2021-01-19 PPS School Board Training Session

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District Portland Public Schools
Date 2021-01-19
Time 18:00:00
Venue Virtual/Online
Meeting Type training
Directors Present missing
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Event 1: PPS Board of Education Annual Training Oregon Ethics and Public Meeting Laws - 1/19/21

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tonight's annual training on oregon ethics and public meeting law key issues for public officials uh mike porter is here from miller nash graham and dunn to provide our training and thank you mr porter for being here thank you it's nice to see everyone this evening those those who we can see who didn't run into the zoom issues very very nice to to be with this group tonight and following up last year's session on ethics which we'll cover a little bit tonight was asked to look at best practices for public meetings law as well as oregon ethics law and as this board has discussed and addressed before we it's it's a best practice to look at best practices over using that term especially as those laws relate to transparency as they relate to the public trust and so like we did in december a year over a year ago with oregon ethics law we'll do a refresh on that as i mentioned we also did that with a number of administrators and staff after the board session so the board may have been aware of that at the time but sometime in late january or february ethics issues were addressed with staff that are most likely to run into issues there but i was asked to start with public meetings law i should give the obligatory disclaimer which is on any issue under the statutes regulations and guidance there's always a risk that you can get really into the weeds you could do sometimes a half an hour or an hour on on a pretty minut piece and so this session by its nature will be more about identifying issues some of the key issues practices and way to think about how to manage through those so if we can move to the next slide often in these sessions maybe it's the same old refrain but if it is so be it and that refrain is hey let's remember what is the purpose of this law because often when we get into those weeds and there's something where there might not be a clear answer keeping the purpose of the law in mind can be a helpful guide a barometer of where that decision is going to land and so oregon's public meetings law like the ethics law has a statement on policy the oregon form of government requires an informed public aware of the deliberations and decisions of governing bodies and the information upon which decisions were made it is the intent of the public meetings law that decisions of governing bodies be arrived at openly and the courts will address nuances in the law by referring to the policy and say when in doubt oregon favors the openness of governmental functions now of course there are going to be times where there are other compelling policies that bump into the openness so you could have a personal privacy situation where those interests have to be balanced and you have to evaluate the statutes but the executive session uh exceptions that we'll talk about those address a lot of those areas um but when we're talking about public meetings this is the policy and it's our it's our guiding star so to speak so moving on to the next slide i wanted to put out front a resource that some of you are probably familiar with but perhaps not everyone and that is the oregon attorney general's public records and meetings manual it's linked through this document if that was sent to you but it's easily found through a google search for that for that document and it's it's really a nice outline with discussions in plain english about the scope of the meetings law about the mechanics of the meetings law it's got a nice table of contents so usually pretty easy to find what you're looking for and if you as a public official are in a situation where you're wrestling with something you want to know how to ask the question or what questions to ask it's definitely a resource
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to consider consulting so we'll cover three areas three primary areas tonight because you know time is limited to some decree and again you can get into the weeds a bit on some of these and there will probably be some some hypotheticals and questions that we can talk about uh and those areas are uh what do we mean when we're talking about meetings and to meet and we're going to talk about enforcement and executive session challenges because there are some unique aspects to enforcement that apply specifically to individuals in who who have public roles and who are on boards or entities or committees that are subject to the public meetings rules so let's move forward and our next slide addresses what's really been the topic du jour for public meetings law since about 2015 when a court of appeals case came out addressing the issue of uh when is there a meeting what is to meet and that's because the basics are easy okay a standard board meeting with an agenda it's a public meeting and a board is required to have its meetings in public if they are having a public meeting there is also a prohibition so there's a mandate the mandate is public bodies must meet in public session but there's a mandate and that is that a quorum may not meet so it's a violation of the public meetings law for a quorum to meet and if you are fascinated by the language differences between the word meeting and meat there are many pages of an oregon court of appeals opinion describing the nuances of that language but what it ultimately came down to was that with respect to the prohibition serial communications in other words sequence of communications that follow each other can result in a quorum meeting and if those communications are for the purpose of deliberation or decision making on a matter that would come before the board now it's a difficult situation and the facts of the case i won't get too deep into them but they can be helpful to understand what was going on the there was a question as to whether how a board was going to respond to a public records issue and there were a couple of emails between less than a quorum of the board and then there was allegedly a phone call to another member of the board that would have made it a quorum and so the plaintiff another board member brought a claim and asserted that effectively this quorum met and violated the prohibition of the public meetings law and the court said even though no single email no single phone call involved a quorum there could be a public meetings violation and it described the determinative factors as being a sufficient number of officials involved what they discuss and the purpose is what matters not the time place or manner of those communications now i think you could come up with extreme hypotheticals where the time for example could not result in a violation so if board members speak in january of 2021 about something and again in march of 2022 it's going to be hard to claim that that was the type of meeting that could that that results in a meeting that would violate the prohibition i i try to think of it as is there something on the agenda that's or on the docket so to speak which i use colloquially that's coming up in front of the board that's a matter that concerns the board that's being discussed
