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Complaint alleges public meeting law violations

West Linn City Councilor Teri Cummings, along with resident Karie Oakes, has filed a lawsuit against the city over an executive session held back on March 12.

The complaint, dated May 17, lists several alleged meeting violations committed by staff and city council members, although the suit is just against the city of West Linn.

Cummings informed the city council of the filed complaint at a May 21 work session.

"I hope we can get this resolved as soon as possible," Cummings said.

The complaint against the city states that the council violated Oregon law by reconvening a meeting without public notice or announcement; the exemption under which the council met in executive session was incorrect; and the council misused an executive session to evaluate city goals.

On March 12, the city council adjourned from its regular meeting to hold an executive session to discuss the option of giving City Manager Chris Jordan the authority to recruit, hire and supervise an in-house attorney, who would supplement the city's existing contracted attorney, Tim Ramis. After the discussion, the council reconvened and voted on the issue.

The March 12 executive session was originally exempt from being open to the public under ORS 192.660(2)(a), which pertains to considering hiring a public employee or staff member. On advice from Ramis during a pre-meeting, it was changed to ORS 192.660(2)(i), which encompasses a staff member review and performance evaluation, with Ramis as the subject of the review.

Cummings contends an evaluation of Ramis was not conducted in the executive session and therefore the meeting was erroneously labeled and in violation of Oregon meeting law.

'Contrary to the stated purpose of the executive session, councilors John Kovash, Jody Carson, Mike Jones and Jenni Tan used the executive session to discuss numerous issues, options, requirements and financial aspects for creating a new city staff position of in-house city attorney,' the complaint states.

To rectify any possible meeting violations, the council chose to re-conduct the vote of hiring an in-house attorney during its regular May 14 meeting. By re-holding the discussion and the vote at a regular meeting, the council nullified the executive session actions and corrected any violations, according to Chad Jacobs, one of the city's attorneys with Beery, Elsner and Hammond.

However, according to the complaint, the city 'has failed to take appropriate action to correct the violations of Oregon's public meeting laws.'

In a response letter to Cummings' attorney, Jacobs wrote, "The city has no desire to waste taxpayer monies on this case; proof in point being, the council took the uncommon step to reinstate the decision on the hiring of an in-house counsel during its May 14, 2012 meeting."

"I have still never heard any legal opinion about whether or not from our own city counsel, our own city advisers. There's something very, very unusual about that," Cummings said.

The complaint asks that the city admit violations occurred, void the decision to hire an in-house attorney, stop all actions to recruit and hire the position or terminate the in-house attorney if hired before the case is resolved and to restart the process of recruiting and hire an in-house attorney 'by way of properly noticed and conducted open meetings, in compliance with all Oregon public meeting laws.'

Cummings said she's been frustrated with city and council practices and communications since 2009.

'It's not fun. There has been such a problem and it's progressively getting worse,' Cummings said.

The city is not taking this case lightly. Jacobs said Cummings may violate ethics laws if she continues to discuss the case during city council sessions as a city councilor.

"Should your clients proceed forward with any litigation on this matter, the city will not only vigoroulsy defend itself but will seek recovery of its attorney fees," Jacobs wrote.

The open meeting violation is just one of Cummings' concerns on the topic. She has also raised issue with meeting minutes regarding the topic that she thinks are erroneous, and she thinks the charter states the city council should govern city attorneys, rather than the city manager.

This lawsuit is unique in that a city councilor is suing the city while still in office. According to Ramis, he does not recall a similar case in the city's history.

'It's unusual to resolve disputes in this way,' Ramis said. 'It would appear to me to be a very unusual case.'

To avoid any real or perceived conflict of interest, Ramis has asked the city to bring in other legal counsel to address the case and to give advice.

According to Assistant City Manager Kirsten Wyatt, the city has narrowed down its list of finalists for the in-house attorney position and is continuing to move forward with the hiring process with the goal of having someone in place by mid-summer.

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