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HomeMy WebLinkAbout2023-07-11 Planning PACKET Planning Commission Agenda Note: Anyone wishing to speak at any Planning Commission meeting is encouraged to do so. If you wish to speak, please rise and, after you have been recognized by the Chair, give your name and complete address for the record. You will then be allowed to speak. Please note the public testimony may be limited by the Chair. July 11, 2023 REGULAR MEETING AGENDA I. CALL TO ORDER: 7:00 p.m., Civic Center Council Chambers, 1175 E. Main Street II.ANNOUNCEMENTS III.CONSENT AGENDA 1.Approval of Minutes a.June 13, 2023, Regular Meeting IV.PUBLIC FORUM Note: To speak to an agenda item in person you must fill out a speaker request form at the meeting and will then be recognized by the Chair to provide your public testimony. Written testimony can be submitted in advance or in person at the meeting. If you wish to discuss an agenda item electronically, please contact PC-publictestimony@ashland.or.us by July 11, 2023 to register to participate via Zoom. If you are interested in watching the meeting via Zoom, please utilize the following link: https://zoom.us/j/95965534636 V.OTHER BUSINESS A. Oregon's Land Use Planning Program Decision Making & Meeting Procedure o Public Meeting Law o Commission Functions o B. Discussion of City Council and Planning Commission Coordination VI.OPEN DISCUSSION VII.ADJOURNMENT Next Scheduled Meeting Date: July 25, 2023 (TBD) Total Page Number: 1 Total Page Number: 2 Planning Commission Minutes Note: Anyone wishing to speak at any Planning Commission meeting is encouraged to do so. If you wish to speak, please rise and, after you have been recognized by the Chair, give your name and complete address for the record. You will then be allowed to speak. Please note the public testimony may be limited by the Chair. June 13, 2023 REGULAR MEETING DRAFT Minutes I. CALL TO ORDER: Chair Verner called the meeting to order at 7:00 p.m. at the Civic Center Council Chambers, 1175 E. Main Street. She welcomed Commissioners Gregory Perkinson, Russell Phillips, and Susan MacCracken Jain. Commissioner MacCracken Jain was unable to attend the meeting. Commissioners Present: Staff Present: Lisa Verner Brandon Goldman, Community Development Director Kerry KenCairn Derek Severson, Planning Manager Doug Knauer Aaron Anderson, Senior Planner Eric Herron Michael Sullivan, Executive Assistant Gregory Perkinson Russell Phillips Absent Members: Council Liaison: Susan MacCracken Jain Paula Hyatt II.ANNOUNCEMENTS Community Development Director Brandon Goldman made the following announcements: The City received a $1.58 million grant to be used for the acquisition of a homeless and inclement weather shelter. The grant was provided by the Jackson County Continuum of Care. The City Council approved the City’s 2024-2025 biennium budget, and also approved some consumer-price index-based increases for planning fees. These will go into effect July 1, 2023. Townmakers, LLC has updated the City regarding their development of the Croman Mill Site. The Department of Environmental Quality (DEQ) has collected site samples and will have the results of the tests in July, 2023. The application from Townmakers, LLC will be dependent upon the level of cleanup necessitated based on the results of those tests, and staff expects the group to apply for a preapplication conference over the summer. This item could come before the Commission again if the Commission requests it. The June 27, 2023 Commission Study Session has four items to discuss: a Chamber of Commerce Economic Diversification Study; an update from the Climate & Environmental Policy Advisory Committee regarding a natural gas ordinance update; a draft review of a Climate Friendly Area (CFA) study; and a discussion on where to hold the 2023 annual Total Page Number: 3 Planning Commission Minutes Commission retreat and the items to be discussed. Commissioner Knauer expressed interest in hearing the presentation given by Townmakers, LLC, and Mr. Goldman responded that staff would contact them. III.CONSENT AGENDA A. Approval of Minutes 1.May 9, 2023, Regular Meeting Commissioner Knauer noted that test results included on page 12 of the packet were not seen at the May 9, 2023 meeting. Mr. Goldman noted that those numbers were part of a digital presentation that was given at the meeting that didn’t show up in the infographic, but appeared in document form. Commissioners KenCairn/Knauer m/s to approve the consent agenda as presented. Voice Vote: All AYES. Motion passed 6-0. IV.PUBLIC FORUM - None V.UNFINISHED BUSINESS A.Approval of Findings for PA-T2-2023-00040, 1111 Granite St. Commissioners Knauer/KenCairn m/s to approve the findings as presented. Voice Vote: All AYES. Motion passed 6-0. B.Approval of Findings for PA-T2-2023-00042, Clear Creek Dr. Parcel 7 - 391E09AB TL 6700 & 391E09AA TL 6200 Commissioners KenCairn/Knauer m/s to approve the findings as presented. Discussion: Commissioner Herron asked if changes were made to the findings. Chair Verner noted that the Commission had suggested changes, which Mr. Goldman stated were included on pages 90-91 of the findings. Voice Vote: All AYES. Motion passed 6-0. VI.TYPE II PUBLIC HEARING - CONTINUED A. PLANNING ACTION: PA-T2-2023-00041 SUBJECT PROPERTY: Tax Lot 404 Clinton St. Total Page Number: 4 Planning Commission Minutes OWNER: Magnolia Heights LLC DESCRIPTION: A request Performance Subdivision Outline Plan approval for a 12-lot, 11-unit residential subdivision. The application also includes requests for an Exception to Street Standards, and a Tree Removal Permit for four significant trees. Additionally, the applicant has applied for a minor amendment to the adopted Physical and Environmental Constraints map to effectively remove a drainage way form the map that is not extant on the property. And finally, the applicant has addressed the applicability standards of the Water Resource Protection Zone WRPZ by providing a wetland determination demonstrating that there are no regulated wetland resources on the subject property. COMPREHENSIVE PLAN DESIGNATION: Single Family Residential; ZONING: R-1-5; MAP: 39 1E 04 DB; TAX LOT: 404 (PLEASE . NOTE: The record and public hearing are closed on this matterThe Planning Commission's consideration of this item will be limited to their deliberation and decision. No further submittals (evidence or argument)will be accepted into the record.) Chair Verner read aloud the guidelines for a Type II Public Hearing. She reminded the Commission that was item was continued from the May 9, 2023 meeting. No further submittals or comments will be submitted or accepted at this meeting. The Public Hearing was closed, but the Public Record was left open and allowed for submitted comments to be received for two weeks. Chair Verner stated that comments were received during this period, though no comments or materials were received after May 30, 2023 (see attachment #1). Chair Verner also noted that Commissioners Perkinson and Phillips were not present at the May 9, 2023 meeting when this item was first heard. She stated that both Commissioners could participate in the continued discussion if they could attest to having thoroughly reviewed the packet materials for the May 9 and June 13 thth meetings, and have watched the recording of the May 9 meeting. Commissioners Perkinson and Phillips attested that they had done so. Ex Parte Contact No ex parte contact was reported. Chair Verner conducted a site visit. Discussion and Deliberation Commissioner Perkinson thanked staff for making changes to the findings, and asked if these revisions changed staff’s recommendation. Mr. Goldman responded that it did not, pointing out that a new condition was added requiring that the final plan application include the Department of State Lands’ concurrence with the submitted wetlands report. Mr. Goldman noted several other changes made to provide further clarification to the findings (see attachment #2). Commissioner Knauer inquired about whether a Water Resource Protection Zone (WRPZ) always correlates to a wetland. Mr. Goldman responded that the designation of a wetland or a WRPZ along creeks is based on whether they are intermittent or ephemeral, and that staff determined that there Total Page Number: 5 Planning Commission Minutes was no ephemeral creek on that site, as was previously mapped. Commissioner Knauer asked how the City could conclude that an ephemeral creek did not exist given its intermittent nature. Mr. Anderson answered that the wetland delineation report showed that there was no wetland present, and that a visit to the site shows no physical drainage, therefore the WRPZ standards are not applicable. Commissioner KenCairn commented that developments over the last few decades have changed or removed many wetlands and ephemeral areas. She added that the development of the site could also provide any necessary drainage from the site in the event of high precipitation. Commissioners Perkinson/Phillips m/s to approve staff’s recommendation of PA-T2-2023-00041 with the updates provided by staff on June 13, 2023. Roll Call Vote: All AYES. Motion passed 6-0. VII.OTHER BUSINESS A. Election of Officers Commissioner Perkinson motioned to elect Commissioner Verner as Chair. Voice Vote: All AYES. Motion passed 6-0. Commissioner Herron/KenCairn m/s to elect Commissioner Knauer as Vice Chair. Voice Vote: All AYES. Motion passed 6-0. VIII.OPEN DISCUSSION Councilor Hyatt spoke to the ongoing work at the Croman Mill Site by Townmakers, LLC, emphasizing the role that the Commission will play in that process and the importance of their recommendation that they will make to the Council. Commissioner Perkinson spoke to the amount of information contained in the Housing Production Strategy (HPS) report, stating that he may have questions about it in the future. Mr. Goldman responded that the Commission would review a number of items contained in the HPS, and that staff will begin reviewing the first of those items in July, 2023 before bringing them to be reviewed by the Commission in the form of a study session. Commissioner Herron stated that he would not be able to attend the July 25, 2023 study Session. The Commission discussed when to hold its annual retreat, though no date was decided. Mr. Goldman stated that staff would sent out a poll in order to determine an appropriate date and time. Total Page Number: 6 Planning Commission Minutes Commissioner Knauer inquired how the Croman Mill project would be financed, what risks would be shared with the City, and what the plans looked like for mixed housing. Councilor Hyatt responded that there is no written plan yet, and that the Commission would likely not see any updates regarding this project until the “no further action” notice from the Department of Environmental Quality is lifted. Mr. Goldman added that the applicants have multiple plans for residential, mixed- use, and commercial buildings on the site, and that the development will require code amendments to take place. Once the applicants complete a pre-application they will provide the Commission with a conceptual plan, but the Commission will not review the application until it comes before them in the formal Public Hearing process. IX.ADJOURNMENT Meeting adjourned at 7:41 p.m. Submitted by, Michael Sullivan, Executive Assistant Next Meeting Date: June 27, 2023 Total Page Number: 7 From:Aaron Anderson To:planning Subject:FW: Planning Acton PA-T2-2023-0041; Tax Lot 404 Clinton St. Date:Monday, May 