What Is a Head or Poll Tax and Why Should You Care?

Cities obtain funding for most of their operating budgets from property taxes, and most city officials are well aware of the constitutional limitations placed on these taxes.  In these challenging economic times, cities across Oregon have contemplated the use of alternative forms of taxes to assist with funding specific programs.  Such taxes, however, come with their own constitutional limitations, and the prohibition on head and poll taxes is one such limitation cities must keep in mind when considering whether to enact these alternative forms of taxation. Background – Poll and Head Taxes

Article IX, section 1a of the Oregon Constitution provides that “[n]o poll or head tax shall be levied or collected in Oregon.”  Oregon courts have explained that a poll or head tax is a fixed tax assessed on each eligible person.  See City of Portland v. Cook, 170 Or. App. 245, 250-51 (2000) citing Oregon City v. Moore, 30 Or. 215, 217, (1896) (describing “a poll tax of $2 upon each and every person liable therefor”); Salem v. Marion County, 25 Or. 449, 451-52, (1894) (same).   In other words, a head or poll tax is imposed and collected on a per capita basis.

The prohibition in Article IX, section 1a was added to the Oregon Constitution in 1910.  The amendment's supporters explained that a poll or head tax “is unjust not only because it is collected from very few of the men who are supposed to pay, but also because it bears so unequally on men in proportion to their ability to pay.” See id. citing Voters' Pamphlet, General Election, November 8, 1910, at 24-25.7  The measure's supporters further  explained, “[t]he laborer supporting a family on $2 a day pays exactly the same poll tax as the corporation manager with a salary of ten thousand dollars a year.” Id.  Accordingly, Oregon courts have concluded that taxes that are imposed on a per capita basis violate the constitutional prohibition on head and poll taxes.

The Decision

Last November, voters in Portland overwhelmingly enacted the City’s Arts Education and Access Income Tax (Arts Tax), which imposes $35 per person tax to help Portland-area elementary schools provide funding for arts teachers as well as provide grants to local art institutions.  A Portland resident, George Wittemyer, sued the City claiming the imposition of the Arts Tax was an unconstitutional violation of the prohibition on imposing and collecting head and poll taxes.

In Wittemyer v. City of Portland, a Multnomah County Circuit Court judge ruled that the Arts Tax was not a head or poll tax and accordingly was not prohibited by Article IX, section 1a.  Circuit Court Judge Kelly Skye ruled that "the Arts Tax is not a Poll or Head tax because it is not assessed per capita.”  Rather, as Judge Skye explained “[i]n assessing the tax, the City considers a person’s income in three distinct provisions:  the tax applies only to (1) income exceeding $1,000, (2) non-exempt income sources, and (3) income of individuals residing in households with income above the federal poverty guidelines.”  Due to these exemptions as well as the fact that the Arts Tax applies only to taxpayers 18 years of age or older, Judge Skye concluded that “the practical effect of the tax is to tax income of certain City residents within a certain income range” and accordingly, the Arts Tax is not a per capita tax prohibited by Article IX, section 1a.

The Impact

Although only a circuit court decision that does not have the same precedential effect as a decision by the Oregon Court of Appeals or Supreme Court, Wittemyer v. City of Portland, provides important guidance to cities that might be considering the imposition and collection of alternative forms of taxation.  In order to avoid claims that such taxes are prohibited head or poll taxes, cities must work closely with their city attorneys and finance directors to draft a tax that is not imposed on a per capita basis but rather on specific criteria.  Following the guidance provided by Judge Skye’s decision is a helpful first step in that process.

Ten Tips to Tame Unruly Behavior at Council Meetings

On the best nights, council meetings run smoothly, the council’s work is completed efficiently and everyone goes home early and happy.  Such nights are not guaranteed and more often than we desire, controversial issues and unruly behavior derail an otherwise well planned council meeting.  Even the most experienced presiding officer will admit that he or she loses control of a meeting from time to time.  So what can you as an elected official do to help keep meetings under control?  Below are ten tips to keep in mind to tame unruly behavior at council meetings. 1.  Understand the Law.  State law, the city charter, city ordinances, council rules and even the United States and Oregon constitutions all play a role in how councils conduct their meetings.  For example, although Oregon’s public meeting laws require you to allow the public to observe council meetings, these statutes do not require you to permit public participation.  Conversely, other state statutes, such as the land use hearing procedures in Chapter 197, require you to permit public participation during your meetings.  In addition, your city charter, ordinances and/or council rules may require you to permit public participation during your meeting on various topics.  Understanding when public participation is required is the first step in being able to effectively control council meetings.

