Municipal Handbook - Chapter 9 - Public Meetings Law

Published by the League of Oregon Cities

September 2020

(Updated July 2024)

CHAPTER 9:

PUBLIC MEETINGS LAW

Oregon Municipal Handbook

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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................................................................................................................. 10

iii. Amount of Notice ....................................................................................................................... 10

iv. Noticing Executive Sessions ....................................................................................................... 11

B. Proper Meeting Space ..................................................................................................................... 12

i. Capacity ...................................................................................................................................... 12

ii. Geography ................................................................................................................................... 12

iii. Accessibility ................................................................................................................................ 12

iv. Equality ....................................................................................................................................... 13

C. Recording and Retaining Minutes ................................................................................................... 14

D. Public Attendance and Participation ............................................................................................... 15

i. Maintaining Order ....................................................................................................................... 15

IV. Executive Sessions .......................................................................................................................... 18

A. Executive Sessions for Municipalities ............................................................................................ 18

B. Final Decision Prohibition .............................................................................................................. 21

C. Media Representation at an Executive Session ............................................................................... 22

V. Enforcement ........................................................................................................................................ 23

A. General Enforcement ...................................................................................................................... 23

B. Civil Penalties for Violations of ORS 192.660 ............................................................................... 24

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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

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

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

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”

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

minutes and votes be recorded.

The OPML also governs the location of meetings.

Finally, the

OPML includes enforcement provisions for when these provisions are violated.

Please note that this chapter is meant to provide the LOC members with an overview of

the OMPL. The LOC members 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). The LOC strongly

recommends that cities purchase the print version of this manual, which is updated every two

years.

A free online version is available at 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

ORS 192.620.

Id.

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.

ORS 192.610.

ORS 192.630 to ORS 192.660.

Id.

ORS 192.680.

Note: as of July 2024, the most recent publication date of the Oregon AG Public Records and Meetings Manual

was published in 2019.

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agencies; as such, cities with specific questions on the OPML again should consult their legal

counsel.

I. COVERED ENTITIES

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

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

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

public corporation.

A “public body” also includes a

board, department, commission, council, bureau,

committee, subcommittee, or advisory group of any of

the aforementioned entities.

A “governing body,”

meanwhile, does not just mean city council; it means two

or more members of any public body with “the authority

to make decisions for or recommendations to a public

body on policy or administration.”

The following

subsections examine in more detail the authority to make

decisions and recommendations, and what entities might

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

administration” is a governing body.

For instance, cities are public bodies and their governing

ORS 192.610(5); ORS 192.630(1).

ORS 192.630(1).

ORS 192.610(4).

Id.

ORS 192.610(3).

Examples:

A city is a public body under

ORS 192.610(4), and a five-

member city council is a

governing body of the city.

Further, a planning commission

of a city is also a public body,

and a three-member board of

commissioners is a governing

body of the planning

commission. ORS 192.610(3).

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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.

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

administration is itself “a governing body” under the OPML.

These recommending bodies are

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

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

decisions or recommendations to a public body, even if all of the members are private citizens.

B. Governing Bodies of Certain Private Bodies

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

“public body” under Oregon’s Public Records Law.

Those factors include (1) the entity’s

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

ORS 192.610(3).

ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 138 (2019).

ORS 192.610(3).

ORS 192.610.

See Marks v. McKenzie High School Fact-Finding Team, 319 Or 451, 463-65 (1998) (interpreting ORS 192.311).

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(6) the status of the entity’s offices and employees.

That said, the OPML has its own definition

of “public body,” and so it is not clear whether these factors apply in the meetings context.

II. COVERED MEETINGS

The previous section explained that the OPML applies to the “governing bodies” of a

public body.”

Not every action that a governing body takes, of course, is subject to the OPML.

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)

“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

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

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. In the 2023 Legislative session, House Bill 2805

amended ORS 192.610(1)

and defined “convening” as well the “deliberation” in ORS 192.610(3).

Id.

ORS 192.610(4).

ORS 192.630(1).

ORS 192.610(5).

Id. Under the OPML, a decision is any action that requires a “vote of the governing body.” ORS 192.610(1).

ORS 192.610(5).

See https://olis.oregonlegislature.gov/liz/2023R1/Measures/Overview/HB2805 (last accessed July 11, 2024).

