Council accepts settlement, admits violating public meeting law

West Linn Mayor John Kovash and City Councilors Jenni Tan, Jody Carson and Mike Jones admitted to violating Oregon public meeting laws during an executive session back in March 2012, according to a settlement reached with the Oregon Government Ethics Commission last week.

The settlement papers, which were signed by the four council members in July and approved by ethics commission chairman Ian Whitlock on Friday, acknowledged that they “violated executive session provisions of Oregon public meetings law by participating in an executive session when topics prohibited by ORS 192.660(8) were discussed” and that they “wished to conclude this matter by agreeing to the terms and conditions in this order without completing the investigation phase.”

“We don’t think it’s worth fighting the issue,” Kovash said. “Our lawyer approved the process, and it was an issue related to process ... so (the ethics commission) can’t really impose anything upon us. So, we said, ‘Let’s settle it,’ and they agreed.”

Because the council was acting on advice from City Attorney Tim Ramis when it held the executive session in question, the ethics commission will not impose any civil fines. Each council member will receive a “letter of education” from the commission as part of the settlement.

The decision comes as a response to an ethics complaint, filed March 11 by West Linn resident Karie Oakes and former City Councilor Teri Cummings, that named Kovash and City Manager Chris Jordan as well as Jones, Carson and Tan. Oakes and Cummings alleged that the city council had misused a March 12, 2012, executive session to hire an in-house attorney, which violated public meeting laws.

Though Jordan’s name was removed shortly after the complaint was filed — he was not present at the executive session — the ethics commission decided in March to move forward with its preliminary investigation. The ethics commission’s preliminary review document, dated June 27, stated there was reason to believe that the councilors had indeed violated ORS 192.660 during the executive session.

ORS 192.660 states, in part, that a governing body may not “conduct a general evaluation of an agency goal, objective or operation” during an executive session marked for a specific employee evaluation.

The complaint filed by Oakes and Cummings suggested that the majority of the council’s March 12 executive session had to do with reconfiguring the delivery of legal services, rather than reviewing the performance of Ramis.

Cummings — who was an active councilor at the time — was present for the session but left before the council reconvened for its public meeting. At that time, a motion to allow Jordan to recruit, hire and supervise an in-house attorney was passed 4-0, which Cummings thought was not properly advertised to the public.

Audio from the pre-meeting work session on March 12, 2012, shows that it was Ramis who first suggested using the executive session as a performance review to discuss the in-house attorney option. When Kovash asked if it was possible to discuss “what we want to do with a system, rather than performance,” Ramis said, “I don’t have any objections.”

In the end, Ramis marked the violations up to a miscommunication. When Kovash referred to “system” discussions, Ramis said he believed the mayor was referring to how the Jordan Ramis firm delivered services — which would be legal to discuss in a performance review.

“I was asked if they could have an executive session on the performance of the attorney, and I said yes and waived the right to be there,” Ramis said. “They were not advised by our office that they could talk about topics beyond what was allowed by the statute. They just asked if they could discuss the subject of the office and how it’s doing, and I said, ‘Yes, that’s a performance review, they can do that.’

“Councilors are not trained lawyers, and I can understand how the conversation strayed (beyond what was allowed).”

Ramis said that when he learned about the potential statute violation, he advised the council to take remedial action by discussing the matter again at an open meeting and re-conducting the vote to hire an in-house attorney.

That discussion took place during the council’s regular meeting on May 14, 2012, and attorney-client privileges between Ramis and the council were waived to allow for a confidential memorandum on the topic to be made public.

“As soon as we noted that error, we had a public meeting and corrected it,” Jones said.

Once again, a motion authorizing the city manager to recruit, hire and supervise an in-house attorney was passed — this time by a 4-1 vote. Cummings voted “no,” stating that she did understand the intentions behind the process and the council still had not provided enough information to the public.

In the end, the ethics commission acknowledged this “remedial action” in the final settlement but maintained that a violation had nonetheless occurred. City officials will chalk it up as a lesson learned, and in March the city council rules were updated to require an announcement prior to any executive session if the council intends to conduct a formal vote afterward.

It was not enough for Cummings, who thinks the city showed “blatant disregard” for public process and did not allow enough outside input on a crucial systemic change.

“Public trust depends on an open process,” Cummings said.

Oakes, for her part, said the end result was about what she expected when she and Cummings filed the complaint, but she remains skeptical about whether procedures will change going forward.

“Because of the way they have made an excuse that they acted upon a lawyer’s advice, I don’t feel they have owned up to this,” Oakes said. “And I really do question whether it’s going to change their behavior in the future.”

One thing that won’t change is Ramis’ role with the city, despite the miscommunication that caused the violation. Ramis has served as a city attorney for more than 20 years, and there are no plans to change that, according to Kovash and Jones.

“Has there been a little frustration? I would say ‘yes,’” Jones said. “But you can only control what you can control.”

“We’re just trying to do the right thing,” Tan said. “There was no intent to break any laws. That’s why we have our legal counsel.”

As a partner at the Jordan Ramis firm, Ramis is also a city attorney for Tigard and Milwaukie, and before entering private practice he was the assistant county counsel for Washington County.

“The key thing (in retrospect) would be to make sure the council announced ahead of time that they were taking action after the executive session,” Ramis said. “And in hindsight, I should not have agreed to not be present. Had I been there, I could have limited the conversation within the statutes.”

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