15, 2023 8:19:36 AM All: Please see below. This was sent directly to me and copied to mayor and (most of) council (it appears that she missed cc’ing to councilor Dahle). Front office: please reply letting Betsy and all parties originally cc’ed that this has been received and placed in the record. I will take care of forwarding to Gill and Amy. Thank you. Aaron Anderson CFM, Sr. Planner From: Betsy A. McLane <clumb3@yahoo.com> Sent: Sunday, May 14, 2023 6:17 PM To: Aaron Anderson <aaron.anderson@ashland.or.us> Cc: Bob Kaplan <bob@council.ashland.or.us>; Dylan Bloom <dylan.bloom@council.ashland.or.us>; Gina DuQuenne <Gina.DuQuenne@council.ashland.or.us>; Tonya Graham <tonya@council.ashland.or.us>; Eric Hansen <eric@council.ashland.or.us>; paula.hyab@council.ashland.or.us Subject: Planning Acton PA-T2-2023-0041; Tax Lot 404 Clinton St. \[EXTERNAL SENDER\] Dear Aaron and Ashland City Council, I am writing to urge that the Planning Commission reject the proposal submitted for building on the above referenced tax lot. I attended the PlanningCommission meeting on this subject via Zoom and was appaled at the lack of clarity and information provided in the proposal. The most simple google search reveals that the company proposing the development has almost no experience in successfully building anything and is run out of a private home This is reflected in lack of care evident in the proposal. Below are just some of the problems that were apparent to me: The proposed development includes: A plan for 11 buildable lots, for a total of 21 new residences with one lot size open space. The State of Oregon allows that land zoned for single family housing can have two dwelling units on it. The submitted proposal shows these to be three bedroom duplexes. The developer recently created a new business as a property rental firm. This could mean 80-132 rental occupants. These could be short term housing for air b&bs, tourists, or students and/or longer term rentals. In either case, Total Page Number: 8 this could easily overwhelm streets with traffic and noise and completely change the character of the neighborhood. The proposal includes plans to cut down at least four large signicant trees, because the developer does not want to pay to build a retaining wall and handrail. It also includes a requested waiver to change the normal sidewalk to be built on Clinton. If approved, there will likely be no parkrow as we now have in Riverwalk. No plan for preservation of wetland or a riparian area. The proposal uses a temporary wetlands sample with no final ruling as to whether there is wetland here. Since this property is adjacent to Bear Creek, special care should be taken to protect plants and wildlife. No adequate drawings of the look of the housing No mention of fire wise planning. No study of trac mitigation was presented. It appears that Briscoe would be most aected since the proposal includes extending Briscoe and Ann into the development and trac would move to and from Mountain via Briscoe and to and from Hersey via Ann. Ann is already a dangerous very steep street. There is potential for up to 100 vehicles trips using Briscoe every day. Complete disregard for the Riverwalk subdivision CC&R’s which state that one of our goals is to preserve property value. These are only the most obvious dubious elements of the proposal. During the meeting the Commission refused to address the issue of stop signs and street lighting stating that those questions “should be directed to the city department that deals with streets.” Obviously, city departments are not sharing information in collegial ways. Believing as I do that residents of Ashland have a right to transpanency in our government, I find that the proposed project is the opposite of transparent. It seems that a development is somehow being ramrodded into a single family home community with no regard for community values. I ask that the City Council investigate this proposal more thoroughly and that the planning commission reject it. I am an owner at 419 Clinton. Most sincerely, Betsy A. McLane, Ph.D. Betsy A. McLane clumb3@yahoo.com Total Page Number: 9 From:Aaron Anderson To:planning Subject:FW: Magnolia Heights subdivision Date:Tuesday, May 23, 2023 8:22:22 AM Front Office please reply to Mr. Longurst that we have received his emailThank you Aaron Anderson CFM, Sr. Planner -----Original Message----- From: Gordon Longhurst <gordonlonghurst7580@gmail.com> Sent: Saturday, May 20, 2023 12:55 PM To: Aaron Anderson <aaron.anderson@ashland.or.us> Subject: Magnolia Heights subdivision \[EXTERNAL SENDER\] Hi Aaron, I attended the public hearing on May 9th regarding the Magnolia Heights subdivision and spoke about a few concerns I had. You and I spoke after the meeting about how the state mandate to allow duplexes on land zoned single family homes superseded local zoning restrictions. This letter is to request that traffic study be done (required?) to assess the impacts the added residences will have on neighborhood traffic and safety. The proposal states that no traffic study is required because there will be less than 50 trips, but does not indicate whether that estimate is based on 11 residences or 22. Even if the number of trips doesn’t require a traffic study it would still be useful to determine how best to deal with two already problematic intersections that will be made moire so by increased traffic; Ann St at Hersey and Phelps at Patterson. Please enter this letter in the record. Thanks, Gordon Longhurst 515 Ann St Ashland 97520 Total Page Number: 10 From:Aaron Anderson To:planning Subject:FW: PLANNING ACTION: PA-T2-2023-00041 Date:Tuesday, May 23, 2023 8:23:37 AM Front Office, Please reply to Dean below, Thank you Aaron Anderson CFM, Sr. Planner From: Dean Ichikawa <deanichikawa@gmail.com> Sent: Sunday, May 21, 2023 10:07 PM To: Aaron Anderson <aaron.anderson@ashland.or.us> Subject: PLANNING ACTION: PA-T2-2023-00041 \[EXTERNAL SENDER\] PLANNING ACTION: PA-T2-2023-00041 SUBJECT PROPERTY: Tax Lot 404 Clinton St OWNER: Magnolia Heights LLC Hi Aaron Anderson, My apologies, I missed the public hearing on May 9th, but hoping you can consider my concerns, if someone hasn’t already raised them. When I read the application–unless I missed it–the applicant isn’t taking into account anything regarding N Mountain Ave. I live right on N Mountain Ave (521) and I can tell you that it is already quite busy. It’s also a pretty long stretch of road with no stop signs in between. This allows for cars to often go well above the speed limit. And with the park right across the street, I have an 11-year old daughter who crosses the street quite a bit and the majority of cars do not stop for her when she stands waiting at the crosswalk to cross the street. This new development is likely to increase the number of cars traveling on N Mountain Ave and I’m concerned that the additional traffic will cause issues, especially as cars attempt to make a left turn on N Mountain Ave towards I-5 without any stop signs or traffic control. As it is, cars honk their horns at cars trying to turn in and out of the neighborhood and in and out of the park on an almost daily basis. I don’t think they should be allowed to add so many new dwellings without addressing this issue by contributing to a new intersection or some type of traffic control. Otherwise, they will just be adding to a problem and won’t be responsible if an accident should happen or other disturbances result. Thank you so much for hearing my concerns! —Dean Ichikawa (650) 703-9578 Total Page Number: 11 Total Page Number: 12 Total Page Number: 13 BEFORE THE PLANNING COMMISSION JUNE 13, 2023 IN THE MATTER OF PLANNING ACTION PA-T2-2023-00041A) REQUEST FOR OUTLINE PLAN APPROVAL FOR A 12 LOT, 11 ) RESIDENTIAL UNIT SUBDIVISION. INCLUDED IN THE ) APPLICATION IS A REQUEST FOR AN EXCEPTION TO STREET ) STANDARDS, A TREE REMOVAL PERMIT FOR TWO SIGNIFICANT ) AMENDED TREES AND A MINOR MAP AMENDMENT TO THE ADOPTED ) FINDINGS. PHYSICAL AND ENVIRONMENTAL CONSTRAINT MAP.) ) OWNER MAGNOLIA FINE HOMES) APPLICANT: ROGUE DEVELOPMENT SERVICES) ______________________________________________________________) 2.8 The Planning Commission notes that the Water ResourceProtection Zone applicability at AMC 18.3.11.020 (full text set out above) puts the burden on the property owner that the regulations of AMC 18.3.11 “are met or are not applicable” to a proposed development. The Planning Commission notes, as mentioned above, that the application included a wetland delineation pending acknowledged by the Department of State Lands (DSL) concluding that there is no regulated wetland on the subject property. The Planning Commission notes that there were concerns raised during the initial evidentiary hearing regarding the possible existence of wetlands in the southeast corner of the subject property. Absent other expert testimony, the Planning Commission must rely on the conclusions of both the Shotts and Associates report and the DSL. The Planning Commission finds, based on the above, that the regulations at AMC 18.3.11 are not applicable to the present development. 7)That the Final Plan application shall include: a)Final electric service, utility and civil plans including but not limited to the water, sewer, storm drainage, electric, street and driveway improvements shall be submitted for the review and approval of the Planning, Building, Electric, and Public Works/Engineering Departments with the Final Plan submittal. The street system plan shall include full street designs with cross-sections consistent with the City’s Street Design Standards for the proposed residential neighborhood streets and alleys, as approved, except that no parkrow planting strip is required in the area of the approved exception as detailed in section 2.5 above on the bridge over Beach Creek. … h)The approved Tree Protection Plan, Water Resource Protection Zone Mitigation and Management Plans, and accompanying standards for compliance shall be noted in the CC&Rs. The CC&Rs must state that deviations from the approved Tree Preservation and Protection Plan or Water Total Page Number: 14 Resource Protection Zone Mitigation and Management Plans shall be considered violations of the Planning approval and subject to penalties described in the Ashland Municipal Code. i)That a final DSL concurrence regarding the wetland report is received. 