Questions about public notice of planned code change, conflict with charter raised

Meshell Before accepting a contract to hire an interim city manager at a meeting Monday, Dec. 16, the Scappoose City Council voted to amend a city municipal code to effectively strip the city manager position of its ability to hire or city officers.

At the start of the new year, the city manager will have to seek and receive approval from the City Council prior to hiring or firing city employees.

Unclear, however, is the council’s motivation behind the rule change. Additionally, an attorney familiar with Oregon’s public meetings law said the council might be in violation of the law by failing to provide sufficient public notice it intended to amend a city ordinance.

Laura Cooper, a partner in the Bend office of the Portland law firm Ball Janik LLP, said there are occurrences in which topic discussions not advertised or listed on the agenda lead to governmental action.

“Sometimes things just come up in the course of the meeting,” Cooper said.

Cooper drew a distinction, however, between impromptu discussions resulting in decisions and actions planned prior to the start of a meeting.

“If you have an action you intend to take, it is supposed to be on the agenda of the meeting,” she said.

In this case, Councilor Jason Meshell brought the motion to the table following his reading of a prepared statement.

“If it was pretty clear that somebody had planned to bring it up, then I think it certainly circumvents the law,” Cooper said. “The intent is to allow a meaningful opportunity to the public to come to meet and participate if they want.”

Scappoose Mayor Scott Burge, who was present but did not vote on the code amendment, said he had some concerns about the city’s failure to notify the public before amending the municipal code. Although he didn’t verbalize a vote, Burge’s choice to remain quiet counted as a “yes” vote, said Susan Reeves, Scappoose City Recorder.

“I wish I would’ve known about it before it came up at the meeting or at least added it to the agenda,” he said. “Any council member can add an item to the agenda. That way we know what the council wants to do and the attorneys have a chance to look it over. Now, we’ve passed something and the attorneys have to do their homework.”

Councilor Donna Gedlich was not in attendance.

There is also some question about whether the amended municipal code conflicts with the city charter.

While the rule change gives council the opportunity to vote on the city manager’s hiring and firing recommendations, the city charter states the city manager shall supervise, discipline and have authority over the city’s officers and employees. That authority is prescribed by rules of the council, according to the charter.

Burge said he is waiting for confirmation from the city attorney on whether the ordinance amendment conflicts with the city charter. If it does, the city charter, not the ordinance, would be the ruling document.

Cooper explained, “The general rule is that the charter governs when there’s a dispute between the charter and the code, because it’s very similar to the United States Constitution.”

“The City Council cannot pass an ordinance that conflicts with the charter,” Cooper added.

Burge told the Spotlight Thursday he doesn’t think the rule change will “stand up to the legal muster.” He said prior council members have tried to pass rules within the municipal code to require a council vote before a city manager could make any action to hire or fire, but were told by the city attorney it would violate the city charter.

“My goal Monday was just to get [interim City Manager] Don Otterman contracted,” Burge said, noting that he didn’t fight the motion to amend the municipal code. “For me it was when do you fight, and when do you let the legal system handle it?”

Burge said he didn’t know why the councilors wanted the rule change and added that the previous city manager, Jon Hanken, didn’t abuse the position’s authority to hire and fire staff.

“I can only think of a handful of people [he fired],” Burge said.

Hanken held the city manager position for a decade, between 2003 and when the City Council voted to terminate his contract last month.

Initially, Meshell moved to amend the city charter. City Attorney Ron Guerra halted that action, however, noting that the city’s residents need to vote on suggested changes to the charter by a popular vote.

Guerra then called for a short recess to discuss with Meshell how to go about moving to adopt a rule in the municipal code. Meshell then read from a motion he prepared during the recess.

Meshell presented the motion to adopt the new rule after discussion between Councilors Barbara Hayden and Mark Reed, who expressed concern over hiring an interim city manager who would make decisions the city would have to “live with” long after the interim manager’s contract expired.

“This agreement gives me pause that, whether it’s Mr. Otterman, or whomever comes in here for a short period of time, has a full authority of a full-time city manager, and I know it’s subject to our charter but our charter doesn’t state that we have to hire an interim city manager, and I’m concerned about decisions that are being made under this purview that we’re gonna have to live with someone who is not going to be here for more than three to six months,” Hayden said.

The ordinance change, as it was adopted, would also apply to future full-time city managers hired on a long-term basis, not just interim city managers.

Otterman said he understood Hayden’s concerns, but added that the city charter contains no provision to differentiate between the responsibilities of interim city managers and permanent city managers.

“I am bound to report to you what your law provides, and ... pursuant to the city charter that the city of Scappoose has in place, the administrative head of the city is the city manager, whether they be interim city manager or full-time city manager,” Otterman said.

Councilor Mark Reed agreed with Hayden, saying, “I think it gives too much authority for someone who will be here on a temporary or interim basis, making decisions that we will have to live with two or three years down the road.”

Not discussed at the meeting was how the new law may apply to Scappoose Police Chief Douglas Greisen, who is currently on an extended paid leave of absence pending the results of two ongoing investigations into a claim he led a hostile work environment and the discovery of cash and bank receipts tied to an unauthorized account found in a locked drawer in his office.

Another investigation into Greisen’s supposed mismanagement of a Feb. 4 pursuit sustained all allegations that he violated multiple departmental policies during the pursuit. A committee of city councilors made up of Hayden, Meshell and Reed found that investigative report “null and void,” claiming it was erroneous and “not an objective review.”

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