If public participation is part of your council meeting, the Oregon Attorney General has advised that “the presiding officer may regulate the order and length of appearances and limit appearances to presentations of relevant points.”  See Oregon Attorney General Public Records and Meetings Manual. The Attorney General has further explained that “[a]ny 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.”  Id.  Based on recent judicial decisions, however, cities should not eject an individual from a council meeting or otherwise prohibit free speech related activities unless those actions actually disrupt the meeting.  See Norse v. City of Santa Cruz, 629 F3d 966, 976 (9th Cir. 2010); Acosta v. City of Costa Mesa, _ F.3d _ (9th Cir. 2013).

Whether public participation is permitted or not, courts have explained that the free speech provisions of the United States and Oregon constitutions protect the behavior of citizens at council meetings.  For example, the Ninth Circuit of the U.S. Court of Appeals has expressly stated that the free speech rights of audience members continue to exist even when the public comment portion of the meeting has ended.  Thus, in Norse, the City had to prove to a jury that a nazi salute made by a member of the audience actually disrupted a meeting in order to justify the ejection of that audience member.  Understanding when and how these free speech rights apply to public participation is another step in being able to effectively control council meetings.

2. Have Rules and Procedures in Place.  Making sure that you have rules in place that clearly define the behavior expected at council meetings is also an important step in being able to effectively control council meetings.  In order to avoid being overly broad, and therefore violate the free speech provisions of the Oregon and United States constitutions, such rules should prohibit only actual disruptive behavior.  See, e.g., Acosta, _ F.3d _.  In addition, cities should publicize the rules and procedures and make them widely available to the public.  You should work closely with your city attorney to develop such rules.

3. Use Speaker Cards or Sign-Up Sheets.  Requiring speaker cards or sign-up sheets permits the presiding officer to know how many people wish to speak on a particular topic and create a plan for handling the public comment.  For example, knowing how many people wish to speak on a topic permits the presiding officer to limit the amount of time that each person receives, if necessary, before the public comment period begins.  Likewise, these tools prevent groups of individuals fighting for position to be the next in line to address the council, which thereby limits tension in the audience as everyone can remain seated comfortably until they are called upon to speak.  The use of speaker cards or sign-up sheets also permits the presiding officer to call groups to the podium together and request, if the group is amenable, to have a spokesperson speak on behalf of the group.  Finally, using speaker cards and sign-up sheets is an easy policy to rely upon to request that members of the public refrain from making statements or outbursts from their seats.

4. Explain Your Procedures.  Take the time at the beginning of a meeting and/or before a heated agenda item to explain your procedures.  Nothing derails an otherwise effective meeting better than confusion.  Explaining to the public what the council will be doing, when it will take public comment, how people will be called upon to provide public comment, and how long each individual will have to speak will help to keep confusion at a minimum and keep the meeting on track.

5. Be Consistent.  Whatever rules or procedures you establish, you need to make sure to enforce them consistently and uniformly.  Not only will an inconsistent application of your rules create potential legal liability for your city, it will cause the public to question your motives and integrity, which will undoubtedly lead to unruly behavior.

6. Be Respectful and Pay Attention.  Citizens who attend council meetings, like you, are taking time away from their families, work or other endeavors to participate in the governing process of their city.  Whether you agree with an individual’s position or not, being respectful by listening to what the individual has to say and paying attention while they are speaking is important.  Members of the public often feel as if they have wasted their time and that their thoughts and ideas have fell on deaf ears when members of the council check email, engage in side conversations or otherwise preoccupy themselves during public comment.  The level of frustration that emerges when this occurs often results in unruly behavior and disruptions to council meetings.