8)That a final survey plat shall be submitted within 12 months of Final Plan approval and approved by the City of Ashland within 18 months of this approval. Prior to submittal of the final subdivision survey plat for signature: e)Irrigated street trees selected from the Recommended Street Tree Guide and planted according to city planting and spaces standards shall be planted along the full project frontage in all parkrows and behind the sidewalk where parkrows are not present North Mountain Avenue of the subject property, inspected and approved by the Staff Advisor. Total Page Number: 15 Total Page Number: 16 Total Page Number: 17 Total Page Number: 18 State Of Oregon Understanding Oregon's Land Use Planning Program Training for Local Officials and the Public Excerpt Chapter 4: Making Land Use Decisions Welcome to Chapter 4 – Making Land Use Decisions. In this section, we discuss the different types of land use decisions made by city and county government, time requirements for these decisions and the public hearing and appeals processes. We have divided them into specific sections for easy reference. It isimportant to note that this chapter is only a general summary of planning procedures and requirements. For information about a specific statute, legal precedent, goal or rule, cities and counties should contact the appropriate governmental agency. If you have legal issues or concerns, consult an attorney who specializes in land use law. Local Land Use Decisions According to state law, there are three main types of land use decisions: legislative, quasi-judicial and ministerial. In most cases, public noticeis required. Public hearings are required for certain types of decisions. Although local governments must establish procedures and requirements consistent with state statutes, they have considerable flexibility in assigning responsibility for decisions. For example, in many cases, staff makes the initial decision, subject to appeal to the planning commission. Some planning commission decisions may be appealed to the governing body. Some jurisdictions employ hearings officers to make certain types of land use decisions which are then subject to appeal to the planning commission or governing body. In all cases, local government land use decisions may be appealed to the Land Use Board of Appeals, or LUBA. All decisions must be consistent with state statutes, the statewide planning goals, case law and other applicable legal requirements. Limited land use decisions and expedited land divisions are special categories of local decisions that are subject to specific procedures and standards outlined in state statutes. Legislative Land Use Decisions Legislative decisions establish local land use policies. They typically become part of the comprehensive plan or zoning code. In the case of map designations, legislative decisions are applicable to broad geographical areas rather than single properties or sites. In most communities, proposed legislative amendments to the comprehensive plan or zoning code are considered first by the planning commission, which holds one or more public hearings. The commission’s recommendation is then considered by the governing body which holds at least one public hearing before taking final action. Total Page Number: 19 Quasi-Judicial Land Use Decisions Local governmental bodies make quasi-judicial decisions when they apply existing policies or regulations to specific situations or development proposals. Other quasi-judicial decisions amend the zoning or comprehensive plan map, policies or regulations in relation to a specific development proposal. Additional examples of quasi-judicial decisions are conditional use permits, variances, partitions, subdivisions, annexations and road and street vacations. Ministerial Land Use Decisions Ministerial land use decisions are made by local planning staff based on clear and objective standards and requirements applicable to a specific development proposal or factual situation. Examples include building permits for a use permitted by code or a determination that a proposed structure meets setback or height requirements. Ministerial decisions do not require a public notice or hearing. Limited Land Use Decisions and Expedited Land Divisions To streamline approval of relatively minor actions within an urban growth boundary, or UGB, the legislature has approved two other kinds of decisions. The first, limited land use decisions, are made by the locally designated decision-maker and are subject to procedures and notice requirements outlined in state statutes. Examples include tentative partitions, tentative subdivisions, site review and design review. The second, expedited land divisions for residential uses within a UGB, are made by planning staff after public notice. They are subject to procedures and requirements outlined in state statutes. The local government may not hold a hearing on such an application and must make its decision within 63 days of the application. Decisions may be appealed to a referee hired by the local government and finally to the State Court of Appeals according to state law. Process Procedures for legislative and quasi-judicial land use decisions are outlined in statutes and interpreted through case law. These procedures are ultimately incorporated into local plans and ordinances. Legislative procedures are generally more flexible than quasi-judicial procedures because they deal with relatively broad public policy issues. Quasi-judicial procedures are often more complex and specific, and require "due process." This is a legal term that entitles all affected parties prior notification of a proposed action and the opportunity to present and rebut evidence before an impartial tribunal. For quasi-judicial decisions, governing body members, hearings officers and planning commission members should avoid or limit communications outside of the formal public hearing process. They are required to disclose any contact outside the public hearing regarding a specific case in order to provide an opportunity for rebuttal or other corrective action. The local government must maintain a record of the proceedings and adopt findings of fact regarding the reasons for their decision. Within UGBs, this process must be completed within 120 days. Outside UGBs, the process must be completed within 150 days. In both cases, there are specific provisions to extend the time limit. Land Use Application Legislative land use decisions are subject to post acknowledgment plan amendment (PAPA) requirements contained in state statutes. For quasi-judicial land use decisions, the 120- or 150-day review process begins after theplanning staff receives required application forms and supporting Total Page Number: 20 information that advocate for a certain land use or proposed development. Many local governments will schedule pre-application conferences with the prospective applicant. Public Notice Notice for legislative land use decisions must be provided to the public as outlined in local procedures and must be forwarded to the Director of DLCD as required by the state statute. DLCD provides notice to those who have requested to be included on the agency’s notice list. For quasi-judicial decisions, specific parties must be notified at least 20 days prior to the public hearing: the applicant; property owners within 100 feet of the property if within a UGB, within 250 feet if located outside a UGB and within 500 feet if located within a farm or forest zone; and any neighborhood or community organizations whose boundaries include the site. Some local governments also require that notice be posted on the property. Public Hearing For legislative decisions, the planning commission usually holds initial hearings on a proposal before forwarding its recommendation to the governing body. Legislative decisions require final action by the governing body. Hearing procedures are relatively flexible and there are no limitations on outside contact between decision makers and the public. For quasi-judicial decisions, most cities and counties hold at least one hearing before the planning commission or hearings officer prior to forwarding a recommendation or allowing an appeal to the governing body. At the hearing, the presiding officer summarizes the procedures and planning staff describes the case, including the applicable criteria in the comprehensive plan or zoning code, and its recommendation. Applicants then present their case for approval and others may support them. Opponents then have the opportunity to challenge the applicant’s case. All parties have the right to present and rebut evidence directed toward the applicable criteria. Failure to raise an issue orally or in writing in advance of or during the hearing precludes appeal to LUBA on that issue. This is commonly referred to as the "raise it or waive it" requirement. Under state law, some types of land use decisions may be made without a hearing if notice is provided and no party requests it. Decision and Findings Legislative decisions require a record and findings, but the requirements are less rigorous than for quasi- judicial decisions. The record must be adequate to show that the legislative action is within thelegal authority of the city or county. The record must show that the jurisdiction followed applicable procedures. Legislative decisions must be consistent with substantive requirements in state statutes and the statewide planning goals. For example, an updated housing element must be consistent with ORS 197.303-314 and Statewide Planning Goal 10 (Housing). After hearing the staff report and public testimony on an application for a quasi-judicial decision, the hearings body makes its decision. As noted before, this must be based only on applicable criteria in the local code and relevant evidence and testimony. There are four choices of action: approve the application; approve the application subject to specific conditions; deny the application; or continue the review process to obtain additional information. In this case, the applicant may need to agree to a time extension. Total Page Number: 21 The final decision must include findings of fact and conclusions of law that are adequate to explain the basis for the action. Draft findings are often prepared by staff and may be available in advance of the hearing. Adoption of findings may occur immediately following the hearing and include any modifications to the draft, based on additional evidence and testimony. In some cases, the prevailing party, legal counsel or staff are asked to prepare the final version of the findings which are then adopted at a separate meeting before the time limit expires. The final decision must be based on what is known as "substantial evidence" that a reasonable person would rely on in reaching the decision. Appeals Local ordinances specify how initial decisions by local staff, a hearings officer, or the planning commission can be appealed to the local governing body. Certain appeals are limited to evidence submitted to the initial decision-maker and may include an opportunity for additional oral or written argument. As we have noted before, only parties that have stated their case before the local government have 21 days to file a Notice of Intent to Appealwith LUBA. Following this filing, and during a timeframe prescribed by law the local government must provide the complete record of the proceedings with the board. Once the record is filed and accepted, the petitioner and respondent(s) file their briefs with the board. LUBA will hear oral arguments from the parties and issue a written opinion that either affirms, reverses, or remands the decision for additional consideration. The board’s decision may be appealed to the Court of Appeals, or finally, to the Oregon Supreme Court. Specific timelines in state law provide for a speedy review of land use decisions and increase certainty for both the community and applicant. Alternatives to formal appeals include mediation, which can save all parties time and money. For more information on mediation assistance, contact DLCD. Staff Role Planning staff are usually the first individuals an applicant meets. They are responsible for explaining all procedures and requirements, reviewing the application for completeness and preparing the staff report. Staff presents its report and recommendation to the decision maker. Often, the staff recommendation is accepted with or without conditions. Staff generally prepares the final decision documents and findings of fact documentingthe reasoning to support the decision. A pre-application conference with prospective applicants may help them understand the procedures and requirements