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Ethics commission declines to charge St. Paul councilors

Case will be dropped after commission fails to reach consensus on whether violations occurred at fall 2015 meeting


Three St. Paul city councilors will not face a penalty for holding a controversial executive session last fall, as the Oregon Government Ethics Commission ended its discussion and deliberation on the case without making any definite decision early this month.

The commission could not come to a majority agreement on whether the councilors violated public meetings law, and the window for a decision will have expired before the commission’s next meeting.

St. Paul Mayor Kim Wallis submitted a complaint to OGEC in November, detailing concerns over a Nov. 12 executive session held by three members of the council, Rosemary Koch, Jenni LaFevre and Joel Halter.

Councilor Mike Bernard had an excused absence that day, while Wallis chose not to attend due to his concerns.

The session was planned to interview a candidate for the city attorney position, which had been vacant since John Rankin resigned in August.

Attorney Laura Schroeder applied for the position, but Wallis was concerned the prerequisites required by state law were not met to hold an executive session.

After examining the evidence and interviewing the involved parties, OGEC investigator Marie Scheffers determined the concerns were valid and recommended the commission make a finding that the St. Paul councilors violated public meetings law.

For one, the council was actually considering contracting with Schroeder’s law firm as a whole, including other lawyers in her office, but the executive session law allows a closed meeting only to consider hiring an individual who would be employed by the city.

Second, Scheffers found that even if contracting with the law firm could be interpreted as hiring an individual, aspects of the executive session violated the law: rates were discussed (albeit briefly) in the closed session, there was no official time for public comment on the hire prior to the executive session, and the city had no official hiring procedures in place prior to the session, all of which constituted violation, Scheffers found.

One provision of the law waives the possibility of a monetary fine if councilors are told by their official legal counsel that the executive session is allowed. According to the investigation the councilors asked Schroeder whether an executive session was appropriate in this case, and they said she indicated it would be permissible. But she was not yet the city’s official legal counsel, meaning a fine was still a possibility.

However, in the end OGEC could not come to a consensus and the investigator’s recommendation went unheeded.

Commission members commented on the fact that there were some extenuating circumstances surrounding the executive session in question.

For instance, the council was technically without legal counsel – which was the very reason for the council meeting in question.

“It’s … this odd place that you’re hiring an attorney so you didn’t have an attorney to advise you,” Commissioner Alison Kean said during OGEC’s July 1 meeting. “It seems very understandable that a volunteer commission without a lawyer might find this understandably something that they might think would be allowed in an executive session. I think our discussion here shows that it’s a little bit unclear.”

Councilors Koch and LaFevre attended OGEC’s July 1 meeting and offered some perspective on the case, particularly the confusion councilors felt about allowed executive sessions.

“We had an ethics training after this incident,” LaFevre told the commission. “But even in that training I don’t feel there is enough information under topics to really get to the nitty gritty as to what is the real procedure on a lot of these.”

Still, while there was some confusion over whether the session was allowed or not, OGEC general counsel Lynn Rosik reminded commissioners that the mayor himself had chosen not to attend the meeting due to concerns that it was being held illegally.

“It wasn’t as if that issue had not come up at all,” Rosik said, adding that “it wasn’t a matter of that there was no inkling that there was an issue about this executive session. They knew.”

OGEC executive director Ronald Bersin told the councilors about the attorney general’s manual on public meetings that covers executive session policies, available on the state’s website.

“This is a conundrum,” OGEC chairman Charles Tauman said, noting the commission may want to consider clarifying executive session laws further in the future.

Bersin told the commission if they took no action within 180 days of the St. Paul complaint, it would expire, meaning commissioners either had to decide at the July 1 meeting or choose to do nothing on the case.

But the issue split the commission in its decision on how to treat the violations, partially because OGEC has two vacant positions right now. Its charter states a “majority” is five affirmative votes of the total nine seats, and no action rose to the minimum five vote agreement.

Following the lengthy discussion, a first motion to dismiss the case altogether failed 4-3.

A second motion to adopt the staff recommendation that acknowledges a violation by the St. Paul councilors also narrowly failed, with the same vote of 4-3.

So, nothing will be done.

“I believe this concludes this item, rather un-dramatically,” Tauman noted at the end of the hearing, with others highlighting that the commission was essentially closing the matter undecided. “And in some ways, maybe in view of the concern and acknowledgement of ambiguities, this is the best thing. I will repeat my call for rulemaking on this subject …”

Tauman invited the St. Paul councilors to be a part of that additional rulemaking when it happens, particularly as they have experienced firsthand some of the vagaries of executive session law.

Wallis, the original complainant, said after the OGEC hearing that he was satisfied with the results and that his purpose in reporting the possible violation was to self-notify the state that the council may have made a mistake, rather than appear to be hiding the error.