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Outside in-person meetings, the OPML applies to teleconferences, web conferences, and

more generally to “telephone or electronic communications.”

Moreover, the OPML applies in

exactly the same way to these meetings as it does to in-person meetings.

Inherent in this are

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

meeting that it is not in-person.

It may be possible for a governing body to convene through serial communications on a

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

emails to reach a county decision.

While the Oregon Supreme Court reversed the ruling, the

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

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

deliberation or decision.”

In the 2023 Legislative session, House Bill 2805 incorporated parts of the judicial

holdings in the Handy cases and added “exceptions” to ORS 192.690(1)(m)

to exempt

trainings, non-city business, and administerial activities.

B. Meeting ‘Quorum’

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

ORS 192.670.

Id.

See Handy v. Lane County, 274 Or App 644, 664-65 (2015), reversed on other grounds, 360 Or 605 (2016).

Id.

See generally Handy v. Lane County, 360 Or 605 (2016).

See Handy, 274 Or App at 664-66 (2015).

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.

See https://olis.oregonlegislature.gov/liz/2023R1/Measures/Overview/HB2805 (last accessed July 11, 2024).

ORS 192.630.

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are set by charter, bylaws, council rules, or ordinance. In the absence of a specific definition, the

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

clearly deliberations violate (if nothing more) the policy of OPML, which is to include the public

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

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

required, at any meeting at which a quorum is present.

In other words, only topics that relate to the business of

the governing body trigger the OPML. This subject

matter requirement means that members of a governing

body are free to gather to discuss a number of topics —

sports, television, literature — as long as these do not

concern the work of the governing body. Similarly, if a

quorum of a governing body meets to discuss matters on

ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 142 (2019).

ORS 192.620.

ORS 192.610(5).

ORS 192.610(1)

Social Gatherings? A quorum of

a governing body is permitted to

meet in a social setting without

triggering the OPML. Care must

be taken, however, to avoid any

discussion of public policy or

administration, lest the social

gathering evolve into an illegal

public meeting.

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which it has no authority to make a decision, it is not a “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

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.

III. REQUIREMENTS

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

holds a “meeting” as defined under the law.

Therefore, all regular, special, and emergency

meetings require notice, though the amount of notice depends on the meeting type. Generally,

notice is required for any interested persons and any media outlet that has requested notice.

ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 144 (2019) (citing 38 Op

Atty Gen 1471, 1474, 1977 WL 31327 (1977)).

Id.

ORS 192.640.

Id.

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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

ODOJ recommends that the list of principal subjects “be specific enough to permit members of

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

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

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

accessible to persons with disabilities.

The ODOJ suggests that notices include the name and

telephone number of a city employee who can help a person in need of a reasonable

accommodation.

iii. Amount of Notice

The number of days in advance a city must give notice of a public meeting depends on

ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 151 (2019).

Id.

ORS 192.640.

ORS 192.630(5).

ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 151 (2019).

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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

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

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”

exists and must describe the circumstances of the emergency in the meeting minutes.

Even

these meetings require notice; the OPML requires that emergency meetings be noticed in a

manner that is “appropriate to the circumstances.”

Furthermore, an emergency meeting may

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

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

executive session is required to give notice in the manner described above.

In addition, the

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

executive session.

Finally, unless the executive session is necessary to respond to an

emergency, the notice of the session must be provided with a minimum of 24 hours’ notice.

ORS 192.640(1).

ORS 192.640(3).

Id.

See Or. Ass’n of Classified Employees v. Salem-Keizer Sch. Dist. 24J, 95 Or App 28, 32 (1989).

Id.

ORS 192.640(2).

Id.

ORS 192.640(3).

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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.

First, the meeting space must have appropriate capacity.

Second, the meeting space must be

within the right geography.

Third, the meeting space must satisfy criteria for accessibility.

Fourth, the space must be a place of equality.

i. Capacity

The OPML provides that any and all public meetings must “be open to the public” and

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

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

different location than the ones described here.

iii. Accessibility

In three 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

LEAGUE OF OREGON CITIES, GUIDE TO EXECUTIVE SESSIONS (2019),

https://www.orcities.org/download_file/505/1852

last accessed July 11, 2024).