for the land use proposal, including any additional research or information that may be needed. In some cases, applicants may be encouraged to meet with neighborhood groups or other affected parties to review their proposal. Staff prepares a public notice for proposed land use decisions that describes the location of the subject property, the nature of theapplication and the proposed use. The notice also explains: criteria from the comprehensive plan and land use regulations that pertain to the application; the date, time, and location of the public hearing; the name of a local government representative tocontact; and requirements for public testimony and how the hearing is conducted. When a staff report is prepared, it must be made available to all interested parties seven days prior to the public hearing. In some cases, the staff report includes draft findings explaining the reasoning for the recommended decision. As noted earlier, LUBA may remand or return a case to the local government for additional review. If a decision is remanded, the local government must decide whether to proceed, based on the existing record or to allow additional evidence and testimony. Legal requirements related to remand may be Total Page Number: 22 complicated. Staff should work with their legal counsel to define procedures and requirements before the remand is formally considered. Ex ParteContact, Bias and Conflicts of Interest Ex Parte Contact An ex parte contact occurs when a decision-maker receives information, discusses the land use application or visits the site in question outside the formal public hearing. This does not include discussions with and information received from staff. Failure to disclose such contact may result in reversal or remand of the decision. If ex parte contact does occur, the decision-maker must disclose it on the record at the hearing, describe the circumstances under which it occurred and present any new evidence introduced through that contact. The presiding officer must give parties the opportunity to rebut the substance of the ex parte contact. State statutes clearly delineate requirements for ex parte contacts. Bias Bias occurs when decision-makers have a prior judgment of the case that prevents them from making an objective decision based on the facts. Such decision-makers should excuse themselves from the proceedings. Even though bias is often subjective, not all personal views or positions are actual bias in the eyes of the law. While it is not unusual for decision-makers to have a perspective or background, the threshold test is if this will influence their decision. Decision-makers should carefully consider any issues related to their personal bias and be prepared to step aside if necessary. Conflict of Interest A conflict of interest occurs if any action by public officials results in financial gain or loss to themselves or a relative or business associate. According to state law, it must be disclosed. There are two types of conflicts of interest, actual and potential. An actual conflict of interest is one that would occur as a result of the decision. If that is likely, the decision-maker must disclose itand not participate in the decision. A potential conflict is one that could occur as a result of the decision. In that case, disclosure is still required, but the decision-maker may participate in the decision. Legal Issues Related to Ex Parte Contacts, Bias or Conflicts of Interest Decision makers should consult with the local government’s legal counsel if they have any questions or concerns regarding Ex parte contacts, Bias or Conflicts of Interest. Total Page Number: 23 Total Page Number: 24 Total Page Number: 25 Total Page Number: 26 ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ Ÿ¡ ˜ ˜ ˜ ˜ Total Page Number: 27  ¡ £¡ ¤¡ ¦¡ Total Page Number: 28 Total Page Number: 29 ¡ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ Total Page Number: 30 Total Page Number: 31 ˜ ˜ ˜ ˜ ˜ ˜ Total Page Number: 32 ˜ ˜ Total Page Number: 33 ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ Total Page Number: 34 ˜˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ ˜ Total Page Number: 35 Total Page Number: 36 ˜ ˜ ˜ ˜ Ÿ¡  ¡ £¡ Total Page Number: 37 £¡ ¤¡ ¦¡ §¡ ¨¡ ©¡ ¬¡ ŸŸ¡ Ÿ¡  ¡ Total Page Number: 38 £¡ ¤¡ ¦¡ §¡ ¨¡ ©¡ ¬¡ Ÿ¡  ¡ Total Page Number: 39 Oregon Municipal Handbook CHAPTER 9: PUBLIC MEETINGS LAW Published by the League of Oregon Cities September 2020 Total Page Number: 40 Table of Contents I. Covered Entities .................................................................................................................................... 4 A. Governing Bodies of Public Bodies .................................................................................................. 4 i. A body that makes decisions for a public body ............................................................................ 4 ii. A body that makes recommendations to a public body ................................................................ 5 B. Governing Bodies of Certain Private Bodies .................................................................................... 5 II. Covered Meetings ................................................................................................................................. 6 A. ‘Convening’ a Meeting ..................................................................................................................... 6 B. Meeting ‘Quorum’ ............................................................................................................................ 7 C. Meeting for a ‘Decision’ ................................................................................................................... 8 III. Requirements .................................................................................................................................... 9 A. Meeting Types and Notice ................................................................................................................ 9 i. When Notice is Required .............................................................................................................. 9 ii. Contents of the Notice................................................................................................................... 9 iii. Amount of Notice ....................................................................................................................... 10 iv. Noticing Executive Sessions ....................................................................................................... 11 B. Proper Meeting Space ..................................................................................................................... 11 i. Capacity ...................................................................................................................................... 12 ii. Geography ................................................................................................................................... 12 iii. Accessibility ................................................................................................................................ 12 iv. Equality ....................................................................................................................................... 13 C. Recording and Retaining Minutes ................................................................................................... 13 D. Public Attendance and Participation ............................................................................................... 14 i. Maintaining Order ....................................................................................................................... 14 IV. Executive Sessions .......................................................................................................................... 17 A. Executive Sessions for Municipalities ............................................................................................ 18 B. Final Decision Prohibition .............................................................................................................. 20 C. Media Representation at an Executive Session ............................................................................... 21 V. Enforcement ........................................................................................................................................ 22 A. General Enforcement ...................................................................................................................... 22 B. Civil Penalties for Violations of ORS 192.660 ............................................................................... 23 Total Page Number: 41 Chapter 9: Public Meetings Law The purpose of the Oregon Public Meetings Law (OPML) is to make decision-making of state and local governing bodies available to the public. This policy is stated expressly in the law: “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 1 is the intent of \[this law\] that decisions of governing bodies be arrived at openly.” That policy is given effect through various substantive provisions contained under ORS 2 192.610 to ORS 162.690, discussed below. Although compliance with these provisions might reduce the speed and efficiency of local decision-making, local residents benefit from a better understanding of the facts and policies underlying local actions. The required process and formality also can make it easier for cities to justify a decision if one is later challenged in an 3 administrative or judicial proceeding. This chapter will touch on the basic requirements of the law, beginning with the criteria for what gatherings constitute “meetings” and what organizations constitute “governing bodies” 4 under the OPML. Where applicable, the OPML generally requires that meetings be open to the public unless an executive session is permitted, that proper notice be given, and that meeting 56 minutes and votes be recorded.The OPML also governs the locationof meetings. Finally, the 7 OPML includes enforcement provisions for when these provisions are violated. Please note that this chapter is meant to provide LOC members with an overview of the OMPL. LOCmembers with specific questions are encouraged to contact their city’s attorney. Further, note that this chapter of the Handbook is based extensively on material in the Oregon Attorney General’s Public Records and Meetings Manual (2019). LOC strongly recommends that cities purchase the print version of this manual, which is updated every two years. A free online version is availableat https://www. doj.state.or.us/oregon-department-of-justice/public- records/attorney-generals-public-records-and-meetings-manual/. Finally, note that the Oregon Department of Justice (ODOJ) reserves its legal advice for the state of Oregon and its agencies; as such, cities with specific questions on the OPML again should consult their legal counsel. 1 ORS 192.620. 2 Id. 3 See, e.g., ORS 192.650. By recording the minutes of any meeting, including the “substance of any discussion on any matter,” cities build a record that shows the basis for their actions. This record can dispel claims that a city’s action is arbitrary, discriminatory, retaliatory, etc. 4 ORS 192.610. 5 ORS 192.630 to ORS 192.660. 