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by a quorum and that can run you afoul of the public meeting's law there's some practical implications um avoiding reply to all because you're getting a quorum and the discussion starts especially if it's on a substantive matter it does need to be something that would ultimately be deliberated or come before the board so if you reply to all on whether you would prefer the vegetarian option you're not going to run afoul of the public meetings law but you start getting uh into questions about who a contract who's going to be a contractor on a certain project uh curriculum decisions that are likely to be in front of the board you you can run into problems beware the accidental quorum this is really the lesson from the handy versus lane county case it's the the the game of telephone and you didn't mean for that board member to talk to another board member who talked to another board member all in the course of a day or two and suddenly it's a violation of the public meetings law so you're sort of constantly trying to thoughtfully assess what might become a board decision and how you communicate with this the uh one of the defenses that was raised in the handy case was this is really nuanced and hard and how should board members they shouldn't have to deal with things like this and the the court said well the attorney general's public meetings manual has lots of things that are nuanced and challenging and we think that board members can figure it out it also equated the situation to a social event in which there's a quorum of the board and said at a social event board members have to be aware of what it is that they're talking about unless they want to call a public meeting if a quorum is going to be there and so um that's that was the line the court drew and so they didn't care that this is difficult and does have ambiguities i went to to school uh in south carolina at the university of south carolina for a while and they noticed all of the football games as a public meeting for their board of regents because they knew they were going to be talking about business up there in in their suites and so you know are you doing the public's business uh and if so you just keep that policy in mind and be really thoughtful about where your communications are so hey mike yes please this is andrew um i was just curious i remember when i when i read this decision it's been a little while um it really was sort of based on the language of the statute and and sort of the implications and i mean the reality and you've described it pretty well the appeals court ruling pretty much outlawed what most governments in oregon do right so elected officials talk to one another and they talk to one another in one on one situation sometimes two on one situations um is that case still active because it was an appeals court decision so i wasn't sure if it got appealed to the supreme court and has the legislature considered or taken any action to change because again as i'm remembering i think it was i think it was judge garrett sort of you know was was saying look this is really what the plain reading means the the practical implications are not his job as a judge right so the general um approach is that if this is the representation of the law as it stands it was appealed to the oregon supreme court who effective which effectively punted on the decision of serial communications and then there's another trimet case that alludes to serial communication somewhat endorses at least the concept i am not sure if there has been a legislative activity to address it i thought about that today uh just gosh it'd be nice to get some efforts in this area and i haven't been made specifically aware of any of course the challenge of making efforts in this area is sometimes the politics of it can be well people are trying to shut down work that they're trying to avoid the policy of the public meetings law so but i think there probably are some compromises it is something that if i were a board member and thinking about legislative agendas is it something that that ought to be part of one because of course we have the policy of the open meetings and then we also have the realities of getting the work of entities done and to the extent this can can create a barrier or chill helpful conversation that's a challenge so did it get basically to your question yes yes i thought that was probably the answer which is not a great answer but it is the answer so thank you
00h 15m 00s
that's uh sometimes i feel like that's my life but uh you need to for the moment treat this as the operative operative law let's let's move to a topic that i think there's a relationship here and that's the public body issue what are the public bodies that are subject to this law so in other words we it's for the board members we're the board we understand this going in but the public body question uh flows from this question of quorums and meetings because a public body aside from being specifically districts counties cities it's a body that has the authority to make decisions for a public body on policy or administration or that has the recommendation ability to make a recommendation to that body such as a commission committee subcommittee or advisory group and so you can see that it brings in a swath of entities particularly in larger sophisticated entities that are going to need you know other specific committees doing doing investigative work reporting back to the board those end up being public bodies and are subject to the notice provisions and the other provisions that that we are talking about and we'll talk about the the easiest distinction is if it's reporting to a administrator if this committee is reporting to an administrator for the administrator to make a decision then it is not a public body if it is reporting to the administrator for the administrator to decide what to recommend to the public body then you're going to get into the public body territory while i just had a little power blank where i am and i hope it is just if i go dark uh hopefully uh it will be very brief so so mike this is director constance so