies;
meetings of Oregon Health and Science University faculty or staff committees; and
mediation conducted pursuant to the agricultural mediation service program.
The exemption of "deliberations" of specified agencies does not remove the entire meeting from the law's coverage. For instance, when the Board of Parole gathers information in order to deliberate and then deliberates at the same meeting, the information-gathering portion of the meeting is subject to the law's requirements. Therefore, although state board or commission "deliberations" in contested case hearings under the Administrative Procedures Act are exempt from the meetings law, the information-gathering portions of those hearings and the final decision of the body must be conducted in compliance with the meetings law. However, the information-gathering portion of contested case hearings may be otherwise exempted by statute.
Note that a state agency contested case proceeding conducted by a single hearings officer is not subject to the Public Meetings Law, because a single hearings officer is not a "governing body." The right of the public to attend such contested case proceedings depends on provisions of law outside the Public Meetings Law.
Local government officials should note, however, that the Public Meetings Law exemption provided in ORS 192.690(1) for state agency contested case hearings does not apply to hearings conducted by local governing bodies, even though those local government hearings may be remarkably similar to state agency contested case proceedings.
II.D. Requirements of the Law
The Public Meetings Law requires that public notice be given of the time and place of meetings. This requirement applies to regular, special and emergency meetings as those terms are used in ORS 192.640. The public notice requirements apply to any "meeting" of a "governing body" subject to the law, including committees, subcommittees and advisory groups. See discussion above of Governing Bodies and of Meetings. A governing body's notice must be reasonably calculated to provide actual notice to the persons and the media that have stated in writing that they wish to be notified of every meeting.
If a meeting will consist only of an executive session, notice still must be given to the members of the governing body, to the general public and to news media that have requested notice. The notice also must state the specific legal provision authorizing the executive session. ORS 192.640(2).
Notices for meetings that will include both an executive session and a nonexecutive session should give notice of both and state the statutory authority for the executive session.
To assist the public body in satisfying the accessibility requirements of ORS 192.630(5) and the Americans with Disabilities Act, the notice should provide the name of a person and telephone number (including TTY number) at the public body to contact to make a request for an interpreter for the hearing impaired or for other communication aids. See App B for a sample meeting notice that includes such information. As an alternative, public bodies that know their audience is likely to require a sign language interpreter or other communication aids and services should simply make those services available and so state in their notice.
The Public Meetings Law requires that the notice of any meeting "include a list of the principal subjects anticipated to be considered at the meeting." ORS 192.640(1). This list should be specific enough to permit members of the public to recognize the matters in which they are interested. This requirement ordinarily would be met by dissemination of an agenda. The agenda need not go into detail about subjects scheduled for discussion or action, but it should be sufficiently descriptive so that interested persons will get an accurate picture of the agenda topics. For example, "public works contract" probably is not a sufficient description when the governing body intends to let a contract for demolition of a landmark building.
The Public 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, including news media, of the nature of the more important issues ("principal subjects") coming before the body. And the governing body may take up additional "principal subjects" arising too late to be mentioned in the notice. See ORS 192.640(1) (listing of principal subjects "shall not limit the ability of a governing body to consider additional subjects"). But, if an executive session is being held, the discussion must be limited to the topic(s) listed in the statutory provision(s) identified as authority for the executive session, ORS 192.640(2). Of course, if the subject matter is governed by the rulemaking requirements of the Administrative Procedures Act (ORS chapter 183), the notice requirements of that statute must be met.
The goal of notice for any meeting is two-fold: to provide general notice to the public at large and to provide actual notice to specifically interested persons. The following are suggested methods of meeting the notice requirements for the three types of meetings addressed in the Public Meetings Law:
Press Releases ― Press releases should be given to the appropriate publications and news services. The following list of publications and news services is commonly used.
- Wire Service ― Associated Press. Notices directed to this service at its main offices at the Press Room, State Capitol Bldg., Salem, Oregon 97301 (Phone (503) 363-5358; Fax (503) 363-9502) or 121 S.W. Salmon Street, Suite 1450, Portland, Oregon 97204-2924 (Phone (503) 228-2169; Fax (503) 228-5514), will reach the service. In other areas of the state, notices directed to subscribing news media should reach the service.
- Local Media Representatives ― If a meeting involves matters that affect a particular geographic area, press releases should be sent to the local media.
- Trade Papers, Special Interest Publications and Professional Journals ― Agencies regulating matters affecting trades, occupations, professions and special interest groups that have regularly scheduled publications directed to affected persons should provide these publications with notices of the agencies' public meetings.
Paid display advertising is not required. A governing body is not required to ensure that the release is published. News media requesting notice of meetings must be given notice.
Mailing Lists ― Agencies maintaining mailing lists of licensees or other persons or groups for notice purposes, either as a regular practice or under the requirements of ORS 183.335(8), should mail or fax notices of regular meetings to persons on those lists.
Interested Persons ― If a governing body is aware of persons having a special interest in a particular action, those persons generally should be notified, unless doing so would be unduly burdensome or expensive.
Notice Boards ― Some smaller communities have a designated area or bulletin board for posting notices. Governing bodies may want to post notices of meetings in such areas.
II.D.1.a. Regularly Scheduled Meetings
The notice for a regular meeting must be reasonably calculated to give actual notice of the time and place for the meeting "to interested persons including news media which have requested notice." ORS 192.640(1).
II.D.1.b. Special Meetings
Special meetings require at least 24 hours' notice. ORS 192.640(3). As with regular meetings, press releases should be issued or phone calls made to the wire services and other media. In addition, subject to a rule of reasonableness, governing bodies should notify interested persons either by mail, facsimile or telephone. News media requesting notice must be notified.
II.D.1.c. Emergency Meetings
An "emergency meeting" is a special meeting called on less than 24 hours' notice. The governing body must be able to point to some reason why the meeting could not be delayed to allow at least 24 hours' notice. An "actual emergency" must exist, and the minutes of the meeting must describe the emergency justifying less than 24 hours' notice. ORS 192.640(3). The law requires that "such notice as is appropriate to the circumstances" be given for emergency meetings. The governing body must attempt to contact the media and other interested persons to inform them of the meeting. Generally, such contacts would be by telephone or facsimile.
The Oregon Court of Appeals has indicated that it will scrutinize closely any claim of an "actual emergency." Any claimed "actual 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." Nor do the work schedules of board members provide justification for an emergency meeting. The court noted:
An actual emergency, within the contemplation of the statute, must be dictated by events and cannot be predicated solely on the convenience or inconvenience of members of the governing body.
