Background: This column was originally published June 22, 2007. During the twenty years that I spent working as a reporter/anchor, nothing would make me more alert than when a government agency attempted to suppress the media's legal right to obtain public information. Unfortunately, at least one such incident occurred in my own hometown, which prompted me to write this column.
Well, here we go again. The Oakland City Council is accused of violating Oregon Public Records and Meetings laws, as defined by the Oregon State Attorney General. No, I'm not ashamed to say that I'm from Oakland, unlike some melodramatic folks who quickly distance themselves from being Oakland residents whenever there's a front-page political scandal.
I don't mean to sound like an old-timer, but people who move into Oakland should be well aware of the city's tumultuous past and they should feel no obligation to apologize for being Oakland residents whenever there's a controversy. After all, that's just the nature of the rough-and-tumble pioneer town.
Kudos to the Roseburg News-Review for exposing the latest scandal. In fact, I'm going to build up the News-Review quite a bit in this column; I hope it helps make amends for a few of the feathers I ruffled from my April 19th column.
According to an article published in the News-Review, June 13th, the Oakland City Council met in executive session to discus pending litigation. "However, in addition, the council heard a recommendation from Robert Franz, a Springfield attorney hired by the city's insurance carrier, to consider an ordinance prohibiting nepotism and another giving the council hiring and firing authority," stated the June 13th News-Review article.
One quick interjection: A government body MUST discus a proposed ordinance in an open meeting before the ordinance becomes law. I would assume that an attorney of all people, would be familiar with the public nature of government bodies?
Later on in the article, attorney Franz was quoted as saying, "All of the items discussed at the executive session were related to the subject matter for which the meeting was called, and the contents of the meeting are privileged communications pursuant to the attorney-client privilege of the city."
Well, first of all, attorney-client privilege of itself, can NOT be used as a reason to circumvent Oregon Public Meetings Laws. Former Douglas County Legal Counsel Cliff Kennerly attempted such a legal maneuver back in the 1990s, when a controversy erupted over the Douglas County Industrial Development Board.
That board is the recipient of county funds from the Douglas County Commissioners. Because the Douglas County Commissioners created the Industrial Development Board, some news media argued the industrial board was a public body (true), and therefore the board's meetings must abide by Oregon Public Meetings and Records laws.
Kennerly's knee jerk reaction was to refuse the news media access to the board's public financial records, by declaring all documents that come before the Industrial Development Board as being "attorney-client privilege." Because Kennerly's solution was overly broad, and not in compliance with Oregon Public Records and Meetings laws, Douglas County Commissioners decided to re-write some of the Industrial Development Board's bylaws, making the board a private body. (I still question the legality of a public body funneling thousands of dollars to a private board, with no requirement of the private board to tell the pubic how the taxpayer money is spent.)
It's interesting to see Franz, Oakland's insurance carrier's attorney, attempting to pull the same unsuccessful maneuver that Kennerly did years ago. I would be willing to place a small wager with someone as to the outcome of the decision, should the News-Review challenge Franz's actions and seek a ruling from a higher body. Attorney-client privilege is for the purpose of protecting citizens from invasion of privacy or a violation of their legal rights; it's not intended as a tool to allow government bodies to circumvent pubic records laws and to hide public business.
However, the issue that truly concerns me from the June 13th News-Review article, is a statement from Franz, where he said he would "take whatever steps necessary" to bar the News-Review from attending executive sessions of the city and any other city that currently allows the News-Review to participate.
Wow! Here's what Oregon State Attorney General Hardy Myers has to say on the subject, in the December, 2005 issue (the most recent edition) of the Attorney General's Public Records and Meetings Manual, pages 142-143:
"For many years, the common practice of many public bodies was to permit members of the media to attend executive sessions, subject to the understanding that the media representatives would not report certain sensitive matters. The principal purpose of this practice was to provide news representatives the opportunity to obtain, from their attendance at executive sessions, background information that would improve their understanding of final decisions, and consequently, their ability to keep the public better informed.
"The Public Meetings Law now expressly provides that representatives of the news media shall be allowed to attend all executive sessions except in two situations: executive sessions involving deliberations with person designated to carry on labor negotiations, and closed sessions held under ORS 332.061(2) to consider expulsion of an elementary or secondary school student or matters pertaining to a student's confidential medical records ORS 192.660(4)," states the Oregon Attorney General's Public Records and Meetings Manual.
"...news media shall be allowed to attend all executive sessions..." Did you catch the world shall? Not may, but shall. There is no choice. The news media have a legal right to attend executive sessions, unless Franz is on a crusade to overturn the Oregon legislature's statewide reforms from the early 1970s. The issue seems pretty clear-cut to me.
It's somewhat ironic. The Oakland City Council is holding closed-door meetings to discuss the possible dismissal of Police Chief Norm Counts. But before they dismiss their police chief, the city council might first consider dismissing their insurance carrier's attorney. If the Oakland City Council continues to follow his advice, they're likely to end up with multiple lawsuits from multiple sources, not from just the police chief.
It also couldn't hurt if members of the Oakland City Council (all newly-elected this past November) invested $25 to purchase a copy of the Public Records and Meetings Manual from the Oregon state capitol. I try to update my library every four years with a revised copy, and it makes nice bedtime reading!
For that matter, anyone would probably find the book interesting. The address to write for a copy of the manual is: Publications; Department of Justice; 1162 Court Street NE; Salem, Oregon 97301-4096.
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