It is also important to remain respectful even when members of the public are not.  As an elected official you have likely already developed some tough skin, and there is no better time to rely on that attribute then during council meetings.  If you permit yourself to be drawn into arguments by responding to personal attacks, you will become a major contributor to the unruly behavior that causes disruption of meetings.  Rather than debating these issues, it is better to let the presiding officer or another member of the council respond by informing the public that personal attacks are not welcomed, appreciated or helpful.  In addition, when confronted with such situations, it is better to focus on the behavior, not the person.  By explaining to the audience the type of behavior you desire rather than attacking the individual who is being disrespectful, you will likely be able to diffuse an otherwise contentious situation.

7. Wait to ask or answer questions or debate points.  Public comment is usually limited to a set amount of time.  You can easily contribute to unruly behavior when you interrupt an individual providing public comment before that time has expired in order to ask or answer a question or to debate a point that the individual has made.  For example, members of the public rightly feel that the time taken to answer your question or the time you took speaking should not count against their allotted time.  Because of this, the presiding officer must attempt to determine how much additional time to give the speaker, and when individuals disagree with the presiding officer’s determination, unruly behavior often results.  You avoid this issue entirely by waiting until the speaker’s time has expired to ask or answer questions or to make a counterpoint to what was just said.  Furthermore, you should keep in mind that public comment is just that – an opportunity for the public to share their opinions with the council.  It is not a designated time for the council to answer the public’s questions.  Allowing the presiding officer to explain this to the audience and asking staff to respond to the questions at a later time will avoid the unruly behavior that often results when the council engages in debates with members of the public.

8. Lead by Example.  We often forget that sitting in front of an audience means that we are constantly on display.  How you act during a meeting while you are on display indicates to the audience how you expect them to act.  If you are constantly interrupting or talking over your fellow councilors, raising your voice unnecessarily or otherwise demonstrating disrespectful behavior, you are encouraging such behavior from the audience.

9. Take Breaks.  We see it in sporting activities all the time.  Just as one team gains momentum and the game appears to be slipping away, the other team calls a time out.  Quite often, the short time out permits the other team to regroup and get back into the game.  This same philosophy works well at council meetings.  There is nothing wrong with taking a five minute break to let people cool down and to allow the council to regroup.  In addition, during the break, you will have an opportunity to work with your staff including your city recorder, city manager, city attorney or police chief to determine the best manner to keep the meeting under control.

10. Attend Training Opportunities.  The more experience you have, the easier it is to resolve and avoid situations that create unruly behavior.  The League of Oregon Cities has many opportunities for you to gain experience through their Oregon Local Leadership Institute classes.  In addition, your city staff is likely able and ready to provide the council with training about these issues.  A great tool you might want to use in such trainings is the council bloopers video the League recently distributed to all members.

As the saying goes, an ounce of prevention is worth a pound of cure.  Following the tips above and taking other steps to run an organized meeting will stop must unruly behavior before it even starts.

Strange Bedfellows: Nondisclosure Agreements and the Public Records Act

A recent decision from the Oregon Court of Appeals, Pfizer Inc. v. Oregon Department of Justice, confronted how a nondisclosure agreement entered into by a government entity and a private party affected the government’s ability to respond to a public records request governed by Oregon’s Public Records Act (ORS 192.410 et. seq.). Background – The Public Records Act

The Oregon Public Records Act (“Act”) was enacted in 1973 and has been amended numerous times during the last 40 years.  Under the Act, the records of public entities such as cities must be made available for inspection and copying to any person, regardless of the person’s identity, motive, or need.  There are, however, numerous exemptions that permit a public agency to withhold a document from inspection and copying.  In most circumstances, a public agency may disclose a record even if an exemption would otherwise permit the agency to withhold the record from inspection and copying.  But, there are some situations in which the law mandates that a record of a public agency remain confidential.

The basic principle behind the Public Records Act is that records should be disclosed whenever possible.  To that end, courts narrowly construe exemptions under the Act.  In other words, courts generally view the Act in favor of disclosure, unless the law expressly prohibits disclosure.

The Decision

In 2003 the Oregon Department of Justice led a multistate investigation to determine whether Pfizer Inc. and one if its subsidiaries, Pharmacia Corporation, were marketing some of their products in violation of various consumer protection laws.  One aspect of the investigation related to whether the companies were marketing certain products for “off label uses” – uses of drugs that had not been approved by the Food and Drug Administration.