on your last point um reminds me of the ruckus that we got into with regard to that that advisory committee on enrollment and transfer a while back like probably six seven eight years ago which led to that distinction between uh advisory to a public body or advisory to a superintendent or advisory to the superintendent who is advising to the public body so did we get any more clarity out of that um episode i i think so because i think that that recited what where the attorney general comes down on this question in the guidance it's consistent with that and what one would anticipate accord interpreting this language uh where it would come down so i think that was a a clarifying moment that fits within the discussion that we're having right now so so we're kind of in the process of taking inventory of our citiz of our public committees so roseanne just a note for us that this is something that we should flag on each of those um most of them don't have charters but if we create charters or those that do have charters let's make sure this is crystal clear um to whom are they are they responsible for advising and and it can get a little more uh complex than that that's a piece of it there's a the courts set out six factors so the entity's origin the nature and function of the body that is assigned and what's performed scope of authority granted nature and level of governmental financial and non-financial support scope of the government control over the entity uh and the status of the entities office officers and employees so i i do think that what we spoke about director consume is the is a nice it's a clearer than multi-factor weighing it's a clearer way to find some distinctions there um but ultimately there probably are always going to be some groups that are at the margins and so those are um those are the factors that are evaluated when assessing those that are at the
00h 20m 00s
margins so when so to your point the reason to make those assessments is because you're going to have uh the requirements of the public meetings law so those are the mechanical requirements of notice note make creating proper notice place there are statutes about where the meeting can and cannot be but also if we move to the that segues into the next topic probably the more challenging issues and those are the executive session challenges and so there are permitted executive sessions held outside of the public's view there are a few that are are very narrow so it's 12 general executive session purposes and then some that are very narrow so for example to consider student expulsion only applicable to school districts and fairly straightforward the other 12 that are broadly applicable as you might imagine have they have their their ins and outs among those are legal counsel labor negotiations discipline of a public employee e and so the you have the notice issues hopefully somebody is tracking those and those get pretty detailed and i think are beyond the scope of this session but the issue is what can happen frequently within those executive sessions and what is the scope of those executive sessions and the when you're in an executive session it's good to look at the attorney general's manual or have somebody who is looking at that because the scope is described of each of the different kinds you are allowed in those executive sessions to engage in preliminary consensus or in informal decision making but the actual decision has if there is a decision to be made it has to be made outside of the executive session so of course i'm involved in attorney-client privilege fairly frequently and in those we often seek and properly obtain a consensus view based on questions and information related to the claim of you know here's an aggressive approach here's a less aggressive approach what i'm hearing from the board is this is the direction i'm going to try to go those those are proper but here's the settlement agreement do you approve approve it or not you can have discussions in the executive session about it but when you say it's approved or it's not approved it comes out into a public session and you break into a public session for it and then the scope there there are quite a few decisions we'll talk about how the oregon ethics commission does address the potential violations here but there are quite a few decisions that relate to the scope where often it's a board member suggests that another board member exceeded the scope of the executive session so if you're talking about dismissal of a public employee and suddenly it sounds like there's a full-on debate on whether the department that the public employee was the leader of should have been restructured years ago and let's start designating somebody to make a plan to restructure this department there should be a flag that's going on does this really relate to the discipline or dismissal of this public employee and so again yes um this is julia um question about that so the scope is set out when at the beginning of the meeting it says we're meeting executive session under ors whatever it is is that is that where the scope is set yes that's where the scope there are certain types under those statutes so they're usually referring to a specific executive session and it needs to stay within the scope occasionally i seen where multiple statutes may apply which could affect the scope yeah i mean this is just like a commentary i guess um maybe for our our future practice is well that's read at the beginning of the meeting it's an ors and for most of us who aren't lawyers it doesn't really mean anything uh i mean it's it's a generic we know generally what they're there for um is there i mean you actually could take the ors and translate it into like a specific scope yes in fact the attorney general manual is pretty good