Sample meeting notices are found in App B.
II.D.2. Space and Location
For any meeting, the governing body should consider the probable public attendance and should meet where there is sufficient room for that expected attendance. If the regular meeting room is adequate for the usual attendance, a governing body probably is not required to seek larger quarters for a meeting that unexpectedly attracts an overflow crowd, but the governing body may take reasonable steps to accommodate the unexpected attendance.
II.D.2.a. Geographic Location
Meetings of the governing body of a public body must be held within the geographic boundaries of the area over which the public body has jurisdiction, at its administrative headquarters or at "the other nearest practical location." Id. These requirements are alternatives, which were added to deal with some small districts that maintain administrative offices, sometimes without meeting facilities, outside the boundaries of the district. If the meeting is held within the geographic boundaries over which the body has jurisdiction, the meeting need not be held at, or conveniently near, administrative headquarters. For example, a school board is free to rotate the location of its meetings among schools in its district. A joint meeting of 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. Id. If one or more governing bodies are meeting with the elected officials of one or more federally recognized Oregon Indian tribes, the meeting must be held within the geographic boundaries over which one of the bodies or one of the tribes has jurisdiction, or at the nearest practical location. Id.
These rules do not apply in the case of an actual emergency requiring immediate action. Additionally, the law allows governing bodies to hold "training sessions" outside their jurisdiction, as long as no deliberations toward a decision are involved. ORS 192.630(4).
II.D.2.b. Nondiscriminatory Site
A governing body may not hold a meeting at any place where discrimination on the basis of race, color, creed, sex, sexual orientation, national origin, age or disability is practiced. However, the fact that organizations with restricted membership hold meetings at the place does not restrict its use by a public body if use of the place by a restricted membership organization is not the primary purpose of the place or its predominate use. ORS 192.630(3).
II.D.3. Accessibility to Persons with Disabilities
ORS 192.630(5)(a) provides:
It is discrimination on the basis of disability for a governing body of a public body to meet in a place inaccessible to persons with disabilities, or, upon request of a person who is deaf or hard of hearing, to fail to make a good faith effort to have an interpreter for persons who are deaf or hard of hearing provided at a regularly scheduled meeting. The sole remedy for discrimination on the basis of disability shall be as provided in ORS 192.680.
This statute imposes two requirements. First, meetings subject to the Public Meetings Law 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 deaf or hard-of-hearing persons. A deaf or hard-of-hearing person requesting an interpreter must give the governing body at least 48 hours' notice of the request, and provide the name of the requester, sign language preference and provide any other relevant information the governing body may request. ORS 192.630(5)(b). If a governing body holds a meeting on less than 48 hours' notice, it shall make a reasonable effort to have an interpreter present, but the requirement for an interpreter does not apply to emergency meetings under this law. ORS 192.630(5)(c). "Good faith effort" to obtain the services of an interpreter includes, but is not limited to, contacting the Oregon Department of Human Services or another state or local agency that maintains a list of qualified interpreters and arranging for the referral of one or more such persons to provide interpreter services. ORS 192.630(5)(e).
The sole remedy for violation of ORS 192.630(5)(a) is found in ORS 192.680. See discussion below on Enforcement.
The Americans with Disabilities Act may impose requirements beyond state law. The ADA requires public bodies to ensure that their communications with persons with disabilities are as effective as communications with others. For deaf or hard-of-hearing individuals who do not use sign language, other means of communication, such as assistive listening devices, may be necessary. If the meeting is held by electronic means, the needs of persons with vision or hearing impairments may need to be considered. Also, if written materials will be used during the public meeting, the governing body must make the material available, when requested by individuals with vision impairments, in a form usable to them, such as large print, Braille or audiotapes. A public body cannot charge a person with a disability to cover the cost of providing such additional aids and services. Remedies for violation of the ADA are not limited to the state law provisions of ORS 192.680. 
II.D.4. Public Attendance
The Public Meetings Law is a public attendance law, not a public participation law. Under the Public Meetings Law, governing body meetings are open to the public except as otherwise provided by law. ORS 192.630(1). The right of public attendance guaranteed by the Public Meetings Law does not include the right to participate by public testimony or comment. In fact, the Public Meetings Law expressly mentions public participation in only two situations: an opportunity for "public comment" on the employment of a public officer, ORS 192.660(7)(d)(C), and an opportunity for "public comment" on standards to be used in hiring a chief executive officer, ORS 192.660(7)(d)(D).
Other statutes, rules, charters, ordinances, and bylaws outside the Public Meetings Law may require governing bodies to hear public testimony or comment on certain matters. But in the absence of such a requirement, a governing body may conduct a meeting without any public participation. Governing bodies voluntarily may allow limited public participation at their meetings.
II.D.5. Control of Meetings
The presiding officer 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 to be a 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.
This authority extends to control over equipment such as cameras, tape recorders and microphones, but only to the extent of reasonable regulation. We have concluded that members of the public cannot be prohibited from unobtrusively recording the proceedings of a public meeting. We believe the logic supporting the public's right to make an audio record of a meeting also extends to video recording, subject to reasonable regulation to the extent necessary to prevent disruption of the meeting. Some concern has been expressed that criminal law might prohibit the recording of public meetings. But the criminal law prohibition against electronically recording conversations without the consent of participants in the conversation expressly does not apply to recording "[p]ublic or semipublic meetings such as hearings before governmental or quasi-governmental bodies."
It is questionable whether a governing body may exclude a member of the public because the person engaged in misconduct at a previous public meeting. It is possible to obtain an injunction against a person who habitually has been disruptive, but an arrest and prosecution for trespass or disorderly conduct on the occasion of the subsequent disruption would be a simpler and probably more effective procedure. In case of an announced threat to disrupt a controversial meeting, it would be permissible to hold the meeting in one room from which the public is excluded, and to allow the public to view and hear the meeting by television in another room.
Smoking is banned at public meetings. ORS 192.710. Although ORS 192.710 was not enacted as part of the Public Meetings Law, that statute provides that no person shall smoke or carry any lighted cigar, cigarette, pipe or other lighted smoking instrument in a room where a public meeting is being held or is to continue after a recess. The meeting is deemed to have started at the time the agenda or meeting notice indicates it is to commence, regardless of the time the meeting actually begins. Violation of this statute is punishable by a $10 fine. ORS 192.990. Presumably, enforcement would require a peace officer to issue a citation.
