Plaintiffs allege public meeting law violations occurred during water plant process

In response to a lawsuit filed on April 12 by a group of West Linn residents and a business owner, the city council held a special meeting April 24 and voted unanimously to hire attorney Chris Crean, of Beery Elsner & Hammond LLP., as its representation.

The lawsuit, which was filed against the mayor and three of the four city council members, alleges the council violated public meeting laws by conducting meetings and executive sessions behind the scenes to orchestrate the approval of two conditional use permits for the controversial Lake Oswego-Tigard water treatment plant and pipeline projects.

The projects were denied by the planning commission after much public testimony but approved by the city council earlier this year. Since then residents have filed an appeal of the projects to the state Land Use Board of Appeals.

As a former planning commissioner, Councilor Thomas Frank recused himself from the council’s decision and therefore was not named in the lawsuit.

Though admittedly in the early stages of investigating the lawsuit’s claims, Crean said the information he’s seen so far does not indicate any public meeting law violations.

“At this point, we don’t believe the complaint has any merit,” Crean said. “But we have to investigate.”

Andrew Stamp, who is representing the plaintiffs in the case, sees the case much differently. In particular, he points to the two-week period between city council meetings on Jan. 28 and Feb. 11.

“What you have here, if you look at the Jan. 28 video (of the city council meeting), and compare it to Feb. 11, you see a decision was made between then,” Stamp said. “And it certainly wasn’t public.”

During the Jan. 28 meeting, Mayor John Kovash and Councilor Jody Carson were leaning toward approval and Councilors Jenni Tan and Mike Jones were recommending denial of the permits. At that time, Kovash inadvertently introduced new evidence that he had ex parte communications with one or more neighborhood association presidents. The council quickly decided it needed to reopen the record for another two weeks before voting because of the misstep.

Over the course of the two weeks, Jones worked with city staff to add more conditions of approval to the projects that would sway his vote to approval. City Manager Chris Jordan said he had been in contact with both Jones and LOT officials in regard to the new conditions, and that other city staff, such as attorneys, dealt with drafting the new conditions.

By the morning of the city council meeting, councilors had received a copy of Jones’ proposed conditions of approval for their review prior to the meeting.

Legally, councilors can interact with city staff and with each other one on one as long as they are not trying to negotiate votes.

Still, Stamp took issue with Jones’ work to “shop” conditions of approval, calling it “unheard of” and said if it wasn’t a public meeting law violation, it was certainly a violation of land use laws. He also said Kovash should have recused himself after disclosing the ex-parte contact on Jan. 28.

“The unlawful ex parte by Kovash to even set up this boondoggle of a hearing, combined with Jones’ reaching out to see if they’ll bite on the conditions of approval — all this illegal activity creates the inference that there’s more illegal activity,” Stamp said. “We’re going to have to depose them, read their emails, and find out what happened.”

According to Jordan, a mayor or councilor only needs to recuse himself or herself if there is bias prior to a hearing, not after a hearing.

In the complaint, the plaintiffs call for the water treatment plant and pipeline approvals to be invalidated and seek coverage of attorney fees. The complaint also seeks the court to hold each councilor and the mayor personally liable for any costs or attorney fees awarded to the plaintiffs.

Residents have also recently filed an appeal of the projects to the state Land Use Board of Appeals, and Crean said that dealing with that has kept him from getting further into investigating this most recent lawsuit. But from what he has gathered, the city did not violate any public meetings laws.

“In the abstract, those things can be proven,” Crean said. “That’s why there’s a statute. But we’re confident that there is not a violation.”

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