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for that and so it's something where uh someone who is familiar with and deals with executive sessions a lot could set a reminder of this is what we're allowed to discuss and if you're if we're not i always say you should be able to answer how is this connected to the topic that we're permitted to be in executive session for and if you're having to pause too long then you're probably pushing the envelope and so having somebody who you know your pps is fortunate because you've got an in-house counsel who comes to uh your meetings and has an eye on that but for smaller entities you know i i guess who don't have somebody there it's it's a refrain that i'm constantly bringing up you know now we're talking about something different so we're here to talk about this but using the attorney general's manual or getting some information out before going into an executive session can be helpful sometimes it's going to be obvious but sometimes less so thank you so uh and and really that was to my final point is i think you have to have an ear out and board members and good healthy board are going to hold each other accountable to this when they hear it and you know just raise the question and that can be done in an unaccusatory way hey is this within the scope of what we're permitted to talk about might very well be because you know labor dealing with labor negotiations if you're talking about a comprehensive collective bargaining agreement or all the negotiations going on now i mean the the reach the tether is long and so um that that certainly um you know there can be an answer yes i do think this relates to it uh and hopefully you get someone who's pretty attuned to these providing some guidance we generally don't have the opportunity to ask that of one another since liz has a hair trigger on this stuff well that's good uh so keep somebody with a hair trigger on this stuff around and uh you'll you'll be in good shape and that's i feel like we set up segways into the next slide because director constant that raises why do you want somebody with a hair trigger around well because this is on the public official and so the oregon government ethics commission investigates these claims against public officials but the what they investigate is violations of the executive of executive sessions so that's what oegc investigates uh courts so unlike public records which involves the d.a before the courts courts uh handle the other issues and if a court finds a willful violation of an executive session it can require the individual public official to pay the attorney's fees of the party who brought the claim so obviously we want to presume everyone's acting in good faith and not going to engage in willful misconduct but but that's why we have somebody with the hair trigger to make sure we don't even get close to get close to that so it is something to individually be aware of as you go through looking at the the bodies and evaluating whether or not they're public bodies getting this information out to to them or having somebody who's got got a hotline to the the legal counsel office for these types of questions is uh you know potentially going to save them and obviously it's the entities problem too if an individual is having challenges so i want to stop there we anticipated that this that the exec or that the public meetings session would take most of the time and we were talking 30 to 45 minutes and the other is such a refresh let me stop there see if there are questions there and if not i'm just going to remind you of the kind of the three main rules and um three main rules in the oregon ethics law just so that they're in your mind and you know when to raise those well mike this is a bac member d loretto um one of the issues in my past life was and particularly because become more troublesome now because we don't meet together as this notion of what can occur with a discussion over emails and so where one person starts sending an email to another regarding whatever the item is that you're recommending or you're approving i used to tell my elected officials you couldn't do that can you just for a minute talk to us about
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emails and discussions that may or may not occur sure so the first point i'll make about emails relates generally uh whether it's regarding public meetings law or not is emails often are subject to interpretation in any dispute and so you ought to take great care in writing them and the same goes for text messages and other types of communication with respect to members of a public body if the email discussion turns into basically a quorum providing comments about the information then you run into that problem that is described in the lane county case uh handy versus lane county so it's something to be uh it's something to be attuned to and if we go all the way back to the purpose is gosh that's frustrating i wish we could have freer conversation by email understand that and right now what the courts are telling us is that you need to call a noticed meeting and have your discussion that way to fulfill the purpose of the public meetings law anything else all right well you know how to get uh to to get a hold of of liz and liz knows how to get a hold of us and others who can help through these issues as as they come up and it sounds like there's some good work going on in that uh in the area of assessing the various bodies out there that may be subject to these laws so i i don't want to just rehash the entire uh oregon ethics law session from last year and so maybe i'll just go five to eight minutes with some quick reminders um if we move into that second set and again this will be very brief my refrain go back to that policy public official service is a public trust and people require public officials to be ever conscious of the public trust there was a link between the executive session discussion and the oregon ethics law that i wanted to make here and that is we didn't speak last year in any significant manner about volunteers but volunteers can be subject to the oregon ethics law and the while the analysis is not precisely the same you can imagine that the more significant the role of the committee the the more engaged it is in the in particularly financial decisions that might be made by the district the more likely it may be that a volunteer falls under the ambit of a public official and needs to be thoughtful about the principles so just quickly moving on i will recommend in the next slide the oregon ethics commission has a guide for public officials that addresses the three primary topics use of office gifts and the multitude of gift exceptions and finally conflicts of interest and how those are dealt with so i'll just touch on those standards as a reminder and if we move forward that general rule comes up in the next slide and that is a public official may not use or attempt to use their position to obtain financial gain or avoid financial detriment as you'll recall it's a broad swath of people that it applies to and questions come up if you're an employee agent owner of a business then that can be encompassed within the prohibitions from using official positions uh to obtain financial gain or avoid detriment so let's just quickly go through the a couple of the other slides there are a number of exceptions if we look at even using your office there are honorariums can apply to board members the one that i