6 Id. 7 ORS 192.680. Total Page Number: 42 I.CE OVERED NTITIES Understanding the scope of the OPML is critical for ensuring compliance with the law. In short, the OPML applies to (A) governing bodies of a public body that (B) hold meetings for 8 which a quorum is required to make a decision or deliberate toward a decision on any matter. The first of those elements addresses the who of the OPML — that is, which entities are subject to the law. The second of those elements addresses the what of the OPML — that is, what types of meetings are subject to the law. This section addresses the first of those elements. A.Governing Bodies of Public Bodies 9 The OPML applies only to the “governing bodies” of a public body.” A public body includes state bodies, any regional council, a county, a city, a district, or any other municipal or 10 public corporation. A “public body” also includes a Examples: board, department, commission, council, bureau, A city is a public body under committee, subcommittee, or advisory group of any of ORS 192.610(4), and a five- 11 the aforementioned entities. A “governing body,” member city council is a meanwhile, does not just mean city council; it means two governing body of the city. or more members of any public body with “the authority Further, a planning commission to make decisions for or recommendations to a public of a city is also a public body, 12 and a three-member board of body on policy or administration.” The following commissioners is a governing subsections examine in more detail the authority to make body of the planning decisions and recommendations, and what entities might commission. ORS 192.610(3). in turn qualify as a “governing body.” i. A body that makes decisions for a public body A body with the authority to make decisions for a public body on “policy or 13 administration” is a governing body. For instance, cities are public bodies and their governing bodies are city councils. Sometimes, cities delegate decision-making authority to lower bodies, such as planning commissions; these too are governing bodies for the purposes of the OPML. 8 ORS 192.610(5); ORS 192.630(1). 9 ORS 192.630(1). 10 ORS 192.610(4). 11 Id. 12 ORS 192.610(3). 13 ORS 192.610(3). Total Page Number: 43 ii. A body that makes recommendations to a public body A body that has the authority to make recommendations to a public body on policy or 14 administration is itself “a governing body” under the OPML. These recommending bodies are 15 sometimes called “advisory bodies.” From time to time, a local government agency or official may appoint a group or committee to gather information about a subject. If this “advisory body” makes a recommendation to a governing body, then it shares the title of governing body and 16 becomes subject to the OPML. For cities, common examples of bodies that make recommendations to a governing body include subcommittees of the city council and city boards and commissions. The OPML applies to local advisory bodies and all of their members, including private citizens. The language of the OPML is not limited to public officials; rather, it applies to all “members” of a body making 17 decisions or recommendations to a public body, even if all of the members are private citizens. B.Governing Bodies of Certain Private Bodies 18 Technically, only “public bodies” are covered by the OPML. However, it is at least possible that some private bodies might fall under the gamut of the law if they assume clear public functions. There is no test for determining whether or when a private entity should be considered a “public body” for purposes of the OPML. Therefore, cities should consult their attorney when in doubt about whether a private body is covered by the law. Note that the Oregon Supreme Court follows a six-part test for determining when a private entity is the “functional equivalent” of a 19 Those factors include (1) the entity’s “public body” under Oregon’s Public Records Law. origin, (2) the nature of the functions, i.e., whether the function performed is traditionally private or public, (3) the scope of authority exercised by the entity, (4) whether the entity receives financial support from the government, (5) the degree of government control over the entity, and 20 (6) the status of the entity’s offices and employees. That said, the OPML has its own definition 21 of “public body,” and so it is not clear whether these factors apply in the meetings context. 14 ORS 192.610(3). 15 ODOJ,AG’PRMM138(2019). TTORNEY ENERALS UBLIC ECORDS AND EETINGS ANUAL 16 ORS 192.610(3). 17 ORS 192.610(3). 18 ORS 192.610. 19 See Marks v. McKenzie High School Fact-Finding Team, 319 Or 451, 463-65 (1998) (interpreting ORS 192.311). 20 Id. 21 ORS 192.610(4). Total Page Number: 44 II.CM OVERED EETINGS The previous section explained that the OPML applies to the “governing bodies” of a 22 Not every action that a governing body takes, of course, is subject to the OPML. public body.” Only a “meeting” of a governing body of a public body is subject to the law. The OPML defines a meeting as (1) the “convening of a governing body” in order to (2) 23 “make a decision or deliberate toward a decision” and for which (3) “a quorum is required.” Taken together, a meeting only occurs where a governing body convenes, reaches a quorum, and 24 discusses or deliberates on city matters.This section examines each of these elements under the OPML and how courts have interpreted them. Before reviewing the meeting elements, please note that at least two categories of gatherings that might otherwise qualify as “meetings” under the OPML have been exempted by 25 statute. As such, these gatherings are not “meetings” for the purposes of the OPML. The on-site inspection of any project or program; and A gathering of any national, regional, or state association to which the public body or its members belong. This includes any monthly, quarterly, or annual gatherings of the League of Oregon Cities or National League of Cities. A.‘Convening’ a Meeting For governing bodies, the most natural method of convening is in person. Of course, modern technology provides many other ways for members of a governing body to convene with one another. Because convening might occur by accident, members of governing bodies need to be mindful about how they communicate with each other and staff to avoid holding a “meeting” under the OPML. Outside in-person meetings, the OPML applies to teleconferences, web conferences, and 26 Moreover, the OPML applies in more generally to “telephone or electronic communications.” 27 exactly the same way to these meetings as it does to in-person meetings. Inherent in this are 22 ORS 192.630(1). 23 ORS 192.610(5). 24 Id. Under the OPML, a decision is any action that requires a “vote of the governing body.” ORS 192.610(1). 25 ORS 192.610(5). 26 ORS 192.670. 27 Id. Total Page Number: 45 logistical issues, such as guaranteeing public attendance to the meeting and ensuring that the medium of communication can accommodate everyone who wishes to attend. Local governing bodies must solve these issues and comply with all other OPML requirements if they hold a 28 meeting that it is not in-person. It may be possible for a governing body to convene through serial communications on a 29 topic. In 2015, the Oregon Court of Appeals found that three county commissioners — a quorum of the governing body — had violated the OPML by using a series of phone calls and 30 emails to reach a county decision. While the Oregon Supreme Court reversed the ruling, the 31 court did not express an opinion one way or the other on serial communications. Therefore, that portion of the Court of Appeals ruling still holds at least some weight. The Court of Appeals noted “not all private, serial communications among members” are 32 OPML violations. Just as it is with meeting in person, members of a governing body may correspond through email or voicemail on topics unrelated to city business. These serial communications may become an issue only when they are “conducted for the purpose of 33 deliberation or decision.” B.Meeting ‘Quorum’ 34 By law, a meeting cannot take place without a “quorum” of the governing body. Oddly enough, the term “quorum” is not defined in the OPML. For cities, quorum requirements often are set by charter, bylaws, council rules, or ordinance. In the absence of a specific definition, the 35 general definition of “quorum” under state law is a majority of the governing body. If a quorum of members convenes, then the OPML will apply unless the subject matter discussed is completely unrelated to a city decision or recommendation. Conversely, if less than a quorum convenes, then a “meeting” has not taken place, as that term is defined in the law. Quorum is a technical requirement. As a practice, cities should take care not to deliberate toward decisions or recommendations in small groups. Gatherings that are below quorum and 28 Id. 29 See Handy v. Lane County, 274 Or App 644, 664-65 (2015), reversed on other grounds, 360 Or 605 (2016). 30 Id. 31 See generally Handy v. Lane County, 360 Or 605 (2016). 32 See Handy, 274 Or App at 664-66 (2015). 33 Id. The Court of Appeals noted that a plaintiff likely needs “some evidence of coordination, orchestration, or other indicia of a purpose…to deliberate or decide out of the public eye.” Id. 34 ORS 192.630. 35 ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 142 (2019). Total Page Number: 46 clearly deliberations violate (if nothing more) the policy of OPML, which is to include the public 36 in the decision-making process. Significantly, meetings that do not require a quorum are not “public meetings” under the OPML. As such, meetings with staff generally do not constitute public meetings. A single city council member may meet with staff to discuss city business because staff are not members of the city council. C.Meeting for a‘Decision’ By law, members of a governing body only meet for purposes of the OPML if they are 37 making or deliberating toward a “decision.” The OPML defines a “decision” as the following: Any determination, action, vote or final disposition upon a motion, proposal, resolution, order, ordinance or measure on which a vote of a governing body is 38 required, at any meeting at which a quorum is present. In other words, only topics that relate to the business of Social Gatherings? A quorum of the governing body trigger the OPML. This subject a governing body is permitted to meet in a social setting without matter requirement means that members of a governing triggering the OPML. Care must body are free to gather to discuss a number of topics — be taken, however, to avoid any sports, television, literature — as long as these do not discussion of public policy or administration, lest the social concern the work of the governing body. Similarly, if a gathering evolve into an illegal quorum of a governing body meets to discuss matters on public meeting. which it has no authority to make a decision, it is not a 39 “meeting” under the OPML either. Yet where the topics do relate to matters concerning the governing body, any discussion by a quorum of the body will trigger the OPML. As noted by the ODOJ, even meetings “for the 40 sole purpose of gathering information” fall under the OPML. Accordingly, the LOC recommends that members of governing bodies avoid discussing with each other any of the facts or context of local matters unless they are participating in a proper public meeting. 36 ORS 192.620. 37 ORS 192.610(5). 38 ORS 192.610(1) 39 ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 144 (2019) (citing 38 Op Atty Gen 1471, 1474, 1977 WL 31327 (1977)). 