To determine whether illegal marketing practices had occurred, during its investigation, the Department of Justice requested several exhibits from the companies.  To facilitate the acquisition of the exhibits, the Department of Justice entered into a detailed confidentiality agreement with the companies that limited the disclosure of several the requested exhibits.  Among numerous other provisions, the disclosure agreement provided that the obligations to keep the exhibits confidential are “subject to the provisions of each State’s respective data practices act, public record act, freedom of information act or similar state law regarding the maintenance and disclosure of documents and information supplied to such State’s Attorney General.”

After the parties had reached a settlement agreement, an attorney from California and two reporters filed a public records request with the Department of Justice to receive copies of the exhibits governed by the confidentiality agreement.  The first question confronted by the court was whether the confidentiality agreement obligated the Department of Justice to withhold the exhibits to the extent that they are exempt from disclosure under the Act.

The Court of Appeals concluded that the confidentiality agreement did in fact obligate the Department of Justice to withhold exhibits produced by the companies to the extent that the exhibits were exempt from disclosure under the Act.  The court reasoned that the contractual obligations agreed to by the Department of Justice required the government to keep the exhibits confidential.  However, the court also reasoned that the reference to the public records act quoted above modified and limited this obligation so that it applied only if the exhibits were covered by an exemption under the Act.  In other words, the Department of Justice contractually waived its ability to disclose the exhibits if an exemption applied.

After reaching its conclusion on this preliminary question, the court proceeded to analyze each of the exhibits to determine whether an exemption applied.  After a detailed analysis, the court concluded that several exhibits were exempt from disclosure as trade secrets under the Act.  The court also concluded that several other exhibits were not exempt from disclosure as trade secrets, documents submitted in confidence or documents covered by the attorney work product doctrine mostly due to the fact that those documents were already publicly available by other means.

The Impact

Confidentiality agreements have always been tricky legal documents to navigate for cities.  The Pfizer decision demonstrates that if cities determine to enter into such agreements that they should be sure to include language in the agreements that the confidentiality obligations are subject to the Public Records Act.  Furthermore, both cities and the private parties with whom such agreements are being entered into should understand that the ability to keep a document confidential is dependent upon whether an exemption exists under the Act.



Secretary of State Publishes New Political Activities Manual

The Secretary of State’s Office has updated its manual on restrictions on political campaigning by public employees ORS 260.432.  Under ORS 260.432, public employees may not use their work time to support or oppose measures, candidates, recalls, political committees or petitions. The manual, which was previously published in 2008, outlines when and how the law applies.

It is important to remember that the law does not specify any amount of work time that may be used before a violation occurs, so a public employee may be found in violation even though they used a minimal amount of work time.  In addition, an elected official or any other employer of a public employee violates the law by requiring or directing public employees to prepare or distribute advocacy materials.

 One significant change in the manual is that the Secretary of State’s Office will no longer review ballot titles and explanatory statements.  According to the manual, “[b]ecause the impartiality requirements and ballot title challenge [and explanatory statement]  process[es] in ORS chapter 250 are distinct from the requirements of ORS 260.432, this office will not review ballot titles [or explanatory statements] for impartiality. Public employees who draft ballot titles [and explanatory statements] as part of their job duties will not be found in violation of ORS 260.432 for drafting a ballot title [or explanatory statement].”

 Notwithstanding this new position, the Secretary of State’s Office still advises that “[a]ny materials produced by public employees while on the job during work hours must be impartial.”  The Secretary of State’s Office will therefore continue to make itself to review documents prior to publication to ensure compliance with ORS 260.432.  If the document is submitted to the Secretary of State’s Office and approved in writing, there will be no violation of ORS 260.432 as long as what is printed does not deviate from the approved version. The Secretary of State’s Office has stated that any review process will be completed within five business days of the submission of the document.  Local governments may submit documents for review to:

Oregon Secretary of State, Elections Division

Phone: 503-986-1518

Fax: 503-373-7414

Email: elections.sos@state.or.us

Do You Want to Pass an Ordinance Regulating the Distribution of Phone Books? Not so fast says the Ninth Circuit…

Every year local governments observe an annual ritual – the door-to-door delivery of phone books, which quickly get dumped into the recycling bin.  In today’s Internet age, phone books seem to be becoming a thing of the past.  Our fingers may still be doing the walking, but they have relocated to a new neighborhood!