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i would be attuned to as a board member is the relation to a private business so if i'm receiving a professor of the year award completely separate from the work that i do for pps and uh and i obtain some honorarium for that it's not going to be a violation of the law reimbursement of expenses i point out that you have policies and processes and following those will spare potential problems in this area and quickly the next slide we address some of the examples these come up more with employees but not not exclusively but the things you hear about the most are some of the freebies that show up um you know i was thinking if if you are thinking being on this public board is great i had no idea there were so many perks then you might want to stop and think because that's not what's associated with uh the you know if there are a lot of perks you really should have a little red flag of are these perks going to run me a foul of any of those prohibitions that we talk about about once a year and so moving forward we have our gift prohibition is on the next slide that's the 50 rule uh point i thought i'd emphasize this year that i did not emphasize last year is that a entity with a legislative or administrative interest in the work of a public official it can have its its individuals can be linked together so it's like imputed so in other words if you have multiple people from the same company that are keeping under fifty dollars but it overall exceeds fifty dollars then you can run a foul of the gift prohibition so i will say since i've practiced a lot more public officials have just gone to i'm not taking i i i will pay for my coffee i will pay for my sandwich it's just simpler that way if not you know think about a system for tracking it so that you don't run into trouble end up being an example somewhere there are a lot of exceptions to the gift rule that are in the next not all of them are in the next slide those that come up uh with some regularity are if we advance if we can advance the slide and uh this year the the issue of representing the public body at a dinner uh has been certainly less frequent but that'll start coming up again hopefully sooner rather than later and the unsolicited token or award i would like to lay claim to the standard that i thought of on the spot december 19th last year and that was if you can re-gift it it might make you wonder whether or not you've exceeded the unsolicited token or award for less than 25 dollars exception to the gift prohibition one more topic that just to close out and again just a refresher or reminder of the conflicts of interest which is our last uh slide before the enforcement slides and so the conflicts of interest there are the questions of the potential action or decision when it might be to the private benefit of a prohibited to either the public official or someone who falls into the the other categories of relative or whether you have an actual conflict where it's clear it's going to result in a pecuniary benefit and the rule on those is in the next slide you always have to declare the conflict of interest if it's a potential conflict of interest you may participate in the decision-making uh you may not participate in the actual if it is an actual conflict unless there's a necessity like to have a quorum and i got asked a question last year if that was in the statute and i didn't know on the spot and it is in the it is in the statute not just the regulations that necessity rule wouldn't expect it too often to come up with pps more likely to come up with smaller boards that have a hard time getting a quorum and then finally just a reminder if you have particular sticky questions
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there are official opinions that can bind the oregon ethics commission so they can create a free and clear but they take quite a number of months to get processed or you can get a less formal staff opinion and if your facts track the stack staff opinion and the issue later arises the consequences will not be a monetary fine they will be more educational in nature if you were in good faith relying on a staff opinion and the penalties here can be severe 5 000 and if there's a significant financial benefit it can be doubled as a fine against a public official so that was obviously a quick trip through because we've done that topic more recently but obviously i'm happy to take final questions on either topic exceeded mile at a time i apologize for that i think one of the issues for us mike is that we have liz and so we're so used to being able to call on her for guidance or have her there reminding us um and i i was very proud of us when we were at harvard all together that you know we were very clear okay we we can talk about birth order and pets and things like that when we're at lunch but we cannot talk about you know anything that relates to the business of the school board but we can get to know one another better well i i equate it to we we get events with judges and you can't go in and jesus judge we've been waiting on your ruling for a long time you got any information there's plenty of other things to talk about the one thing i do want to point out is i don't want to be so restrictive to not allow a free and uh you know robust discussion in the executive session and you do have liz there who's keeping an eye on those things um but but you are allowed to you know make sure you understand what's going on in the executive session and i know as a person who's answered questions in executive session um frequently actually not frequently but i am always comfortable to say i think that's probably within the scope and something else we're starting to get away from it but if if scope issues need to be sorted out you do have liz there and then your challenge is probably if you if you end up with executive sessions of some of the other committees and such they're probably less likely to have executive sessions just in practice as i think out loud about it um but if they if there would be a reason for them too i think you want to have somebody available who's attuned to where those issues are well i look forward to being back in bsc and getting real vibes instead of uh read through the zoom vibes but uh appreciated being here and uh obviously you know how to reach out through liz to the extent this prompted any questions thanks so much thank you thank you thank you mike mike thank you this is there anything else this evening uh or is this can we adjourn the session and move over to our legal uh yes so we can move to the next meeting um it is noticed i don't recall roseanne if it's noticed for seven o'clock or immediately following this one but it might be good for a little break it's seven o'clock so we should start that one at seven o'clock and people can stretch their legs and let the dog out sounds great all right so this uh training session is adjourned and we'll see all back at seven for our um executive session or those who are happy exceptions not everybody


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