The smoking ban applies to any regular or special meeting or hearing of a public body "to exercise or advise in the exercise of any power of government," in a building or room rented, leased or owned by the state or by a county, city or other political subdivision. There is no quorum requirement. It is not clear whether an executive session is a public meeting for purposes of this statute. However, if the governing body is to reconvene after leaving the meeting room for an executive session, the governing body is probably in a "recess" during which smoking is prohibited in the meeting room.
When a public meeting is held at a location that is not "rented, leased or owned" by the state or a political subdivision, such as a hotel meeting room where no separate charge is made for the room, the smoking ban of ORS 192.710 does not apply. However, other laws prohibiting smoking except in designated areas may apply.
The person presiding will avoid embarrassment to members of the public and the governing body by reminding them of the no-smoking rule at the beginning of the meeting.
All official actions by governing 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 of the governing body may require that the votes of each member be recorded. ORS 192.650(1)(c). Written ballots are not prohibited, but each ballot must identify the member voting and the vote must be announced. Secret ballots are prohibited. The state law supersedes and nullifies any local government charter authorization or requirement for a secret ballot. See App C for a discussion of voting and secret ballots.
A governing body's failure to record a vote is not, in and of itself, grounds 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 have performed their duties.
II.D.7. Minutes and Recordkeeping
The Public Meetings Law requires that the governing body of a public body provide for sound, video or digital recording or written minutes of its meetings. ORS 192.650(1). The record of a meeting, whether preserved in written minutes or a sound, video or digital recording, shall include at least the following information:
motions, proposals, resolutions, orders, ordinances and measures proposed and their disposition;
results of all votes and, except for public bodies consisting of more than 25 members unless requested by a member of that body, the vote of each member by name;
the substance of any discussion on any matter; and
subject to the Public Records Law, ORS 192.410 to 192.505, a reference to any document discussed at the meeting. (Such reference does not change the status of the document under the Public Records Law. ORS 192.650(3).)
Written minutes need not be a verbatim transcript and a sound, video or digital recording is not required to contain a full recording of the meeting, except as otherwise provided by law. Whatever means of recording used must give a "a true reflection of the matters discussed at the meeting and the views of the participants." ORS 192.650(1). See App B for sample minutes.
The Public Meetings Law requires that written minutes or a sound, video or digital recording of a meeting be made available to the public "within a reasonable time after the meeting." ORS 192.650(1). If written minutes are prepared, they cannot be withheld from the public merely because they will not be approved until the next meeting of the governing body. If minutes have not been approved, they may be so identified. In any event, any completed minutes or sound, video or digital recordings are public records subject to disclosure under the Public Records Law. Consistent with the Public Records Law fee provision, discussed in Part I of this manual, a public body may charge a person a fee for preparing a transcript from a sound, video or digital recording. ORS 192.650(4).
These recordkeeping requirements apply to executive sessions, including the option of keeping a record in the form of either written minutes or a sound, videotape or digital recording. ORS 192.650(2). A governing body is not required to transcribe a sound, videotape or digital recording of an executive session unless otherwise provided by law, and if disclosure of material in the minutes or other recording of an executive session would be inconsistent with the purpose for which the executive session was held under ORS 192.660, the material may be withheld from disclosure. ORS 192.650(2). Also, the written minutes of an executive session held under ORS 332.061 (expulsion of a minor student from public school or consideration of a student's confidential medical records) shall contain only the information not excluded under ORS 332.061(2). The news media have no statutory right of access to minutes or other recordings of executive sessions beyond that of the general public.
We assume that a governing body generally should be able to make a sound, video or digital recording of a meeting available to the public within a few days following the meeting. However, we are told that a requirement that written minutes be available within a few days following a meeting is impractical even for a governing body with substantial staff, because such a body may meet in longer sessions and more often than other bodies, and consequently the preparation of minutes takes up to three weeks in the usual course of business. This practice arguably is within the "reasonable time" allowed by the statute, but a reviewing court may reach a different conclusion.
The Oregon Court of Appeals has construed ORS 192.650 to require minutes to be preserved for a reasonable time. The court concluded that, in the absence of evidence that a longer time is required, one year is a reasonable time to preserve minutes. Accordingly, we recommend that, to safely comply with the law, public bodies preserve minutes or audio, video or digital records for at least one year, and longer if there is evidence that a longer period is necessary. Minutes and audio, video or digital recordings also are "public records" under ORS 192.005(5), the definition for purposes of the public records retention law. Therefore, public bodies also should determine whether the records retention schedule established by the State Archivist pursuant to ORS 192.105 requires them to preserve minutes or other recordings for longer than one year.
Minutes and records available to the public must be made available to persons with disabilities in a form usable by them, such as large print, Braille or audiotape. However, the public body is entitled to consider the resources available for use in the funding and operation of the program from which the records are sought in responding to a request for alternative format, and may conclude that compliance with the request would result in a fundamental alteration of the nature of the program or in undue financial or administrative burdens. Public bodies should consult with legal counsel if they are uncertain of their obligation to honor the requester's choice.
A public body may not charge a person with a disability to cover the costs of providing records in an alternative print form, although the public body may charge a fee for all other "actual costs" that may be recovered under the Public Records Law just as it would for any other requester.
II.E. Executive (Closed) Sessions
The Public Meetings Law authorizes governing bodies to meet in executive session in certain limited situations. ORS 192.660. An "executive session" is defined as "any meeting or part of a meeting of a governing body which is closed to certain persons for deliberation on certain matters." ORS 192.610(2) (emphasis added). See discussion below of Enforcement, Civil Penalties, for violation of the executive session provisions.
Executive sessions should not be confused with meetings that are exempt from the Public Meetings Law altogether. An executive session is a type of public meeting and must conform to all applicable provisions of the Public Meetings Law. Conversely, exempt meetings need not. See discussion under Statutorily Exempt Public Meetings, above.
The authority to go into executive session does not relieve a governing body of its duty to comply with other requirements of the Public Meetings Law. A checklist of items for a governing body to consider when planning to meet in executive session is set out at App B.
II.E.1. Permissible Purposes of Executive Sessions
A governing body may hold an open session even when the law permits it to hold an executive session. However, the governing body has the authority to hold closed sessions regarding the following (discussed in the order set forth in ORS 192.660):
II.E.1.a. Employment of Public Officers, Employees and Agents
A governing body may hold an executive session to consider the employment of a public officer, employee, staff member or individual agent, if the body has satisfied certain prerequisites. ORS 192.660(2)(a).