 Because of this annual ritual, several local jurisdictions passed ordinances that attempted to regulate the distribution of phone books.  Phone book companies, as you might expect, disliked these ordinances and challenged them in federal court.  Last month, the Ninth Circuit Court of Appeals, the federal appellate district to which Oregon belongs, agreed with the phone book companies and held that phone books are speech that have full protection under the First Amendment.

In Dex Media West, Inc. V. Seattle, the ordinance in question was a 2010 City of Seattle law that required publishers of phone books to obtain permits and pay a fee for each directory distributed in the city. It also established an opt-out registry, through which residents could decline to receive phone books. The publishers were required by the law to advertise the availability of the opt-out registry on the front covers of their phone books.  The fees paid by the publishers were intended to cover the cost of operating and promoting the opt-out registry.

 In examining the ordinance, the Ninth Circuit explained that “[a]lthough portions of the directories are obviously commercial in nature, the books contain more than that, and we conclude that the directories are entitled to the full protection of the First Amendment.”  Because of this level of protection, the ordinance was subject to the legal analysis known as strict scrutiny and was struck down by the Court as a violation of the First Amendment.

 This case is an important reminder for local governments about the far reach of free speech protections under the United States and Oregon constitutions.  Local governments are encouraged to work closely with us here at BEH before enacting regulations that might implicate free speech rights.

No protection for medical marijuana use under the ADA

The Ninth Circuit Court of Appeals recently affirmed the denial of a preliminary injunction sought by medical marijuana users who claimed that two California cities that were raiding their medical marijuana dispensaries were violating the users rights under the Americans with Disabilities Act (ADA).

In James v. City of Costa Mesa, plaintiffs brought suit under the ADA claiming that each plaintiff is “a qualified person with a disability as defined in the ADA.”  Under Title II of the ADA, public entities “must not intentionally or on a disparate impact basis discriminate against the disabled individual’s meaningful access to public services.”  Plaintiffs alleged that city raids and closures of medical marijuana dispensaries interfered with their access to the medical marijuana they use to manage their illnesses, thus, the defendant cities have effectively prevented them from accessing public services in violation of Title II.

The Court affirmed the lower court’s ruling, denying plaintiff’s plea for injunctive relief because, in the Court’s opinion, the ADA does not protect against discrimination on the basis of medical marijuana use permitted under state law; the use must be authorized by federal law.  The Court’s opinion recognized that plaintiffs are “gravely ill” and sympathized with “their right to live comfortably,” but stated that Congress has made it clear that the ADA defines “illegal drug use” by reference to federal, not state law, and that federal law does not authorize the use of marijuana for medical purposes.  The Court said, “We therefore necessarily conclude that the plaintiffs’ medical marijuana use is not protected by the ADA.”

Plaintiffs argued that “illegal use of drugs” – in this case marijuana – was excepted under the ADA.  Section 12210(d)(1) of the ADA defines “illegal use of drugs” as:

 the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.

 Plaintiffs argued medical use of marijuana falls within one of the exceptions because their use of the illegal drug is supervised by a licensed health care professional.  The cities disagreed with this interpretation and argued that Section 12210 contains a single exception that covers all uses authorized by the Controlled Substances Act (CSA) or other provisions of law.  The Court held that the cities’ interpretation of Section 12210 was correct, and commented that the plaintiff’s interpretation was a substantial departure from the federal policy that does not extend federal protections to federally prohibited, but state-authorized, medical use of marijuana.  The Court found that the cities’ interpretation “not only makes the best sense of the statute’s text and the historical context of its passage, but also is the only interpretation that fully harmonizes the ADA and the CSA.”  Accordingly, doctor-supervised marijuana use is an illegal use of drugs not covered by the ADA’s supervised use exception.

