Public records plaintiff to file ethics complaint
West Linn resident Rory Bialostosky believes the West Linn City Council violated executive session and conflict of interest laws related to the lawsuit he filed in the spring against Council President Teri Cummings.
The 19-year-old says he plans to file a complaint against the council with the Oregon Government Ethics Commission (OGEC) soon.
In March, Bialostosky filed suit against Cummings for failing to turn over her council notes, which he believed were public records. In July, a judge serving in Clackamas County Circuit Court sided with Cummings, ruling that she was not a public body and therefore not subject to public records law, —a decision that shocked other government officials, lawyers and public records advocates.
"I think it's an unprecedented interpretation of the law, an area of the law that has been pretty well settled, that everyone agrees that city councilors are a public body for the sake of the public records law," Oregon Public Records Advocate Ginger McCall said. "It was a little bit confusing to hear the court say something different."
Now, Bialostosky says that the council violated executive session laws by deciding to allow the law firm of City Attorney Tim Ramis to represent Cummings in the lawsuit in a closed executive session, where final decisions are not allowed to be made, according to Oregon law.
This is the same concern that former councilor Brenda Perry expressed to the council during public comment at a meeting Aug. 5. Perry considered making a complaint to the OGEC also but decided against it to avoid further harming what she sees as the City's already-poor statewide reputation on transparency and burdening taxpayers with the additional fees that the City would spend to litigate.
Bialostosky and Perry pointed out that the City Council Rules prevent councilors from making legal inquiries of the City Attorney that last more than 15 minutes.
"It was clear that advising Councilor Cummings on how to respond to the request for her notes and on whether and how to defend against the subsequent lawsuit would take longer than 15 minutes," Perry said at the Aug. 5 meeting. "When was this decision made? There was no discussion or vote at a public meeting. It must have happened at one of the multiple executive sessions on this topic."
Cummings said she feels Perry has no grounds to bring up these concerns because the OGEC found Perry violated executive session laws last October, along with Mayor Russ Axelrod and former Councilor Bob Martin.
Bialostosky is bringing up a new point in his complaint that Perry hadn't mentioned: Was it a conflict of interest for Cummings to weigh in on the decision for the City to pay the city attorney to litigate the case on her behalf?
Bialostosky mentioned Oregon's laws regarding conflicts of interest, which state "a public official may not use or attempt to use official position or office to obtain financial gain or avoidance of financial detriment."
The City has spent over $16,000 in legal costs to on this matter so far.
Perry said that when she approached the OGEC about filing a complaint, the commission told her an official review would be warranted. This bodes well for Bialostosky, who wants these matters looked at.
"Obviously, I'm unsure (exactly what happened in executive sessions), but all I can say is an investigation is warranted," Bialostosky said.
Like Perry, Bialostosky said he is also conscious of taxpayer money.
"I think that at least an investigation into whether Council is misusing and illegally spending taxpayer money behind closed doors is warranted and worth the amount that would be spent as it could actually save the taxpayers money down the road."
In response to Perry's comments at the August meeting, Ramis defended the executive session in question, saying the conversations should have been private on the basis of client-attorney privilege.
Cummings responded to Perry's comments by saying that Bialostosky's request was overly broad, which she believes left the council no option but to fight the case. Bialostosky said Cummings' argument is missing a key element.
"What she fails to mention is that there was no opportunity to negotiate the scope until months into the litigation. Usually the process is a person requests records, then in that period of time, where the public body is responding to the request, they say, 'Hey, can you reduce the scope?' Bialostosky said. "I would have been happy to talk to her then. But she didn't. She ignored me and then I filed the lawsuit and then weeks later, her lawyers are like 'Hey, let's negotiate.' At that point, I'd already put in hours of legal research time and my own money into it."
Cummings claims the City made attempts to negotiate the scope of the request with Bialostosky before he filed the suit. The Tidings made a records request for the correspondence between Bialostosky, Cummings and the City regarding Bialostosky's request for the notes but hasn't heard back at the time of this article's press deadline.
Bialostosky originally requested the notes because he feels Cummings has ignored the interests of the majority of West Linn citizens.
"I was trying to view the notes to understand why Councilor Cummings has been hostile towards the city manager and city staff, why a staff member was accused of electioneering, those sorts of questions," he said. "All of what I was trying to investigate was validated by the record of what took place at meetings. The Councilor was removed from the Youth Advisory Council by the kids; what was she doing at those meetings that resulted in the kids voting to replace her?"
Bialostosky feels the council is very dysfunctional and not leading West Linn in a positive direction. As the leader of the council's "de facto" majority, he feels Cummings has had the biggest part to play in the dysfunction.
Cummings feels this isn't reason enough to request her meeting notes without narrowing the scope.
"This thing with Rory? What the hell am I guilty of? He just doesn't like my politics," she said.
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