This provision applies to employment of the chief executive officer, other public officers, employees, and staff members of any public body only if the vacancy for the position has been advertised, regular procedures for hiring have been adopted, and, for a public officer, the public has had opportunity to comment on the employment. ORS 192.660(7)(d)(A)-(C). The standards, criteria and policy directives to be used in hiring the chief executive officer must be adopted at a meeting open to the public at which the public has had an opportunity to comment. ORS 192.660(7)(d)(D).
ORS 192.660(2)(a) does not apply to consideration of general employment policies, but relates only to the initial hiring of specific individuals. We have concluded that this provision does not allow discussion of an officer's salary to be conducted in executive session in connection with the hiring of that officer. This provision also does not apply to filling a vacancy in an elective office, or on any public committee, commission or other advisory group. ORS 192.660(7)(a), (b).
II.E.1.b. Discipline of Public Officers and Employees
A governing body may hold an executive session to consider the dismissal or disciplining of a public officer, employee, staff member or individual agent, or hear complaints or charges brought against such a person, if that person does not request an open hearing. ORS 192.660(2)(b).
In order to permit the affected person to request an open hearing, that person must have sufficient advance notice of the purpose of the meeting and the right to choose whether he or she wants the meeting to be in executive session or in an open session. Although the provision requires an "open hearing" if the person involved so requests, we do not construe this provision to require an adversarial "hearing," but only an open session. The affected person need not be present and has no right to postpone the "hearing" to permit an attorney to attend or to have a formal "hearing" unless another law, a contract or a collective bargaining agreement provides those rights.
Regarding discipline of public officers and employees, we note the partial symmetry between the Public Meetings Law and the Public Records Law. Under the Public Meetings Law, a governing body may discuss discipline of an employee in executive session. Under the Public Records Law, records of a personnel discipline action and supporting materials and documents are conditionally exempt from disclosure once a disciplinary sanction has been imposed. ORS 192.501(12).
II.E.1.c. Public Hospital Medical Staff
Executive sessions are authorized for considering matters pertaining to the function of the medical staff of a public hospital licensed under ORS chapter 441. This authorization includes consideration of all matters relating to medical competency in the hospital. ORS 192.660(2)(c).
Meetings of medical peer review committees held under ORS 441.055 are also exempt from the requirements of the Public Meetings Law. ORS 192.690(1). See discussion of Statutorily Exempt Meetings above. Thus, two facially inconsistent sections coexist in the Public Meetings Law: ORS 192.660(2)(c), which permits peer review committees to meet in executive session (and thus necessarily leaves those committees subject to the Public Meetings Law); and ORS 192.690(1), exempting peer review committees from the law's coverage. We conclude that the later-enacted exemption in ORS 192.690(1) impliedly repealed that portion of ORS 192.660(2)(c) concerning peer review committees, and that such committees are entirely exempt from the Public Meetings Law.
II.E.1.d. Labor Negotiator Consultations
A governing body may hold an executive session "[t]o conduct deliberations with persons designated by the governing body to carry on labor negotiations." ORS 192.660(2)(d). This subsection allows a governing body to confer in executive session with its labor negotiator. The media may be excluded from such a session. ORS 192.660(4). However, ORS 192.660(2)(d) does not authorize a governing body to meet in executive session with the employees' negotiator. The authority of a governing body to conduct labor negotiations with the employees' negotiator in executive session is found in another subsection of ORS 192.660. See discussion of ORS 192.660(3) (Labor Negotiations) below.
II.E.1.e. Real Property Transactions
A governing body may go into executive session to deliberate with persons designated by the governing body to negotiate real property transactions. ORS 192.660(2)(e). Real property transactions are not limited to the purchase or sale of real property. For example, negotiations for a long-term lease transaction undoubtedly would be included within this provision.
The executive session must be limited to discussions of negotiations regarding specific real property and may not include discussion of a public body's long-term space needs or general policies concerning lease sites.
II.E.1.f. Exempt Public Records
A governing body may go into executive session to consider "information or records that are exempt by law from public inspection." ORS 192.660(2)(f). The "law" that exempts records from public inspection is the Public Records Law, specifically ORS 192.445, 192.447, 192.496, 192.501 and 192.502, discussed above in Part I of this manual. Unless a record is exempt from disclosure under these statutes, a governing body may not consider the record in executive session under ORS 192.660(2)(f). The 2003 Legislative Assembly amended ORS 192.660(2)(f) by adding "information" to "records" in the basis for going into executive session. Or Laws 2003, ch 524, § 4. It is unclear whether this addition substantively changed the provision, but it appears that "information" existing outside of a "record," i.e., information that is orally conveyed, would rarely be "exempt by law from public inspection."
The authority granted governing bodies in ORS 192.660(2)(f) to use executive sessions to consider records exempt from public inspection is coextensive with the Public Records Law exemptions. Note that several of the other Public Meetings Law provisions authorizing executive sessions already correspond with specific exemptions of the Public Records Law. For example, as noted above in our discussion of ORS 192.660(2)(b) (Employee Discipline), the Public Meetings Law authorizes governing bodies to consider employee disciplinary matters in closed session, and the Public Records Law conditionally exempts public records of completed personnel disciplinary actions from public inspection in ORS 192.501(12).
Whether a particular record is exempt from public disclosure, and may therefore be considered in execution session, may depend on statutes outside but incorporated within the records law through two "catchall" exemptions ― ORS 192.502(8) and (9). For example, if a record of a public body's communication with its lawyer is privileged under ORS 40.225, the record would be exempt from disclosure under the Public Records Law, pursuant to ORS 192.502(9). Consequently, a governing body could consider the record in executive session under the authority of ORS 192.660(2)(f). See further discussion below of executive sessions involving legal matters, under the heading "Legal Counsel."
However, a governing body has the cart before the horse if it attempts to withhold disclosure of a public record merely because the record was discussed, or might be discussed, in an executive session. The body's authority to refuse to disclose a record depends on provisions of the Public Records Law, not of the Public Meetings Law. The only part of the meetings law that addresses a public records disclosure issue is ORS 192.650(2), which provides that material in the minutes or other record of an executive session may be "excluded from disclosure" to the extent disclosure would be inconsistent with the purpose for which the executive session was initially authorized to be held. See discussion of Minutes and Recordkeeping above. This restriction in the Public Meetings Law is incorporated into the Public Records Law by ORS 192.502(9).
II.E.1.g. Trade Negotiations
Preliminary negotiations involving matters of trade or commerce in which the governing body is competing with governing bodies in other states or nations may be conducted in executive session. ORS 192.660(2)(g). Use of this provision is permissible when the governing body knows or has good reason to believe it is in competition with other governing bodies or nations regarding the matter to be discussed.