40 Id. Total Page Number: 47 III.R EQUIREMENTS The last two sections answered the who and the what of the OPML, namely what entities and what meetings of those entities are subject to the law. Now comes the meeting requirements, including rules on notice, meeting location, and the recording of minutes and votes. The OPML also requires public attendance, and many laws further require public participation. This section addresses these requirements and the challenges that accompany it. A.Meeting Types and Notice As a reminder, each city in Oregon is subject to its own individual charter, municipal code and rules of procedures. Public notice is a common topic of local procedure. As such, the LOC recommends that cities conduct a thorough review of applicable charter provisions, municipal code sections, and their respective city’s rules and procedures to ensure that those provisions do not provide additional requirements to be followed when creating and posting a public notice. This section will address the minimum notice requirements under state law. i.When Notice is Required The OPML requires public notice to be given any time a governing body of a public body 41 holds a “meeting”as defined under the law.Therefore, allregular, special, and emergency meetings require notice, though the amount of notice depends on the meeting type. Generally, 42 notice is required for any interested persons and any media outlet that has requested notice. ii. Contents of the Notice ORS 192.640(1) requires a notice for meetings which are open to all members of the public to contain, at a minimum, the following information: Time of the meeting; Place of the meeting; and A list of the principal subjects anticipated to be considered at the meeting. While the first two items are self-explanatory, the list of principal subjects is less clear. While publishing the agenda along with the notice is generally sufficient for this requirement, the 41 ORS 192.640. 42 Id. Total Page Number: 48 ODOJ recommends that the list of principal subjects “be specific enough to permit members of 43 the public to recognize the matters in which they are interested.” This means that notices should avoid repeating generic descriptions, such as “consideration of a public contract,” and should instead state qualities specific to the subject, such as “consideration of contract with X 44 company to provide Y services.” Occasionally, a governing body may wish to discuss a subject that was not on the list, perhaps because the issue arose too late to be included in the notice. As a matter of state law at least, the absence of a subject from a notice does not preclude the governing body from discussing it; under the OPML, the list of anticipated subjects does “not limit the ability of a 45 governing body to consider additional subjects.” Beyond these requirements, a common practice is to include information in the notice for persons with disabilities. The OPML mandates that public bodies make all meeting locations 46 The ODOJ suggests that notices include the name and accessible to persons with disabilities. telephone number of a city employee who can help a person in need of a reasonable 47 accommodation. iii.Amount of Notice The number of days in advance a city must give notice of a public meeting depends on the type of meeting to be conducted. For regularly scheduled meetings, notice must be “reasonably calculated” to provide actual notice of the time and place of the meeting “to 48 interested persons including news media which have requested notice.” For special meetings, i.e. non-regular meetings, notice must be provided at least 24 hours 49 in advance to “the general public” and again to “news media which have requested notice.” The only exception to the 24-hour notice rule for special meetings is an emergency meeting. For an emergency meeting, the governing body must show that “an actual emergency” 50 Even exists and must describe the circumstances of the emergency in the meeting minutes. these meetings require notice; the OPML requires that emergency meetings be noticed in a 43 ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 151 (2019). 44 Id. 45 ORS 192.640. 46 ORS 192.630(5). 47 ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 151 (2019). 48 ORS 192.640(1). 49 ORS 192.640(3). 50 Id. Total Page Number: 49 51 manner that is “appropriate to the circumstances.”Furthermore, an emergency meeting may 52 only be used to discuss matters pertaining to the emergency. In Oregon Association of Classified Employees v. Salem-Keizer School District, the Oregon Court of Appeals found that a school district had violated the OPML by using an emergency meeting held for budget reasons to 53 discuss a “contract approval,” a non-emergency matter. The LOC recommends that cities use emergency meetings only in clear emergencies and only as a way to respond to the emergency. iv. Noticing Executive Sessions If the type of meeting to be held is an executive session, the governing body holding the 54 executive session is required to give notice in the manner described above. In addition, the 55 notice must be sent to each member of the governing body. No member of the governing body can be excluded from receiving notice of the executive session, even if it is known that the member is unable to attend the meeting.In addition, when providing notice of an executive session, the notice is required to state the specific provision of the OPML that authorizes the 56 executive session. Finally, unless the executive session is necessary to respond to an 57 emergency, the notice of the session must be provided with a minimum of 24 hours’ notice. 58 The LOC Guide to Executive Sessions explores these issues and offers sample notices. B.Proper Meeting Space The OPML requirements for a public meeting space fall roughly into four categories. 59 First, the meeting space must have appropriate capacity. Second, the meetingspace must be 6061 within the right geography. Third, the meeting space must satisfy criteria for accessibility. 62 Fourth, the space must be a place of equality. 51 Id. 52 See Or. Ass’n of Classified Employees v. Salem-Keizer Sch. Dist. 24J, 95 Or App 28, 32 (1989). 53 Id. 54 ORS 192.640(2). 55 Id. 56 Id. 57 ORS 192.640(3). 58 LOC,GES(2017), https://www.orcities.org/application/files/ EAGUE OF REGON ITIES UIDE TO XECUTIVE ESSIONS 7415/6772/9151/GuidetoExecutiveSessions-03-27-19.pdf (last accessed June 29, 2020). 59 ORS 192.630(1). 60 ORS 192.630(4) 61 ORS 192.630(5). 62 ORS 192.630(3). Total Page Number: 50 i. Capacity The OPML provides that any and all public meetings must “be open to the public” and 63 that anyone interested in attending “shall be permitted to attend.” Based on this language, it should be inferred that governing bodies need to anticipate roughly how many citizens will be interested in a meeting and plan accordingly. A meeting space that is woefully inadequate for the expected turnout likely is a violation of the OPML. ii. Geography The OPML lays out certain criteria for the location of a governing body’s meeting. The provisions are presented in an “either/or” list, and so not all of the criteria need to be satisfied. The OPML requires that a meeting space either be (1) “within the geographic boundaries” of the public body, (2) at the public body’s “administrative headquarters,” or (3) the nearest practical 64 location. Generally speaking, the LOC recommends public meetings be held within the city unless exigent circumstances arise. In the event of “an actual emergency necessitating immediate action,” these criteria do not apply and the governing body may hold an emergency meeting at a 65 different location than the ones described here. iii. Accessibility 66 In two main ways, the OPML requires accessibility for persons with disabilities.First, meetings subject to the OPML must be held in places accessible to individuals with mobility and 67 other impairments. Second, the public body must make a “good-faith effort” to provide an 68 interpreter at the request of deaf or hard-of-hearing persons. Cities can find guidance on the first requirement, and the potential penalties for failure to comply, under laws and regulations of the Americans with Disabilities Act (ADA). As for the 69 The law defines a “good faith” requirement, this can be enforced only through the OPML. “good-faith effort” as “including … contacting the department or other state or local agency that maintains a list of qualified interpreters and arranging for the referral of one or more qualified 70 interpreters to provide interpreter services.” 63 ORS 192.630(1). 64 ORS 192.630(4). A fourth option for most public bodies is to hold a public meeting within “Indian country.” Id. 65 Id. 66 See ORS 192.630(5)(a). 67 Id. 68 Id. 69 See ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 154-55 (2019). 70 ORS 192.630(5)(e). Total Page Number: 51 iv. Equality Public bodies are prohibited from holding meetings where discrimination is practiced on 71 the basis of race, color, creed, sex, sexual orientation, national origin, age, or disability. Generally, a public body may not hold a meeting at a location that is used by a restricted- 72 membership organization, but may if the location is not primarily used by such an organization. C.Recording and Retaining Minutes The OPML requires that the governing body of a public body provide for sound, video, 73 or digital recording, or written minutes, of its public meetings.Whatever the format, the record of the meeting must include the following categories of information: (a) All members of the governing body present; (b) All motions, proposals, resolutions, orders, ordinances and measures proposed and their disposition; (c) The 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 74 name; (d) The substance of any discussion on any matter; and (e) Subject to ORS 192.311 to 192.478 relating to public records, a reference to any 75 document discussed at the meeting. When recording minutes, the objective is not to include every word said at the meeting, but rather to provide “a true reflection of the matters discussed at the meeting and the views of 76 the participants.” Upon conclusion of the meeting, the minutes must also be available to the 77 public “within a reasonable time.” The ODOJ notes that, with some exceptions, the minutes should also be “available to persons with disabilities in a form usable by them, such as large 78 print, Braille, or audiotape.” 71 ORS 192.630(3). 72 Id. 73 ORS 192.650(1). 74 Note that the recording of minutes requires the “vote of each member by name” to either be recorded or made available on request. This means that members of a governing body cannot vote anonymously. The Court of Appeals has held, however, that the “absence of a recorded vote alone is not reversible error.” See ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 158-59 (2019) (citing Gilmore v. Bd. of Psychologist Examiners, 81 Or App 321, 324 (1986)). 75 ORS 192.650(1). 76 Id. 77 Id. 78 ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 161 (2019). Total Page Number: 52 Finally, the OPML requires that minutes or another record of a public meeting must be 79 preserved for a reasonable time. However, the Secretary of State’s Retention Schedule for 80 cities requires minutes of non-executive session meetings to be retained permanently. 