Teri Cummings questions if in-house attorney decision was made appropriately
A city council meeting violation is being alleged by a West Linn resident and a city councilor.
Resident Karie Oakes and Councilor Teri Cummings allege the council violated Oregon public meeting laws when the council met in an executive session March 12.
Mayor John Kovash asked the city manager to add an executive session to the March 12 meeting to discuss creating a position for an assistant attorney, who would be hired and supervised by City Manager Chris Jordan. According to Councilors Jenni Tan and Mike Jones, this topic has been discussed during public meetings multiple times and was not a new issue.
The public cannot attend or listen to executive sessions, which are not filmed. The meetings are allowed in specific circumstances spelled out by state law.
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. Jordan said he thought the designation was not right and recommended changing it to ORS 192.660(2)(i), which encompasses a staff member review and performance evaluation.
On March 12, the city council adjourned its normal meeting, held the executive session and then reconvened to make a motion and approve giving Jordan the authority to recruit, hire and supervise an assistant attorney.
No city staff members were present at the executive session, which was attended by the entire city council. Disagreeing with the recommended motion, Cummings chose to not return to council chambers after the executive session and did not vote on the motion.
Because Cummings didn't return to the meeting and was the only voice against the decision, there was no discussion before the council voted.
In hindsight, Cummings thinks the executive session discussion was really about a change in policy - not an evaluation of Tim Ramis, city attorney - and that it should have occurred during a public meeting. The council had already conducted an evaluation of Ramis in December 2011.
'There were no concerns, no need for follow-up,' said Cummings of the evaluation. 'This was not about his performance.'
Cummings said members of the council have 'adamantly insisted this was an evaluation, and that's just not true. No policy change is a result of an evaluation.'
However, Tan thinks the intent of the session was to evaluate Ramis and his firm and consider what to do as a result of the evaluation.
'We did talk about how the firm has performed,' said Tan. 'I feel like there has been a great deal of discussion in public regarding this issue.'
Councilor Jones said, 'If there was anything inappropriate in that executive session, in my opinion, it was not intentional."
Cummings thinks the object of the discussion was to add a new staff position, not to conduct an evaluation.
'I'm afraid we've done something inappropriate,' she said.
Oakes agrees. She inquired about the executive session during public comments at the April 9 meeting and again in an April 23 letter to council members.
'You did not give the public the opportunity to hear your deliberations in this decision,' Oakes wrote in her letter to the council. 'You met behind closed doors possibly under the pretence that you were evaluating an employee. You considered information unknown to the public, reached a decision and came out and voted, without discussion, in a meeting not noticed to the public.'
She said Kovash adjourned the March 12 regular meeting without stating that the council may reconvene.
'While you may feel that this decision is not a violation of city charter, it remains to be heard if the public would agree,' challenged Oakes.
During the April 23 work session prior to its regular meeting, Cummings asked the council to hold an executive session to discuss the possible violation. The other councilors declined.
'It's totally unnecessary,' said Jones.
Cummings brought up the issue again at the regular meeting, asking to get legal counsel on the issue.
'I think we need to do an investigation,' she told the council.
Cummings also made a motion to suspend the search for the assistant attorney until the issue is resolved. There was no second.
Assistant City Manager Kirsten Wyatt said the council does not have the ultimate authority to suspend the search.
Ramis was asked to recommend a process to consider whether a violation did occur. He declined to explain what the process would look like and when it would be shared with the council.
"If there is an issue, we'll fix it," said Mayor John Kovash.
According to Jordan, if a private party pursues the issue, a lawsuit could be filed as a civil matter in circuit court, or an ethics complaint could be filed with the state. Because all members of the council participated in the executive session, all members would be held accountable if a violation is found.
When asked if she was going to pursue litigation, Cummings said, 'I will have to explore my avenues. Nobody likes to get into litigation. This could possibly wind up that way. I'd almost considered doing it myself, but I'd rather not.'
According to the posted assistant city attorney job description, the new position pays up to $8,471 a month with a management benefits package. The posting closes April 30.
According to Wyatt, funding for the new in-house position will come from the city's existing budget for attorney services. The city plans on reducing its contracted services with Ramis' firm to help offset the costs, but it will take at least a year before the city can see the true costs, said Wyatt.