II.E.1.h. Legal Counsel
Executive sessions are appropriate for consultation with counsel concerning legal rights and duties regarding current litigation or litigation likely to be filed. ORS 192.660(2)(h). This authorization parallels the Public Records Law exemption for records pertaining to litigation, ORS 192.501(1). Other discussions with counsel generally must be held in open session.
We believe that ORS 192.660(2)(h) is intended to put public bodies on an equal footing with private litigants. This means that the governing body should be able to engage in a private and candid discussion with counsel about the legal issues raised by the litigation. Such discussion may include not only procedural options, but also substantive analysis of the legal merits, risks and ramifications of the litigation.
Our interpretation is consistent with the language of ORS 192.660(2)(h), which uses the fairly broad phrase "legal rights and duties." It is also bolstered by sensible public policies that we believe were part of the legislature's intent in enacting the subsection. First, if a governing body and its counsel were compelled to discuss their litigation position in public, it could result in denying the public body its fair day in court. Any weaknesses in the public body's position would undoubtedly be brought to the court's attention and could affect the court's objectivity. Second, our experience suggests that private and candid consultation with a governing body promotes quick resolution of inadvisable litigation. In executive session, counsel is in a better position to provide the frank advice that the governing body's case is weak and that the litigation should be dismissed or settled.
Furthermore, under ORS 192.660(2)(h), the discussion in executive session may proceed even to the point at which the governing body has reached an informal consensus as to its course of action. As discussed below under Final Decision Prohibition, ORS 192.660(6) guarantees that the results of any consensus will be made public by the requirement that any final decision be made in open session.
We noted earlier that ORS 192.660(2)(f) (consideration of information or records exempt from public inspection) may provide authority for an executive session with legal counsel in cases when ORS 192.660(2)(h) would not apply. As noted above, written legal advice from counsel is privileged information under ORS 40.225. Consequently, it is exempt from disclosure under ORS 192.502(9) and a proper subject of an executive session under ORS 192.660(2)(f). Accordingly, if a governing body takes appropriate steps, it may use an executive session to discuss any legal matter of a confidential nature absent the existence or likelihood of litigation.
Some might argue that this interpretation is an open invitation to evade the purposes of the Public Meetings Law, but we do not intend it as such. When a need for confidential discussion of legal issues arises, even in the absence of an immediate threat of litigation, we see no reason why a governing body should not take advantage of the attorney-client privilege for this purpose. Because it is unclear whether the addition of "information" to ORS 192.660(2)(f) broadens the scope of the provision to cover oral attorney-client communication, a governing body should not cite ORS 192.660(2)(f) as a basis for going into executive session to discuss legal issues that are not presented in a written record of an attorney-client communication without first seeking advice from its legal counsel. The governing body should return to public session for any discussion of policy.
When a governing body holds an executive session under ORS 192.660(2)(h), the governing body must exclude any member of the news media if the member of the news media is a party to the litigation to be discussed or is an employee, agent or contractor of a news media organization that is a party to the litigation. ORS 192.660(5).
II.E.1.i. Performance Evaluations of Public Officers and Employees
A governing body may hold an executive session "[t]o review and evaluate" the job performance of a chief executive officer, other officers, employees, and staff, if the person whose performance is being reviewed and evaluated does not request an "open hearing." ORS 192.660(2)(i). We have concluded that ORS 192.660(2)(i) does not allow discussion of an officer's salary to be conducted in executive session in connection with the job performance evaluation of that officer.
We interpret the term "open hearing," as used in ORS 192.660(2)(i), in the same way we construe that term as used in ORS 192.660(2)(b) (open hearing of employee discipline matters on employee's request). In order to permit the affected person to request an "open hearing," the governing body must give sufficient advance notice to the person of his or her right to decide whether to require that the performance evaluation be conducted in open session.
"Open hearing" in this context means "open session." The affected person need not be present and has no right to postpone the "hearing" in order to attend or to permit an attorney to attend. Nor does the affected person have a right, under the Public Meetings Law, to have an attorney present evidence or to have a formal adversarial hearing. Other law, a contract or a collective bargaining agreement, however, may provide such rights.
Disclosure of a record of a public officer's or employee's performance evaluation generally is not an unreasonable invasion of privacy for purposes of exemption from the Public Records Law. This is in contrast to a record of the disciplining of a public officer or employee, which is conditionally exempt from disclosure under another provision of the records law, ORS 192.501(12). Notwithstanding Public Records Law requirements, under the Public Meetings Law a governing body may go into executive session to discuss an officer's or employee's performance. Also, the minutes of such an executive session may be withheld from disclosure under the Public Meetings Law, ORS 192.650(2), discussed above under Minutes and Recordkeeping, even though some of the underlying personnel records may not be exempt from disclosure.
ORS 192.660(8) provides that a governing body may not use an executive session held for purposes of evaluating a chief executive officer or other officer, employee or staff member "to conduct a general evaluation of an agency goal, objective or operation or any directive to personnel concerning agency goals, objectives, operations or programs."
II.E.1.j. Public Investments
An executive session may be called "[t]o carry on negotiations under ORS chapter 293 with private persons or businesses regarding proposed acquisition, exchange or liquidation of public investments." ORS 192.660(2)(j). This is the counterpart to the exemption from disclosure of public records relating to proposed investments of state funds. ORS 192.502(13). However, the authority to negotiate with private parties in executive session does not permit the governing body to take final action or to make a final decision in executive session. ORS 192.660(6).
II.E.1.k. Health Professional Licensee Investigation
A health professional regulatory board may go into executive session to consider information obtained as part of an investigation of licensee or applicant conduct. ORS 192.660(2)(k). Under ORS 676.175, the board must keep confidential and not disclose any part of its executive session meeting minutes or other recording that contains confidential information, except as permitted under the terms of ORS 676.175. Confidential information must be protected even when the board convenes in public session for purposes of deciding whether or not to issue a notice of intent to impose a disciplinary sanction on a licensee or to deny or to approve an application for licensure. As a matter of general practice, boards should refer to the case by number and not disclose the name of the licensee or applicant or any other information that would permit the licensee or applicant to be identified. If the board votes not to issue a notice of intent to impose a disciplinary sanction against a licensee or applicant, the board is required to disclose investigatory information it obtained if the person requesting it demonstrates by clear and convincing evidence that the public interest in disclosure outweighs other interests in nondisclosure. ORS 676.175(2). If the board votes to issue a notice of intent to impose a disciplinary sanction against a licensee or applicant, upon written request of the licensee or applicant, the board is required to disclose all investigatory information it obtained, except as otherwise specified in ORS 676.175(3).