ORS 192.630(1).

ORS 192.630(4)

ORS 192.630(5).

ORS 192.630(3).

ORS 192.630(1).

ORS 192.630(4). A fourth option for most public bodies is to hold a public meeting within “Indian country.” Id.

Id.

See ORS 192.630(5)(a).

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other impairments.

Second, the public body must make a “good-faith effort” to provide an

interpreter at the request of deaf or hard-of-hearing persons.

Third, due to the coronavirus pandemic, the government—state and local—were forced

to adapt to virtual public meetings to meet the strict standards of allowing public access to the

elected official and public policy decision-making process. Oregon Legislature passed House

Bill 2560

in the 2021 session, requiring those remote options to continue.

This amendment

became effective January 1, 2022, requiring government agencies, whenever possible, to allow

the public to remotely attend public meetings—through telephone, video or other electronic

means—as well as give the public the ability to testify remotely.

The amendment emphasizes the requirement of governing bodies to make most public meetings

(excludes executive sessions) remotely accessible when it’s “reasonably possible.”

Members of

the media already have access to most executive sessions, but ORS 192.670 does not specify if

governing bodies must also provide remote access to the media for these meetings.

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

“good faith” requirement, this can be enforced only through the OPML.

The law defines a

“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

interpreters to provide interpreter services.”

iv. Equality

Public bodies are prohibited from holding meetings where discrimination is practiced on

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-

membership organization, but may if the location is not primarily used by such an organization.

Id.

See https://olis.oregonlegislature.gov/liz/2021R1/Measures/Overview/HB2560 (last accessed July 11, 2024).

ORS 192.670 (HB 2560) - Meetings by Means of Telephone or Electronic Communication.

Id.

See ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 154-55 (2019).

ORS 192.630(5)(e).

ORS 192.630(3).

Id.

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C. Recording and Retaining Minutes

The OPML requires that the governing body of a public body provide for sound, video,

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;

members unless requested by a member of that body, the vote of each member by

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

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

the participants.”

Upon conclusion of the meeting, the minutes must also be available to the

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

print, Braille, or audiotape.”

Finally, the OPML requires that minutes or another record of a public meeting must be

preserved for a reasonable time.

However, the Secretary of State’s Retention Schedule for

cities requires minutes of non-executive session meetings to be retained permanently.

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.

ORS 192.650(1).

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)).

ORS 192.650(1).

Id.

ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 161 (2019).

Id. at 162 (citing Harris v. Nordquist, 96 Or App 19 (1989)).

OAR 166-200-0235.

Id.

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D. Public Attendance and Participation

The OPML is a public attendance law, not a public participation law. Generally, meetings

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

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

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”

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

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

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

ORS 192.630(1).

ORS 192.660(7)(d)(C); ORS 192.660(7)(d)(D).

ORS 294.453

OAR 660-025-0080(2).

LEAGUE OF OREGON CITIES, MODEL RULES OF PROCEDURE FOR COUNCIL MEETINGS (2017),

https://www.orcities.org/download_file/604/1852 (last accessed July 11, 2024).

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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,

such as making a gesture, wearing certain clothing, or performing a symbolic act.

While the

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

activities.”

a. The Time, Place, and Manner of Speech

Under federal law, a city’s council meeting or similar meeting is considered a limited

public forum.

At a minimum, any expression of speech at a limited public forum in Oregon can

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

all of these restrictions must be viewpoint neutral.

100

The restrictions also must serve a

“legitimate interest” and provide “ample alternatives for the intended message.”

101

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

See White v City of Norwalk, 900 F2d 1421, 1425 (9th Cir 1990).

See Virginia v. Black, 538 US 343, 358 (2003).

See White, 900 F2d at 1425 (1990).

See Walsh v Enge, 154 FSupp3d 1113, 1119 (D Or 2015) (quoting Cornelius v. NAACP, 473 US 788, 799

(1985)).

See White, 900 F2d at 1425 (1990).

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 FSupp 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 F2d 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.

100

See White, 900 F2d at 1425 (1990).

101

See Babson, 355 Or at 408 (2014).

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discriminating against a given viewpoint.

102

That said, cities generally will avoid triggering the

First Amendment if their restrictions serve “purposes unrelated to the content of expression.”