81 Executive session minutes must be retained for 10 years. The LOC recommends that cities consult with their attorney before setting a retention schedule for meeting minutes. D.Public Attendance and Participation The OPML is a public attendance law, not a public participation law. Generally, meetings 82 of a governing body of a public body are open to the public unless otherwise provided by law. Yet while the law guarantees the right of public attendance, the law does not guarantee the right of public participation. In fact, the OPML only expressly mentions public participation in two specific contexts: the opportunity for “public comment” on the employment of a public officer and the opportunity for “public comment” on the standards to be used to hire a chief executive 83 officer. Importantly, public participation laws do exist elsewhere under state and local laws. In many cases, public participation might be required by another statute, a state regulation, or by a local charter or ordinance. For example, a city ordinance may require the city council to hear public comment when the council considers whether to condemn private property for public use. Similarly, state law requires cities to provide an opportunity for public testimony during the 84 annual budgeting process. State regulations, meanwhile, require that “\[c\]itizens and other interested persons \[have\] the opportunity to present comments orally at one or more hearings” 85 during the periodic review of a local comprehensive plan. For this reason, the LOC cautions cities to consult their attorney before choosing to withhold opportunities for public comment. Note that there is no rule against public participation if cities wish to allow it at meetings. i. Maintaining Order For cities, the charter ordinarily designates a specific person with authority to keep order in council meetings, often the mayor or the council president. For other governing bodies serving the city, the one with this authority likely is the leader of the body, such as the head, chair, or president of a particular committee, group, or commission. Generally speaking, a city may adopt 79 Id. at 162 (citing Harris v. Nordquist, 96 Or App 19 (1989)). 80 OAR 166-200-0235. 81 Id. 82 ORS 192.630(1). 83 ORS 192.660(7)(d)(C); ORS 192.660(7)(d)(D). 84 ORS 294.453 85 OAR 660-025-0080(2). Total Page Number: 53 meeting rules and a violation of these rules can be grounds for expulsion. For more information on maintaining order in council meetings, consult the LOC’s Model Rules of Procedure for 86 Council Meetings. Reasonable restrictions also may be placed on public participation. However, care must be taken to protect the freedom of speech under the First Amendment and Article 1, Section, of the Oregon Constitution. For example, the First Amendment protects the interest of citizens who 87 are “directing speech about public issues to those who govern their city.” Speech is a protected right that can be enjoyed not only through actual speech but also through expressive conduct, 88 such as making a gesture, wearing certain clothing, or performing a symbolic act.While the 89 right to speech is “enormous,” it is subject to content-neutral limitations. Further, no city is required to “grant access to all who wish to exercise their right to free speech on every type of government property, at any time, without regard to the disruption caused by the speaker’s 90 activities.” a. The Time, Place, and Manner of Speech Under federal law, a city’s council meeting or similar meeting is considered a limited 91 public forum. At a minimum, any expression of speech at a limited public forum in Oregon can 92 be limited through time, place and manner restrictions. Time, place and manner restrictions are simply that — rules regulating the time in which a person may speak, the place in which a person can speak, and the manner in which the speech can be made. An important caveat is that 93 all of these restrictions must be viewpoint neutral.The restrictions also must serve a 94 “legitimate interest” and provide “ample alternatives for the intended message.” 86 LOC,MRPCM(2017), https://www.orcities EAGUE OF REGON ITIES ODEL ULES OF ROCEDURE FOR OUNCIL EETINGS .org/application/files/1115/7228/7626/ModelRulesofProcedure3-15-19.pdf (last accessed July 9, 2020). 87 See White v City of Norwalk, 900 F2d 1421, 1425 (9th Cir 1990). 88 See Virginia v. Black, 538 U.S. 343, 358 (2003). 89 See White, 900 F. 2d at 1425 (1990). 90 See Walsh v Enge, 154 F. Supp. 3d 1113, 1119 (D. Or. 2015) (quoting Cornelius v. NAACP, 473 U.S. 788, 799 (1985)). 91 See White, 900 F. 2d at 1425 (1990). 92 See State v. Babson, 355 Or 383, 408 (2014). Under federal law, expressions of speech in a limited public forum can also be subject to “content-based” rules, provided those rules are both “viewpoint neutral” and “reasonable.” Enge, 154 F. Supp. 3d at 1128. Thus, under federal law, a city council could limit the content of a public comment to the subject-matter at hand as long as it did not apply this rule unevenly. White, 900 F. 2d at 1425 (1990). In Oregon, however, the free speech clause Oregon Constitution appears to prohibit any “content-based” regulation of speech. See Outdoor Media Dimensions, Inc. v. Dept. of Transp., 340 Or 275, 288 (2006). Cities should err on the side of caution by permitting speech on any “subject” at meetings and limiting only its time, place, and manner. 93 See White, 900 F. 2d at 1425 (1990). 94 See Babson, 355 Or at 408 (2014). Total Page Number: 54 Because these restrictions are constitutional, local governing bodies generally can establish a specific format for speech at a council meeting or other public meeting. For example, a city’s budget committee may choose to limit public comment to the start of a hearing and limit the amount of time a person may speak. Limiting public comment to the start of a public hearing is not legally contentious. The challenge of time, place, and manner restrictions is ensuring that the restrictions are enforced consistently and equally to all speakers and that the restrictions cannot be construed as 95 discriminating against a given viewpoint. That said, cities generally will avoid triggering the 96 First Amendment if their restrictions serve “purposes unrelated to the content of expression.” This is true even if an otherwise valid restriction, under particular circumstances, “incidentally 97 burdens some speakers, messages or viewpoints.” b. Disruptive Conduct A good example of an “incidental” restriction on speech is rules on disruptive conduct. As noted above, cities and other governments are not required to tolerate “actual disruptions” when carrying out government business. So, even if the disruptive activity is a voice or some 98 form of expressive conduct, i.e., speech, it can be regulated. The rule against actual disruptions means that governing bodies may override one’s freedom of speech in certain circumstances, such as when an audience member is shouting loudly at others or when an individual refuses to sit down long after their allotted speaking time has ended. The general rule of thumb is that the disruption has to be preventing the governing body from completing its work. Conversely, cities must allow any actions that are not “actual” disruptions to the 99 In Norse v. City of Santa Cruz, for example, the governing body’s ability to conduct business. Ninth Circuit Court of Appeals found that an audience member giving the Nazi salute did not actually interfere with or interrupt the public meeting and that the city therefore had not been 100 justified in removing the individual from the meeting. In reaching its decision, the Norse Court found that “\[a\]ctual disruption means actual disruption. It does not mean constructive 95 See Norse v City of Santa Cruz, 629 F3d 966, 976 (9th Cir 2010) (noting that viewpoint neutrality is a key element under the First Amendment), 96 Alpha Delta Chi-Delta Chapter v Reed, 648 F3d 790, 800 (9th Cir 2011) (quoting, in part, Ward v Rock Against Racism, 491 US 781, 791, 109 S Ct 2746, 105 L Ed2d 661 (1989)). 97 Id. 98 Norse, 629 F.3d at 976. 99 Id. 100 Id. Total Page Number: 55 disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary 101 disruption.” c. Barring Disruptive Individuals It is not uncommon for a person desiring to make their point to cause several disruptions at the same meeting or over a series of meetings. The constant disruption of public meetings by the same person, despite repeated warnings and removals, often leads public officials to consider suspending the person from future public meetings. Unfortunately, any efforts to suspend or ban individuals from future hearings are highly suspect and likely unconstitutional. On two separate occasions, federal courts have held that prohibiting a disruptive person from attending future meetings, and from entering the entirety of a government facility, is not permitted under the First Amendment. In Reza v. Pearce, the Ninth Circuit Court of Appeals ruled that “imposing a complete ban” on a person’s entry into a government building “clearly 102 Similarly, exceeds the bounds of reasonableness … as a response to a single act of disruption." in Walsh v. Enge, a federal district court found that the city of Portland could not “prospectively exclude individuals from future public meetings merely because they have been disruptive in the 103 past.” Note, however, that a district court decision is not binding precedent. While neither of these cases conclusively answers the question of whether a frequently disruptive individual can be barred from future hearings, they cast serious doubt that a court would uphold such an action. For a description of these cases and a more detailed overview of the options available to cities for handling disruptive members of the public at public meetings, see the LOC’s Legal 104 Guide to Handling Disruptive People in Public Meetings (2017). IV.ES XECUTIVE ESSIONS An executive session is a public meeting that is closed to members of the general public. Executive sessions may only be held for certain reasons and the other meeting requirements 105 discussed above still apply, such as notice, location, and minute-keeping requirements. 101 Id. 102 Reza v Pearce, 806 F.3d 497, 505 (9th Cir 2015). 103 See Walsh v Enge, 154 F. Supp. 3d 1113, 1119 (D. Or. 2015). 104 LOC,LGHDPPM(2017), https: EAGUE OF REGON ITIES EGAL UIDE TO ANDLING ISRUPTIVE EOPLE IN UBLIC EETINGS //www.orcities.org/application/files/2715/6116/0383/LOCWhitePaperonDisruptiveCitizens-FINAL5-5-17.pdf(last accessed June 29, 2020). 105 See ORS 192.660; see also ORS 192.610(2) (defining an executive session as a “meeting.”). Total Page Number: 56 For a thorough assessment of how executive sessions apply to cities, including sample 106 notices and a model media policy, consult the LOC Guide to Executive Sessions. Executive Sessions for Municipalities A. The Oregon Legislative Assembly has identified 14 circumstances in which an executive 107 session is authorized. Of these, 10 circumstances are likely to be used by municipalities: 1. Employment of a public officer, employee, staff member or individual agent. Members of governing bodies may generally deliberate whether to employ individuals that meet this description. That said, this exception does not apply to any public officer, employee, staff member, or chief executive officer unless (1) the position has been advertised (2) and there already exists an adopted regular hiring procedure. In addition, with respect to public officers, the public must have had an opportunity to comment on the officer’s employment. With regard to chief executive officers, there must be adopted hiring criteria and policy directives. This type of executive session cannot be used for either of the following purposes: To fill a vacancy in any elected office, public committee or commission, or advisory 108 or group; 109 To discuss an officer’s salary. 