II.E.1.l. Landscape Architect Registrant Investigation
The State Landscape Architect Board, or an advisory committee to the board, may go into executive session to consider information obtained as part of an investigation of registrant or applicant conduct. ORS 192.660(2)(L). The confidentiality of executive session minutes, transcripts and recordings related to the substance and disposition of the matter investigated is controlled by the terms of ORS 671.338. The board or advisory committee may permit public officials and members of the press to attend the executive session. Those public officials and members of the press are prohibited from disclosing information discussed in the session until the information ceases to be confidential under ORS 671.338. In open session, the board may discuss matters that are being reviewed by an advisory committee, but may not disclose information considered confidential under ORS 671.338.
II.E.1.m. Security Programs
A governing body may go into executive session to "discuss information about review or approval of programs relating to the security" of a number of specified structures, activities, and materials relevant to the operation of the state's infrastructure. The structures, activities and materials about which an executive session may be held to discuss review or approval of security programs are as follows:
A nuclear-powered thermal power plant or nuclear installation;
Transportation of radioactive material derived from or destined for a nuclear-fueled thermal power plant or nuclear installation;
Generation, storage or conveyance of: electricity; gas in liquefied or gaseous form; hazardous substances as defined in ORS 453.005(7)(a), (b) and (d); petroleum products; sewage; or water;
Telecommunications systems, including cellular, wireless or radio systems; or
Data transmissions by whatever means provided.
II.E.1.n. Labor Negotiations
ORS 192.660(3) requires labor negotiations to be conducted in open meetings unless the negotiators for both sides request that the negotiations be conducted in executive session. Such executive sessions, if held, are not subject to the notification requirements of ORS 192.640.
As noted above, this subsection, rather than ORS 192.660(2)(d), authorizes governing bodies to engage in labor negotiations with employees' representatives in executive session. Note also that a public body's labor negotiations with employees' representatives are not subject to the Public Meetings Law at all if the negotiations are conducted for the governing body by an individual retained by the governing body. This is because the individual labor negotiator is neither a public body nor a governing body. In these circumstances, the public and the media cannot invoke the Public Meetings Law as a basis for attending negotiation sessions.
Labor negotiations take place only between employee representatives, such as labor organizations, and employers. Normally, designated representatives of both parties meet at the bargaining table, in which circumstance, the meeting is not being held by the governing body, and the Public Meetings Law does not apply, as discussed above.
II.E.1.o. Other Executive Session Statutes
The Public Meetings Law list of matters appropriate for executive session is not exclusive. Statutes outside the meetings law authorize governing bodies to hold executive or closed sessions, sometimes without cross-referencing the Public Meetings Law. For example, ORS 332.061 authorizes school boards to consider student expulsion and confidential medical records of students in executive session, notwithstanding the Public Meetings Law. ORS 342.176 authorizes the Teacher Standards and Practices Commission to receive staff reports and to make findings on preliminary investigations of alleged teacher misconduct while in executive session. And ORS 1.425(2) authorizes the Commission on Judicial Fitness and Disability to hold closed hearings on allegations of judicial disability, without reference to the Public Meetings Law.
II.E.2. Final Decision Prohibition
ORS 192.660(6) provides: "No executive session may be held for the purpose of taking any final action or making any final decision." It is quite likely that the governing body may reach a consensus in executive session, and its members of course will know of that consensus. The purpose of the "final decision" requirement is to allow the public to know the result of the discussions. Taking a formal vote in open session satisfies that requirement, even if the public vote merely confirms a tentative decision reach in an executive session.
The statute does not define "final action" or "final decision." Many governmental matters require that a series of official decisions be made or that a series of actions be taken prior to ultimate resolution of an issue of policy or administration. But a need to make further decisions or to take further action does not necessarily make any particular decision or action less final. Whether a governing body has reached a stage when it must make a final decision in public often is a question that must be resolved on a case-by-case basis, but the governing body should choose a public decision unless a final public decision clearly is not required.
A governing body attempting to determine in executive session whether it has reached a point of "final" decision or action should consider two criteria: the nature of the proposed decision or action, and the purpose of the statutory authorization for the particular executive session.
Unless it is reasonably likely that the type of decision or action proposed can be made in executive session, the governing body should return to open session. For example, it is highly unlikely that any decision authorizing expenditure of funds could be made in executive session. But if examination of the nature of the proposed decision or action does not resolve the "finality" question, the governing body should consider whether public announcement of the proposed decision or action actually would frustrate the policy underlying the particular statutory authorization for the executive session. Unless the governing body reasonably can conclude that public announcement of a proposed decision seriously will compromise further actions that must be taken, the body should return to open session to announce the decision.
For example, the process of hiring a chief executive officer usually involves a series of governing body decisions and actions. If specific statutory prerequisites have been met, the governing body may conduct much of the hiring process in executive session under the authority of ORS 192.660(2)(a). See discussion above of Employment of Public Officers and Employees. This statute manifests legislative policy to allow governing bodies to conduct uninhibited discussions in the personnel hiring process and to enable governing bodies to attract and recruit qualified persons who would not apply for a chief executive officer position if their candidacy immediately would become known. In this context, it is clear that a decision to reduce a slate of 30 candidates to 10, or to three "finalists" for further consideration, is not a "final action" or "final decision." However, a decision to spend $2,500 to bring the finalists in for interviews would be a final decision. A decision to negotiate with a "first choice" candidate, with salary and other conditions of employment remaining unsettled, is not a final decision. A decision to formally offer the position to one candidate is a final decision, even before acceptance.
A governing body cannot evade the "final action" requirement by using coded terms. For example, a formal public vote to extend an offer of appointment to "Ms. A" would be a clear violation of the law's requirements, unless a statute outside of the Public Meetings Law prohibits disclosure of the individual's name. ORS 676.175(1).
A governing body meeting in executive session must return to public session before taking final action. ORS 192.660(6). This requirement cannot be circumvented by simply announcing, in executive session, that the meeting is now open, and then proceeding without affording interested persons a chance to attend. If a public meeting will be held again after the executive session, the desirable practice would be to announce, before the executive session, a specific time for returning to open session. Otherwise, reasonable means must be used to give actual notice to interested persons that the meeting is again a public meeting. If the executive session has been short, it may be sufficient to open the door and announce to persons in the hall that the meeting is open to the public. But clearly, returning to an unscheduled and unannounced "open session," for which those attending the previous session have no notice and no opportunity to attend, does not comply with the law.