103

This is true even if an otherwise valid restriction, under particular circumstances, “incidentally

burdens some speakers, messages or viewpoints.”

104

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

form of expressive conduct, i.e., speech, it can be regulated.

105

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

governing body’s ability to conduct business.

106

In Norse v. City of Santa Cruz, for example, the

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

justified in removing the individual from the meeting.

107

In reaching its decision, the Norse

Court found that “[a]ctual disruption means actual disruption. It does not mean constructive

disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary

disruption.”

108

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

102

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),

103

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(1989)).

104

Id.

105

Norse, 629 F3d at 976.

106

Id.

107

Id.

108

Id.

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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

exceeds the bounds of reasonableness … as a response to a single act of disruption."

109

Similarly,

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

past.”

110

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

Guide to Handling Disruptive People in Public Meetings (2017).

111

IV. EXECUTIVE SESSIONS

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

discussed above still apply, such as notice, location, and minute-keeping requirements.

112

For a thorough assessment of how executive sessions apply to cities, including sample

notices and a model media policy, consult the LOC Guide to Executive Sessions.

113

A. Executive Sessions for Municipalities

The Oregon Legislative Assembly has identified 16 circumstances in which an executive

session is authorized.

114

Of these, 12 circumstances are likely to be used by municipalities:

109

Reza v Pearce, 806 F3d 497, 505 (9th Cir 2015).

110

See Walsh v Enge, 154 FSupp. 3d 1113, 1119 (D Or 2015).

111

LEAGUE OF OREGON CITIES, LEGAL GUIDE TO HANDLING DISRUPTIVE PEOPLE IN PUBLIC MEETINGS (2017),

https://www.orcities.org/download_file/384/1852 (last accessed July 11, 2024).

112

See ORS 192.660; see also ORS 192.610(2) (defining an executive session as a “meeting.”).

113

LEAGUE OF OREGON CITIES, GUIDE TO EXECUTIVE SESSIONS (2017),

https://www.orcities.org/download_file/505/1852

last accessed July 11, 2024).

114

ORS 192.660.

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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

group;

115

• To discuss an officer’s salary.

116

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

subject of the deliberations must be provided with an opportunity to request an open hearing.

117

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.

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

with the person they have designated to act on the city’s behalf during labor negotiations.

118

Note

that this is one of the few meetings where news organizations and the media can be excluded

from an executive session.

119

4. Persons designated by the governing body to negotiate real property transactions.

115

See ORS 192.660; see also ORS 192.660(7)(a)-(d).

116

See generally 42 Op Atty Gen 362, 1982 WL 183044 (1982).

117

ORS 192.660(2)(b).

118

ORS 192.660(2)(c).

119

ORS 192.660(4).

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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

transactions.

120

A real property transaction likely may include the purchase of real property, the

sale of real property, and/or negotiations of lease agreements.

121

The deliberations conducted

during an executive session held under this provision must concern a specific piece of property

or properties—the session may not be used to discuss a city’s long-term property needs.

122

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

be reviewed must otherwise be exempt from public inspection under state or federal law.

123

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

reason to believe it is in competition with other governments on a “trade or commerce” issue.

124

7. Rights and duties of a public body as to current litigation or litigation likely to be filed.

A governing body may use executive sessions as a way to consult with legal counsel

about current or pending litigation.

125

In the event the litigation is against a news organization,

the governing body must exclude any journalist who is affiliated with the news organization.

126

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

open hearing.

127

Clearly, this means that the governing body must notify the individual well in

advance and determine whether they wish to have an open hearing.

120

ORS 192.660(2)(e).

121

ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 165 (2019).

122

Id. (citing Letter of Advice to Rep. Carl Hosticka, 1990 WL 519211 (OP-6376) (May 18, 1990)).

123

ORS 192.660(2)(f).

124

ORS 192.660(2)(g).

125

ORS 192.660(2)(h).

126

ORS 192.660(5).

127

ORS 192.660(2)(i).

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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.

This provision allows cities to conduct negotiations about certain public investments.

128

The final decision on these investments must occur in an open public meeting (see below).

129

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

systems and the “generation, storage or conveyance of” certain resources or waste.

130

11. To consider matters relating to the safety of the governing body and of public body staff

and volunteers and the security of public body facilities and meeting spaces.

