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Ethics commission returns to St. Paul

Government — Complaint by mayor alleges councilors held illegal executive session

Three St. Paul city councilors are the subject of an Oregon Government Ethics Commission investigation following a preliminary review that found evidence the councilors violated Oregon public meetings law during the fall.

It began in November when the City Council planned to hold an executive session in connection with hiring a new city attorney. Former City Attorney John Rankin resigned last summer, and St. Paul had been in the market for new legal counsel and had advertised the position for several months.

With few inquiries about the city attorney position, Mayor Kim Wallis asked a group of other mayors, city managers and city staff around the state whether anyone knew of a qualified city attorney who’d be interested in the job. A name was recommended and Wallis contacted the potential applicant directly to ask if he would be applying.

But fellow St. Paul councilors objected to this move, explaining that the city’s hiring process required the city to advertise the position and then interested parties would contact the city and ask for a copy of the request for proposal approved by the council.

Deviating from that process and contacting a potential applicant directly, councilors Rosemary Koch and Joel Halter said, could give that candidate an unfair advantage. So the council did not consider the applicant Wallis had contacted directly and was left with a single prospective city attorney, Laura Schroeder.

On Nov. 12, the council planned to interview Schroeder in executive session, then move into regular session to decide whether to hire her for the job.

This, again, proved contentious.

In the days leading up to the planned executive session, Wallis told the other members of the council he believed an executive session would not be allowed in accordance with public meetings law, because certain criteria had not been met.

Wallis then emailed his fellow councilors the day of the meeting, explaining he would not be attending the session due to his concerns and advising the council to cancel the executive session and instead conduct the interview publicly during the regular open meeting.

Still, three councilors – Koch, Halter and Jenni Lafevre (councilor Mike Bernard was out on an excused absence) – held the executive session to interview Schroeder.

During the open session that followed, Halter explained that he had queried the League of Oregon Cities as well as two other attorneys and they had assured him it was legal to hold the executive session, according to meeting minutes. That evening the council voted to hire Schroeder.

Twelve days later, Wallis submitted a complaint to the OGEC, alleging the council had illegally held the executive session.

“I filed the complaint with the OGEC as Oregon public meetings laws are in place to provide that the deliberations and decisions of public officials are to be made in public, except under very narrowly defined circumstances,” Wallis said in an email. “If a possible violation of the public meeting laws occurs, I believe I have a duty to report it.”

OGEC investigator Marie Scheffers began looking into the incident, examining the evidence provided by Wallis, documentation surrounding the meeting and a rebuttal letter from Koch, Halter and Lafevre.

Wallis’s complaint “alleges that the city councilors ‘touched on questions of policy’ in the executive session … rather than limiting the topic of the executive session to the interview of the prospective city attorney,” Scheffers wrote in a preliminary report on the case.

Executive sessions are closed to the public and the allowed topics of discussion in executive sessions are tightly constrained.

Scheffers highlighted a few points of concern with the closed session in question.

The Nov. 12 executive session was held per ORS 192.660(2)(a), which permits a closed session “to consider the employment of a public officer, employee, staff member or individual agent.” In these sessions the discussion can pertain only to the “initial hiring of individuals,” Scheffers wrote, adding that the attorney general has previously determined that the potential employee’s salary cannot be discussed in such an executive session.

While Scheffers noted that it is “not clear to what extent the issue of the contract with the attorney may have been discussed in the executive session,” she also wrote that “the attorney mentioned that she told the councilors in the interview that some of her rates were negotiable.”

Other prerequisites to holding an interview in executive session include that the city must have advertised the available position, that the city has adopted regular procedures for hiring, and that the public has had an opportunity to comment on the potential hiring of the officer.

Although the city certainly advertised the position, Scheffers noted that “the sufficiency of the hiring procedures is not clear” and that the public was “afforded the opportunity to comment on the contract with the prospective attorney only after the interview took place.”

Koch, Halter and Lafevre responded to the allegations in a letter received by the ethics commission on Dec. 7, stating they “do not feel we knowingly abused the public meetings laws on executive sessions.”

As far as the lack of clearly established hiring process, they responded that the council had “proceeded per past city standard practices.”

In a normal situation, they wrote, city recorder Lorrie Biggs would check with the city attorney about executive sessions, but the council was naturally without a city attorney for this period of time.

Furthermore, the councilors wrote, “we have been misinformed many, many times on legal documentation/issues, so council members have become very skeptical about information, advice and opinions from the previous attorney and the current mayor.”

The councilors could not be reached for further comment on the situation.

Scheffers found enough evidence upon initial inspection to warrant a deeper look into the incident.

“There appears to be a substantial objective basis to believe that one or more violations of the executive session provisions of Oregon public meetings law may have occurred” during the Nov. 12 session, Scheffers wrote in her report, concluding that the OGEC should investigate the case further.

The OGEC voted Jan. 15 to begin an investigation into the case, OGEC executive director Ronald Bersin informed Wallis in a letter last month. OGEC staff will begin the investigation “as soon as possible” and an investigative report will be presented to the ethics commission within 180 days of Jan. 15.

The ethics commission has been drawn into St. Paul matters unusually often during the past year. Former Mayor Steve Manners was the subject of an ethics investigation that alleged he removed a shed from city property for personal use. Although the shed was dilapidated and allegedly worth about $5 – and Manners said he had volunteered to remove it as a service to the city – the commission found he had technically violated the ethics handbook. Manners was later asked to sign a letter last spring explaining the ordinances he had violated, and no financial penalty was levied.

Later in the year, Wallis queried OGEC for advice on a quandary the city found itself in, in which two city employees were related to two city councilors.

The ethics commission asked its legal counsel to review the scenario and gave the St. Paul council guidance on when those councilors should recuse themselves from an issue, and when there would be no ethical breach.

Prior to the past year the ethics commission had not taken up a case in St. Paul since at least 2007, when the OGEC’s online records begin.