The formal decision, of course, can be postponed to the next regular or duly announced public meeting. In fact, this procedure is necessary for any executive session that is not held in conjunction with a public session, unless the notice of executive session also informs the public and interested persons of the time and place at which the session will be opened to make the formal decision.
Finally, statutes outside the Public Meetings Law effectively may modify the requirement that no final action be taken in executive session. In labor negotiations covered by the Public Employees Collective Bargaining Act, an offer made by the governing body's negotiator, if accepted by the employees' bargaining representative, is binding and effective, and an agreement must be signed even if the governing body has not formally approved the offer in open session. The governing body then appropriately may ratify the agreement at a subsequent public meeting.
II.E.3. Method of Convening Executive Session
A governing body may hold a meeting consisting of only an executive session. The notice requirements are the same as those for any other meeting. ORS 192.640. See discussion of Notice above. In addition, the notice must cite to the statutory authority for the executive session. ORS 192.640(2). An example of this type of notice is found at App B.
An executive session may also be called during a regular, special or emergency meeting for which notice has already been given in accordance with ORS 192.640. The person presiding over the meeting must announce the statutory authority for the executive session before going into executive session. ORS 192.660(1). A sample script for use in calling an executive session during a public meeting is found at App B.
II.E.4. Media Representation at Executive Session
For many years, the common practice of many public bodies was to permit members of the media to attend executive sessions, subject to the understanding that the media representatives would not report certain sensitive matters. The principal purpose of this practice was to provide news representatives the opportunity to obtain, from their attendance at executive sessions, background information that would improve their understanding of final decisions, and consequently, their ability to keep the public better informed.
The Public Meetings Law now expressly provides that representatives of the news media shall be allowed to attend all executive sessions except in two situations: executive sessions involving deliberations with persons designated to carry on labor negotiations, and closed sessions held under ORS 332.061(2) to consider expulsion of an elementary or secondary school student or matters pertaining to a student's confidential medical records. ORS 192.660(4).
When an executive session is held for the purpose of conferring with counsel about current litigation or litigation likely to be filed, the governing body must exclude any member of the news media from attending the executive session if the member of the news media is a party to the litigation to be discussed or is an employee, agent or contractor of a news media organization that is a party to the litigation. ORS 192.660(5).
The governing body may require that specified information not be disclosed. ORS 192.660(4). See Sample Script at App B. The presiding officer should make the specification, or the governing body could do so (or overrule the presiding officer) by motion. Absent any such specification, the entire proceeding may be reported and the purpose for having an executive session may be frustrated. Except in the rarest instances, the governing body at least should allow the general subject of the discussion to be disclosed, and it cannot prevent discussion of the statutory grounds justifying the session. The nondisclosure requirement should be no broader than the public interest requires.
Although we explain above that members of the public may tape record or video record public meetings, we do not believe this is the case with respect to members of the media who attend executive sessions. We believe the presiding officer may require that members of the media not tape record executive session proceedings, in order to decrease the likelihood that information discussed in the executive session will be inadvertently disclosed.
The term "representatives of the news media" is not defined. We have interpreted that term to include news-gathering representatives of institutionalized news media that ordinarily report activities of the body. This interpretation should be expanded to include representatives of media that ordinarily report matters of the nature under consideration by the body.
The advertising manager of a newspaper is not a representative of the newspaper for purposes of this statute, and a periodical containing only hunting and fishing news is not a medium of news about a meeting of a school board. The hunting and fishing periodical presumably would be a news medium, under the statute, for purposes of a meeting of the Fish and Wildlife Commission.
Current technologies make it easy to disseminate information to a potentially broad audience. Bloggers and others using these technologies sometimes seek to attend executive sessions, asserting that they are "representatives of the news media." A decision whether such an individual should be permitted to attend an executive session must be made on a case-by-case basis as no clear definition of "news media" exists. Public bodies should consult with their legal counsel when faced with this type of request.
The Public Meetings Law provides no sanction to enforce the requirement that specified information not be disclosed by a news representative. Any penalty for publication would raise freedom of press and speech questions. The experience of more than three decades has been that the media, by and large, honor the nondisclosure requirement. Ultimately, "enforcement" of the nondisclosure requirement depends upon cooperation between public officials and the media. This cooperation advances the purposes of both government and the news media.
A news reporter has no obligation to refrain from disclosing information gathered at an executive session if the governing body fails to specify that certain information is not for publication. Media representatives may wish, in a spirit of cooperation, to inquire whether a governing body's failure to specify was an oversight. A reporter is under no obligation to keep confidential any information the reporter independently gathers as the result of leads obtained in an executive session. A news reporter has a clear right to disclose any matter covered in an executive session that is not properly within the scope of the announced statutory authorization of the executive session. Indeed, the presence of news media representatives at executive sessions probably encourages compliance with statutory restrictions on the holding of closed sessions.
It is questionable whether a news media representative can be barred from future executive sessions for improperly revealing information obtained at a prior closed session. In a case called to our attention, a reporter and all other representatives of the employing newspaper were threatened with exclusion from future executive sessions for reporting deliberations on a matter that was probably not a proper subject of an executive session. Exclusion or the threat of exclusion in such a case is clearly impermissible.
It is certainly reasonable for a governing body to request a news medium not to assign a particular representative to cover meetings of the body if the representative has irresponsibly violated a clearly valid nondisclosure requirement. An outright ban on a particular individual may be enforceable in such a case, because the statutory purposes will be met by allowing another representative (and representatives of other news media) to attend. However, we can say no more than it is possible that a ban would be enforced in these circumstances. We see no other basis for a governing body to dictate the assignments of a news medium representative. A particular representative certainly could not be banned from meetings simply because the governing body disliked the reports made by the representative.
5. Other Persons Permitted to Attend Executive Sessions
An executive session is by definition a meeting "which is closed to certain persons." ORS 192.610(2) (emphasis added). It follows that the governing body may permit other persons to attend. Generally, an executive session is closed to all except members of the governing body, persons reporting to it on the subject of the executive session or otherwise involved, and news media representatives. However, nothing prohibits the governing body from permitting other specified persons to attend. Statutes outside of the Public Meetings Law specifically allow health professional regulatory boards to permit public officials and members of the press to attend executive sessions in which the board considers information it has obtained in the course of an investigation of a licensee or applicant. The attending individuals should be reminded, however, that they may not disclose such information to any other members of the public. The fact that certain persons have been allowed to attend is not grounds for the general public to attend the executive session.
