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."