131

12. To consider matters relating to cyber security infrastructure and responses to cyber

security threats.

132

B. Final Decision Prohibition

Under the OPML, executive sessions must not be used “for the purpose of taking any

final action or making any final action.”

133

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

public session satisfies the requirement, even if the vote merely confirms the consensus reached

in executive session.

134

128

ORS 192.660(2)(j).

129

ORS 192.660(6).

130

ORS 192.660(2)(n).

131

ORS 192.660(2)(o). HB 2806 in 2023 Oregon Legislature added this topic to qualify for executive session.

132

ORS 192.660(2)(p). HB 2806 in 2023 Oregon Legislature added this topic to qualify for executive session.

133

ORS 192.660(6).

134

See ODOJ, ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL 173-75 (2019).

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C. Media Representation at an Executive Session

Representatives of the news media must be allowed to attend all but two types of

executive sessions.

135

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

negotiations or an executive session held by a school board to discuss certain student records.

136

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

the executive session.

137

Even though news organizations are permitted to attend virtually every executive session,

governing bodies may prohibit news organizations from disclosing certain specified

information.

138

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

technologies for delivering the news.”

139

The conclusion reached by the attorney general seems

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

the law was originally adopted.

140

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

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.

135

ORS 192.660(5).

136

Id.

137

ORS 192.660(5).

138

ORS 192.660(4).

139

See generally Op Atty Gen 8291 (2016).

140

Id.

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V. ENFORCEMENT

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

governing body.

141

Lawsuits may be filed by “any person who might be affected by a decision

that might be made.”

142

A plaintiff may also file suit to determine whether the OPML applies to meetings or

decisions of the governing body.

143

Under ORS 192.680(5), any suit brought under the OPML

must be commenced within 60 days following the date the decision becomes public record.

144

A successful plaintiff may be awarded reasonable attorney fees at trial or on appeal.

145

Whether to award these or not is in the court’s discretion.

146

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,

each is liable for the amount of attorney fees paid to the successful applicant.

147

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

void a decision, but such an action is not mandatory.

148

The law permits a governing body that

violates the OPML to reinstate the decision while in compliance with the law.

149

If a governing

body reinstates an earlier decision while in compliance with the law, the decision will not be

voided and the decision is effective from the date of its initial adoption.

150

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

141

ORS 192.680(2).

142

See Harris v. Nordquist, 96 Or App 19, 23 (1989).

143

ORS 192.680(2).

144

ORS 192.680(5).

145

ORS 192.680(3).

146

Id.

147

ORS 192.680(4).

148

ORS 192.680(1).

149

Id.

150

Id.

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the governing body.”

151

In that case, the court will void the decision “unless other equitable

relief is available.”

152

B. Civil Penalties for Violations of ORS 192.660

Apart from the enforcement provisions described above, the Oregon Government Ethics

Commission (OGEC) may review complaints that a public official has violated the executive

session provisions of the OPML as provided in ORS 244.260.

153

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 occurred.

154

If the commission finds a violation of the executive sessions provisions,

the commission may impose a civil penalty not to exceed $1,000.

155

If, however, the violation

occurred as a result of the governing body acting on the advice of its legal counsel, the civil

penalty may not be imposed.

156

Further, the OGEC was granted additional authority in the 2024 Legislative Session in

House Bill 4117.

157

This HB expanded the scope of authority of the OGEC to give advice on

public meetings laws, issue advisory opinions on the application of the public meetings law to

actual or hypothetical circumstances, authorized the executive director of the commission to

issue staff advisory opinions or written or oral staff advice on the application of the public

meetings law to actual or hypothetical circumstances, and permits other commission staff to

issue written or oral staff advice on the public meetings law. The OGEC now hears complaints

and renders decisions about allegations of impermissible ethics, executive sessions, and all

provisions of the public meeting laws, effective March 20, 2024.

151

ORS 192.680(3).

152

Id.

153

ORS 192.685(1).

154

ORS 192.685(2).

155

ORS 244.350(2)(a).

156

ORS 244.350(2)(b).

157

See https://olis.oregonlegislature.gov/liz/2024R1/Measures/Overview/HB4117 (last accessed July 11, 2024).