II.F. Enforcement of the Law
As noted above, the Attorney General and district attorneys have no enforcement role under the Public Meetings Law. Education and persuasion are by far the best tools available to obtain compliance. Most violations of the Public Meetings Law occur because the governing body is not familiar with the requirements of the law. Quoting the provisions of the law to the governing body often results in future compliance. Most governing bodies that are aware of the law make a good faith effort to comply.
There are, however, cases in which governing bodies continue to violate the law and can be neither persuaded nor educated. Even in such a case, quoting the legal provisions that create potential personal liability of governing body members for attorneys' fees, ORS 192.680(3) and (4), or that authorize the imposition of civil penalties for violation of the executive session provisions of the law, ORS 192.685, is worth trying before suit is filed. But in some cases only litigation will suffice.
II.F.1. Injunctive or Declaratory Actions
Anyone affected by a decision of a governing body of a public body may file a lawsuit to require compliance with, or prevent violations of, the Public Meetings Law by members of the governing body. ORS 192.680(2). An action may be brought even before any decision affecting the plaintiff has been made. Among those with standing to sue are "representatives of the press," and "any person who might be affected by a decision that might be made."
A suit also may be filed to determine whether the Public Meetings Law applies to meetings or decisions of the governing body. ORS 192.680(2). A suit filed for either purpose must be brought in the circuit court of the county in which the governing body ordinarily meets. Id. It is necessary to engage a private attorney, or to appear pro se (for oneself).
An action under the Public Meetings Law is not moot solely because a governing body has ceased its improper meeting practices. The governing body's past illegal actions remain in violation of the law. Under ORS 192.680(5), any suit brought under the Public Meetings Law must be commenced within 60 days following the date that the decision becomes public record.
In the case of unintentional or nonwillful violations of the Public Meetings Law, voiding a decision is a permissible but not mandatory remedy. ORS 192.680(1). However, ORS 192.680(1) permits a governing body that makes a decision in violation of the Public Meetings Law to reinstate the decision while in compliance with the law. This rule is consistent with court decisions in other states holding that a later meeting in compliance with an open meetings law can cure earlier open meetings law violations. If the governing body reinstates an earlier decision in that manner, the decision shall not be voided. A decision that is reinstated is effective from the date of its initial adoption. ORS 192.680(1). We construe the reinstatement provision to require the governing body not merely to conduct a perfunctory rerun, but to substantially reconsider the issues.
If a subcommittee holds a meeting in violation of the Public Meetings Law at which it decides on a recommendation to a public body, that violation by itself does not render the public body's subsequent decision on the recommendation void. By making its decision in full compliance with the Public Meetings Law, the public body would cure the subcommittee's prior meetings law violation (although the body's rules or bylaws might preclude such action).
However, reinstatement will not prevent a court from voiding a governing body's 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." ORS 192.680(3). In those circumstances, a court shall void the decision "unless other equitable relief is available." Id. In any case, "[t]he court may order such equitable relief as it deems appropriate in the circumstances." ORS 192.680(3).
Before 1989, ORS 192.680(1) provided, "A decision shall not be voided if other equitable relief is available." That language has been deleted. Nonetheless, we construe ORS 192.680 as a whole to retain that principle for unintentional or nonwillful violations. A contrary conclusion would create an anomaly in the law, by which the availability of other equitable relief would bar a court from voiding a decision resulting from an intentional or willful violation of the Public Meetings Law, but not from a merely careless violation. We do not believe that the language of the Public Meetings Law compels that result, or that the legislature intended so to provide. Voiding a governing body's decision thus remains a remedy of last resort under the Public Meetings Law, even after the 1989 amendments.
By so providing, the legislature appears to have balanced the policy of openness in governmental decision-making against other important public policies. For instance, voiding a governing body's decision often may be viewed as contrary to the public interest in that the remedy may undermine the stability of governmental decision-making, as well as harm innocent persons who have acted in reliance on that decision. Consequently, courts likely will tend only infrequently to invoke that remedy.
If, however, the violation involves an aggravating factor, such as a conflict of interest violation, that factor, plus the violation of the Public Meetings Law, may lead to judicial voiding of the action. In any case in which a violation is found, the court may enjoin future violations or it may simply declare what the law requires. Future violations after the injunction may lead to contempt of court penalties for violating a court order.
In formulating a remedy under the Public Meetings Law, a court will be guided only by the purposes of the Public Meetings Law rather than the effect of a violation on an unrelated proceeding. Thus, for instance, when a school district's decision in violation of the Public Meetings Law potentially affected the status of a union's representation petition, the court in the Public Meetings Law proceeding held that any remedy must not be directed at the status of that petition.
In the discretion of the court, a successful plaintiff may be awarded reasonable attorney fees. ORS 192.680(3).
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 governing body, that member is personally liable to the governing body or public for the amount of attorney fees paid by the body to a successful applicant. ORS 192.680(4).
Except for the imposition of civil penalties for violation of the executive session provisions (see discussion below), a lawsuit under ORS 192.680 is the exclusive remedy for a violation of the Public Meetings Law. ORS 192.680(6). Because of this exclusivity, the proof requirements in any action are established by the Public Meetings Law, not any other law.
A person who files a legal action under ORS 192.680(1) is required to establish, by sufficient evidence, that a governing body violated the Public Meetings Law. The governing body then has the burden to prove "that its acts in deliberating toward a decision complied with the law." ORS 192.695.
II.F.2. Civil Penalties
Notwithstanding the exclusive remedy provisions of ORS 192.680, complaints that public officials have violated the executive session provisions of the law may be made to the Oregon Government Ethics Commission for review and investigation as provided by ORS 244.260. ORS 192.685(1). The commission may interview witnesses, review minutes and other records and may obtain other information pertaining to executive sessions of the governing body of a public body for purposes of determining whether a violation occurred. ORS 192.685(2).
The commission may impose civil penalties not to exceed $1,000 for violating any provision of ORS 192.660, the executive session provisions. However, if the violation occurred as a result of the governing body of a public body acting upon the advice of the public body's legal counsel, a civil penalty may not be imposed.
If the commission chooses not to pursue a complaint at any time before conclusion of a contested case hearing, the public official against whom the complaint was brought may be entitled to reimbursement of reasonable costs and attorney fees. They would be paid by the public body to which the official's governing body has authority to make recommendations or for which the official's governing body has authority to make decisions. ORS 192.685(3). A public official who prevails following a contested case hearing shall, upon petition to the Circuit Court for Marion County, be awarded reasonable attorney fees at the conclusion of the contested case or on appeal to be paid from the General Fund.