This case demonstrates that although state views on medical marijuana are often contrary to the federal government’s views, and although federal views may be evolving, it is clear that at this point in time federal laws do not recognize marijuana for medicinal purposes and until they do, marijuana used for any purpose under the CSA is an “illegal drug use.”

Individual City Councilors Do Not Have Independent Authority

Linn County Circuit Court recently issued a decision that, although only binding on the parties, has significance for local governments statewide.  The decision directly addresses the question of the scope of an individual city councilor's authority with respect to access to city records and, by extension, other city functions. The question frequently arises when an individual city councilor requests (sometimes demands) access to records that are generally exempt from disclosure, arguing it is necessary for the councilor to make informed policy or budget decisions, or simply by virtue of the councilor’s position on the city council.  At BEH, we have long taken the position that a city council can only act as a whole, and that individual councilors do not have any authority beyond that of a member of the public when it comes to viewing or receiving copies of protected materials.

In this case, the city placed a police officer on administrative leave for work-related misconduct; almost a year later, the officer retired.  Apparently, some time later the Assistant City Manager made a statement to the press that the officer could have been fired had he not retired.  Shortly thereafter, City Councilor Weldon sought copies of the officer's personnel file, tort claim notice, severance agreement and related documents.  The City Manager declined to provide the records and, ultimately, the entire City Council voted to deny Councilor Weldon access to the records.  Weldon then sought a writ of mandamus directing the city to provide him access to the records.

There were a number of peripheral procedural issues, including whether the court had jurisdiction (it does) and whether the City should be a party (it should), but on the core question, the court ruled that "individual city councilors have no authority to take actions or make decisions on behalf of the city. *  *  *  The right of the council to oversee the integral details of municipal government exists only in a majority of the council."  Accordingly, an individual councilor does not have authority to review documents that are protected from disclosure solely by virtue of the person's position on the city council.

While, as noted, the decision is only binding on the parties, the decision is likely to have statewide implications because of the court's extensive opinion.  The court surveyed the history of municipal corporations to determine the scope of an individual councilor's authority vis-a-vis the entire council.  The court’s discussion of the merits begins:  "When settlers from Europe made their way to the American continent . . ."  Clearly, this judge is leaving nothing to chance.  Councilor Weldon argued that he has a fiduciary duty to inspect all records of the municipal corporation in order to determine whether the City Administrator is doing his job.  Surveying over 400 years of U.S. history, the court found no such duty.  Councilor Weldon primarily relied on cases that deal with the rights of minority shareholders in a private corporation, which the court found do not apply to a municipal corporation, for which the corporation's duties are set out in ORS chapters 221 and 222.

It is important to note that this is not directly a case about public records.  Because the case involved a police officer, the city relied on ORS 181.854 (3) which provides:  "A public body may not disclose information about a personnel investigation of a public safety employee of the public body if the investigation does not result in discipline of the employee."  Here, the City and the public safety official reached a settlement, the officer resigned and no discipline was ever taken.  Accordingly, the city was prohibited from disclosing the requested information.

 Nonetheless, the court's reasoning would seem to apply equally to information protected under the public records laws or, for that matter, any time an individual city councilor attempts to direct action by the city or city employee.  The court’s final thought are worth remembering:

 "Finally, the court must address the underlying concern raised by Mr. Weldon.  He says that without oversight by the City Council, government in Lebanon could run amok.  While there may be truth in that assertion, Mr. Weldon must recognize that his position as an elected city official in the City of Lebanon brings with it the mantle of leadership.  This air of authority cannot be sustained by blind pronouncement or show of authority.  It is sustained by purpose, longsuffering, and by persuasion.  Mr. Weldon may well prevail in this matter if he convinces a majority of the council that his position is correct and that additional oversight is necessary.  Mr. Weldon may convince the City Council to call hearings on these matters in executive session.

"If the City Council disagrees, as they have in the past, Mr. Weldon may call for public hearings.  If the people of City of Lebanon agree with him, they may deliver a majority to him at the ballot box.  If the people disagree with Mr. Weldon, they may deliver disappointment to him at the ballot box as well."

