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State agency is looking into possible executive session violations by the council

PMG FILE PHOTO - The Oregon Government Ethics Commission is launching an envestigation of possible executive session violations by the West Linn City Council. The Oregon Government Ethics Commission (OGEC) is launching an investigation into possible executive session violations committed earlier this year by the West Linn City Council.

According to a preliminary review by the OGEC, the possible violations occurred April 1, June 3, Aug. 5 and Sept. 3.

The OGEC reviewed recordings of the executive sessions on those dates after West Linn citizen Rory Bialostosky and former city councilor Brenda Perry brought them up in complaints filed with the OGEC.

Both Bialostosky and Perry allege that the council violated executive session laws by deciding to let the City's legal services firm defend Councilor Teri Cummings in a lawsuit filed by Bialostosky, a decision with fiscal impacts for both the City and Cummings. Through September, the City had paid over $29,000 in legal fees for this lawsuit.

Bialostosky sued Cummings after making two records requests for the notes she had taken in her duties as a councilor, which were both denied.

"There appears to be a substantial objective basis that violations of ORS 192.660(2)(h) and (6) may have occurred at West Linn City Council executive sessions held on April 1, 2019, June 3, 2019, Aug, 5, 2019 and Sept. 3, 2019," states the OGEC's preliminary review.

Bialostosky and Perry filed separate and somewhat distinct complaints with the OGEC. Perry's complaint mentions the June 3, Aug. 5 and Sept. 3 executive sessions; Bialostosky's does not mention the Sept. 3 session but adds the April 1 meeting. Perry's complaint was specifically about the council making financial decisions during executive session, in violation of Oregon law, which states, "No executive session may be held for the purpose of taking any final action or making any final decision."

Perry, a former city councilor, also alleged that the topics discussed at the executive sessions were not authorized for executive session.

Bialostosky went slightly further in his complaint by adding that the council was discussing litigation pertaining to only one council member and not a "public body." This, Bialostosky argued, violates executive session laws which state that members of a governing body may meet in executive session to discuss litigation pertaining to the public body, but does not mention an individual member of the body.

A few members of the commission found this relevant, especially given that Cummings' defense in the lawsuit was that she as an individual was not a public body and therefore did not need to turn over her council notes. In July, a judge with Clackamas County Court decided that though Cummings was named in her official capacity in the lawsuit, she was not a public body.

"If the defense is 'I took these notes in my private capacity but I've got the City Attorney sitting here representing me,' that seems a little incongruous, at least for the purposes of the inquiry we have in front of us," one commissioner stated at a Nov. 22 OGEC meeting.

Chris Dolan represented Cummings in the lawsuit and is an associate of City Attorney Tim Ramis. Dolan was also present at the Nov. 22 ethics commission meeting and countered this by saying, "The definition of public body for the public disclosure statement is a very limited statute and applies only to whether or not one has to submit those documents. It doesn't have anything necessarily to do with whether or not the City has to provide a defense to Councilor Cummings, who was sued in her official capacity. The definition we relied on has nothing to do with how the City Council works or funds litigation."

One member of the commission noted that the issue of when and if Cummings is considered a "public body" would likely be the main crux of an OGEC investigation.

Another commissioner pointed out that for the investigation, the OGEC does not need to follow the argument Cummings and Dolan used in the lawsuit.

The commission eventually voted unanimously to launch the official 180-day investigation of the four previously mentioned executive sessions of the West Linn City Council. The commission has the power to either reprimand or fine the officials it finds in violation of state law.

"I am grateful that residents in Oregon have a commission that has the authority to investigate governmental wrongdoing during closed executive sessions," Bialostosky said of the decision. "I am pleased that the Ethics Commission determined that there was evidence to find that an investigation into the financial misconduct and unauthorized closed meetings is warranted."

Cummings and Dolan did not respond to requests for comment for this article.

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