2. Dismissal, disciplining, or hearing complaints or charges relating to a public officer, employee, staff member or individual agent who does not request an open hearing. A governing body may hold an executive session on disciplinary matters; however, the 110 subject of the deliberations must be provided with an opportunity to request an open hearing. Clearly, this means that the governing body must notify the individual well in advance and determine whether they wish to have an open hearing. Generally, cities should be aware that public employees have a property interest in their employment. When in doubt, cities that are members of CIS are encouraged to consult the CIS 106 LOC,GES(2017), https://www.orcities.org/application/files/ EAGUE OF REGON ITIES UIDE TO XECUTIVE ESSIONS 7415/6772/9151/GuidetoExecutiveSessions-03-27-19.pdf (last accessed June 29, 2020). 107 ORS 192.660. 108 See ORS 192.660; see also ORS 192.660(7)(a)-(d). 109 See generally 42 Op Atty Gen 362, 1982 WL 183044 (1982). 110 ORS 192.660(2)(b). Total Page Number: 57 Pre-Loss Legal Department before taking disciplinary action. Failing to do so can negatively impact a city’s deductible if a lawsuit or wrongful termination complaint is subsequently filed. 3. Persons designated by the governing body to carry on labor negotiations. This provision allows city officials to hold an executive session to conduct deliberations 111 with the person they have designated to act on the city’s behalf during labor negotiations. Note that this is one of the few meetings where news organizations and the media can be excluded 112 from an executive session. 4. Persons designated by the governing body to negotiate real property transactions. This provision allows city officials to hold an executive session to conduct deliberations with the person they have designated to act on the city’s behalf regarding real property 113 transactions. A real property transaction likely may include the purchase of real property, the 114 sale of real property, and/or negotiations of lease agreements. The deliberations conducted during an executive session held under this provision must concern a specific piece of property 115 or properties — the session may not be used to discuss a city’s long-term property needs. 5. Information or records that are exempt by law from public inspection. In order to hold an executive session under this provision, the information and records to 116 be reviewed must otherwise be exempt from public inspection under state or federal law. The most common source for public records exemptions is Oregon’s Public Records Law and the attorney-client privilege under ORS 40.225. 6. Preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations. A governing body may use this provision to meet in executive session when it has good 117 reason to believe it is in competition with other governments on a “trade or commerce” issue. 7. Rights and duties of a public body as to currentlitigation or litigation likely to be filed. 111 ORS 192.660(2)(c). 112 ORS 192.660(4). 113 ORS 192.660(2)(e). 114 ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 165 (2019). 115 Id. (citing Letter of Advice to Rep. Carl Hosticka, 1990 WL 519211 (OP-6376) (May 18, 1990)). 116 ORS 192.660(2)(f). 117 ORS 192.660(2)(g). Total Page Number: 58 A governing body may use executive sessions as a way to consult with legal counsel 118 about current or pending litigation. In the event the litigation is against a news organization, 119 the governing body must exclude any journalist who isaffiliated with the news organization. 8. Employment-related performance of the chief executive officer of any public body, a public officer, employee, or staff member who does not request an open hearing. A governing body may hold an executive session to evaluate an employee’s performance; however, the subject of the deliberations must be provided with an opportunity to request an 120 open hearing. Clearly, this means that the governing body must notify the individual well in advance and determine whether they wish to have an open hearing. Generally, cities should be aware that public employees have a property interest in their employment. When in doubt, cities that are members of CIS are encouraged to consult the CIS Pre-Loss Legal Department before taking disciplinary action. Failing to do so can negatively impact a city’s deductible if a lawsuit or wrongful termination complaint is subsequently filed. 9. Negotiations under ORS Chapter 293 with private persons or businesses regarding proposed acquisition, exchange or liquidation of public investments. 121 This provision allows cities to conduct negotiations about certain public investments. 122 The final decision on these investments must occur in an open public meeting (see below). 10. Information on the review or approval of certain security programs. In order to hold an executive session under this provision, the security program must be related to one of the areas identified under ORS 192.660(2)(n). These include telecommunication 123 systems and the “generation, storage or conveyance of” certain resources or waste. B.Final Decision Prohibition Under the OPML, executive sessions must not be used “for the purpose of taking any 124 final action or making any final action.” While final decisions cannot be made, city councils and other public bodies may still reach a consensus during an executive session. This provision simply guarantees that the public is made aware of the deliberations. Thus, a formal vote in a 118 ORS 192.660(2)(h). 119 ORS 192.660(5). 120 ORS 192.660(2)(i). 121 ORS 192.660(2)(j). 122 ORS 192.660(6). 123 ORS 192.660(2)(n). 124 ORS 192.660(6). Total Page Number: 59 public session satisfies the requirement, even if the vote merely confirms the consensus reached 125 in executive session. C.Media Representation at an Executive Session Representatives of the news media must be allowed to attend all but two types of 126 executive sessions. The news media may be excluded from an executive session held to conduct deliberations with a person designated by the governing body to carry on labor 127 negotiations or an executive session held by a school board to discuss certain student records. Also, remember that a city council or other public body must exclude any member of the press if the news organization the reporter represents is a party to the litigation being discussed during 128 the executive session. Even though news organizations are permitted to attend virtually every executive session, governing bodies may prohibit news organizations from disclosing certain specified 129 information. Unless a governing body specifies what information is prohibited from disclosure, news organizations are free to report on the entire executive session. It also is worth noting that there is no penalty or punishment under the OPML against a news organization that shares information from an executive session without the city’s permission. The term “representatives of the media” is not defined by the OPML or in case law. However, the Oregon attorney general recently issued an advisory opinion wherein it concluded that under Oregon law “news-gathering representatives of institutional media” are permitted to attend executive sessions and the term is “broad and flexible enough to encompass changing 130 The conclusion reached by the attorney general seems technologies for delivering the news.” to imply that bloggers and other social media news entities are authorized to attend executive sessions. In reaching this conclusion, the attorney general relied heavily on what it believes are the stated reasons the Legislative Assembly allowed the media to attend executive sessions when 131 the law was originally adopted. Due to the ambiguity around who is or isn’t a “representative of the media,” the LOC recommends that cities generally permit any person providing the public with news, including internet bloggers, to attend executive sessions. Some cities may seek to establish a stricter media 125 See ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 173-75 (2019). 126 ORS 192.660(5). 127 Id. 128 ORS 192.660(5). 129 ORS 192.660(4). 130 See generally Op Atty Gen 8291 (2016). 131 Id. Total Page Number: 60 attendance policy and, if so, those cities need to undertake a meaningful and in-depth discussion with their city attorney before drafting such a policy. Denying “representatives of the media” access to meetings can lead to costly litigation. V.E NFORCEMENT A.General Enforcement Any person 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 OPML by members of the 132 Lawsuits may be filed by “any person who might be affected by a decision governing body. 133 that might be made.” A plaintiff may also file suit to determine whether the OPML applies to meetings or 134 decisions of the governing body. Under ORS 192.680(5), any suit brought under the OPML 135 must be commenced within 60 days following the date the decision becomes public record. 136 A successful plaintiff may be awarded reasonable attorney fees at trial or on appeal. 137 Whether to award these or not is in the court’s discretion. If a court finds that a violation of the OPML was the result of willful misconduct by a member or members of the governing body, 138 each is liable for the amount of attorney fees paid to the successful applicant. If a governing body violates the OPML in a decision, the decision is not necessarily void. In the case of an unintentional or non-willful violation of the OPML, the court has discretion to 139 void a decision, but such an action is not mandatory. The law permits a governing body that 140 violates the OPML to reinstate the decision while in compliance with the law. If a governing body reinstates an earlier decision while in compliance with the law, the decision will not be 141 voided and the decision is effective from the date of its initial adoption. Importantly, reinstatement of an earlier decision while in compliance with the law will not prevent a court from voiding the earlier 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 132 ORS 192.680(2). 133 See Harris v. Nordquist, 96 Or App 19, 23 (1989). 134 ORS 192.680(2). 135 ORS 192.680(5). 136 ORS 192.680(3). 137 Id. 138 ORS 192.680(4). 139 ORS 192.680(1). 140 Id. 141 Id. Total Page Number: 61 142 the governing body.” In that case, the court will void the decision “unless other equitable 143 relief is available.” B.Civil Penalties for Violations of ORS 192.660 Apart from the enforcement provisions described above, the Oregon Government Ethics Commission may review complaints that a public official has violated the executive session 144 provisions of the OPML as provided in ORS 244.260. The commission has the authority to interview witnesses, review minutes and other records, and obtain other information pertaining to executive sessions of the governing body for purposes of determining whether a violation 145 occurred. If the commission finds a violation of the executive sessions provisions, the 146 commission may impose a civil penalty not to exceed $1,000. If, however, the violation occurred as a result of the governing body acting on the advice of its legal counsel, the civil 147 penalty may not be imposed. 142 ORS 192.680(3). 143 Id. 144 ORS 192.685(1). 145 ORS 192.685(2). 146 ORS 244.350(2)(a). 147 ORS 244.350(2)(b). 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