Death, Taxes and Annual Statements of Economic Interests

The old saying goes that the only things for certain in life are death and taxes.  Well, for many local government officials in Oregon, you can add the annual verified statement of economic interests (SEI) to that list.  Mostly, it is elected officials, members of planning commissions and the chief administrative officer of a local government, such as the city manager, who must file an SEI.  A list of who is required to file an SEI may be found in ORS 244.050. The Oregon Government Ethics Commission (OGEC) will be sending the 2012 SEI form to local government officials who are required to file an SEI in early March.  SEIs are like your taxes – on the forms you must disclose information regarding the previous calendar year. As such, on your 2012 SEI, you will disclose the economic interests you held between January 1, 2011 and December 31, 2011, even if you didn’t hold office during that entire period.

SEIs must be filed with OGEC.  SEIs that are postmarked on or before the due date will be accepted as filed on the due date.  Although not required, you may wish to send the form to OGEC by certified mail because a certified mail receipt will assure that you will not be penalized if your completed form is lost in the mail. In addition, you might wish make a copy of a completed form and retain it for your records in case your form is lost in the mail.

Filers should keep in mind that the requirement to file an SEI is the personal responsibility of the public official.  A public official who fails to timely file an SEI is subject to civil penalties in the amount of $10 for each of the first 14 days after the filing deadline and $50 for each day thereafter until the aggregate penalty reaches the maximum of $5,000.

More information about the SEI filing requirement can be found on pages 38-40 of OGEC’s guide for government officials and in a FAQ prepared by the League of Oregon Cities.

Amendments to Oregon Attorney General Model Public Contracting Rules Effective Now

Pursuant to Oregon law, the Oregon Attorney General’s office maintains a set of model public contracting rules. Those rules apply to local jurisdictions unless a jurisdiction opts out of some or all of the rules. Oregon law requires the Attorney General’s office to update the rules every two years. The Attorney General’s office proposed a variety of changes to the rules last year that became effective on January 1, 2012. You will find clean and redlined versions of the new rules here. Arguably the biggest changes are to division 48. Division 48 governs construction-related professional services (architects, engineers, surveyors) and related services. HB 3316, which we discussed in a previous blog entry, prompted the division 48 revisions.

We will be reviewing these changes in more detail in the coming weeks and will likely follow-up here with additional observations about the new rules. In addition, BEH will host a workshop for friends and clients in the early part of the new year and one of the topics we will discuss is HB 3316 and qualifications-based contracting at the local level. So stay tuned!

Are Bloggers Considered Media?

We may be a little bit closer to determining if “bloggers” are members of the media for purposes of attending executive sessions under the Oregon Public Meetings Law.  Under ORS 192.660(4), “representatives of the news media” are allowed to attend executive sessions (with the exception of executive sessions held for the purpose of conducting labor negotiations), but may not be allowed to disclose information from the executive session if the governing body so requires.  In recent years, several Oregon municipalities have addressed whether an internet blogger should be allowed to attend an executive session under the media exception.  With no case law on this topic, and little direction from the state, municipalities have independently addressed such situations. A recent case, heard in federal court for the District of Oregon, may help shed some light on this topic.  In Obsidian Finance Group, LLC v. Cox, plaintiffs brought a defamation claim against Crystal Cox, a self-proclaimed “investigative blogger,” for comments she made about defendants in her blog.  The court concluded that the Oregon retraction statutes pertaining to damages for defamatory statements did not apply because these statutes apply only to actions for damages on defamatory statements “published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television, or motion picture.”  Because the statutes do not include internet blogs, the court held that the retraction statutes do not apply to blog postings.

Without any controlling authority on the issue, the court declined to conclude that the defendant in this case was a member of the “media.”  Specifically, the court stated that the defendant failed to provide evidence suggesting she was a journalist because she provided no evidence of:

… (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”

So although this case did not address whether bloggers are members of the media for purposes of executive sessions, it does shed light on potential criteria that municipalities and local governments could use in establishing policies of whether or not to include bloggers as member of the “media” in executive sessions.  As usual, jurisdictions should consult with their legal counsel before establishing any such policy.  In today’s world where anyone can set up a blog and become a “blogger,” local governments who have not already done so should be thinking about how they would handle such situations.

Obsidian Finance Group, LLC v. Cox, 2011 WL 5999334 (D. Or., November 30, 2011)