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Ruling shines a light on lining up votes.

Byline: Matt Cooper The Register-Guard

The year was 1991, and the city was Springfield. The issue was a recent appointee to the Human Rights Commission, which was at the center of a deeply controversial debate over gay rights.

E-mails showed that four of the city's six councilors had agreed - in private, outside of a council meeting - to replace the appointee with someone they favored, which they did at a subsequent public council meeting.

Now-retired state Sen. Bill Morrisette was the city's mayor at the time, and he was appalled by the back-room deal. Remembering the incident recently, Morrisette described it as an extreme rarity.

"It was one in a million," the former mayor said.

But is it indeed the exception when public officials line up votes in private ahead of time?

There is statewide interest in a judge's ruling in January that two Lane County commissioners willfully violated Oregon's public meetings law by privately lining up a board majority to add commissioner-assistant positions to the budget in 2009.

While the county board mulls whether to appeal the decision against Commissioners Rob Handy and Pete Sorenson, public-sector attorneys are poring over the ruling and elected officials are seeking guidance on exactly what actions do - and don't - violate the state's public meetings law.

Is it naive to believe that private deliberations to line up votes of a majority are virtually nonexistent on public bodies? Where do officials draw the line for interaction with colleagues outside of a public meeting? And why is it that a majority of lawmakers in the Oregon House and Senate can meet in secret - legally - to line up votes ahead of a public floor vote?

In interviews with The Register- Guard, local elected officials described how they do their jobs in light of the state's 35-year-old public meetings law.

They also discussed actions they've observed - even participated in - that might be considered illegal in light of the Handy-Sorenson ruling.

Oregon Revised Statute 192.630(2) states that, save for a few exceptions, "a quorum of a governing body may not meet in private for the purpose of deciding on or deliberating toward a decision on any matter."

Local elected officials concur it would be wrong to discuss public business when a quorum or majority of the governing body is physically in the same place at the same time, in any setting outside of a public meeting.

If four of the eight Eugene councilors are talking city business and a fifth walks up, Council President Betty Taylor said, "somebody will say, 'Stop,' instantly. We've all been very aware of the necessity of not conducting business outside of a public meeting."

But is it a meeting if an elected official meets privately in sequence with other members in numbers that add up to a quorum? That's one of the questions raised in Coos County Circuit Judge Michael Gillespie's decision.

"The evidence did not show that (a majority of) commissioners were ever in the same room at the same time talking about this matter," the judge wrote. "That does not mean that the continuing multiple conversations were not a deliberation."

In an interview, one former local elected official said she occasionally discussed issues privately with a majority of members on her board - always individually - to see where they stood on issues.

"Those outside discussions are not in any way short-circuiting the deliberative public process," said the former official, who spoke only on condition her name not be published. "They're adding depth to it. The officials are educating themselves about the issues so they can share that with the public in a public meeting."

Paul Nicholson, a Eugene councilor from 1990 to 1995, said it was common for fewer than five of the council's eight members to meet privately to evalute issues and then privately recruit support for their position from other councilors in order to form a majority. Nicholson said he only objected in instances where councilors or city staff tried to guide the outcome of the private discussions by controlling what information was shared with individual councilors.

"I don't think it's realistic that all the analyzing and persuasion can happen within the confines of the (public) meeting," Nicholson said. "But a lot of stuff does go on that is intended to frustrate a transparent process, and when that happens, I think it should be stopped."

Eugene Councilor Mike Clark - picking his words carefully - said he recalled one instance that suggested other councilors "may have had a little too much outside discussion." But Clark said he doesn't have proof that the council has ever violated the law.

In his ruling, Gillespie said the commissioners' "continuing multiple conversations" amounted to deliberation outside a public meeting.

The judge noted that Handy, a proponent of hiring assistants, met in sequence with one commissioner, then another and then a third to determine whether a majority of three existed to approve the positions.

That suggests there could be a violation of the law in the time-honored practice that lawmakers call "lining up votes" - that is, checking privately with a majority of colleagues to count votes for and against an issue before moving into a public meeting.

Opinions diverge on the practice.

Taylor, of the Eugene City Council, said there's no harm in making sure ahead of time she has sufficient votes on an issue. In fact, she's been criticized for failing to count the votes ahead of time before making a motion that failed.

"I really don't see anything wrong with lining up votes," Taylor said - "with saying, 'I know I have enough votes, so I don't hesitate to bring this up.' "

But votes are not lined up in Springfield, Councilor Dave Ralston insisted. He said he wasn't aware of a single instance of it during his decade on the council. "Nobody's called me and asked how I was going to vote and then knowingly went to someone else and asked how they were going to vote," Ralston said.

When talking privately with other councilors, Ralston said he makes sure not to contact a majority on the six-member board. He remembered only one instance when he e-mailed the entire board to lobby for action; in the 2006 e-mail, Ralston called for a crackdown on illegal immigration.

In his ruling, Gillespie said e-mail is a possible means of deliberation that must comply with the law, too.

Does that mean elected officials could be found guilty of meeting illegally if a majority of them deliberate by e-mail? And does it matter if the e-mails are sent to the group, or passed from person to person?

In Eugene, councilors routinely e-mail the rest of council with their intent to make a motion at an upcoming meeting. That's done to avoid surprising colleagues, Clark said - but the communication ends there.

"We don't then engage in debate of the intended motion via e-mail," he added. "It's supposed to be done in a public meeting."

Sandra Bishop, a former elected commissioner with the Eugene Water & Electric Board, is an outspoken critic of Gillespie's ruling.

"This cannot stand," she said. "It's essentially sending a message that if you're an elected official you can no longer talk to another elected official outside of (an official meeting). You can't talk to one, because you don't know who that board member's going to talk to - if that board member talks to another, all of a sudden, board member A is on the hook (for an illegal meeting). It's crazy."

To avoid illegal quorums while educating commissioners on issues, the utility's practice has been to schedule meetings between staffers and no more than two commissioners of the five-member board, Bishop said.

Bishop, who served 10 years ending in 2006, said commissioners routinely discussed issues with one another outside of public meetings but said she didn't see evidence of them meeting in a majority. For her part, Bishop would use information to try to persuade others to take her side, she said.

"This is not the same as retaliatory vote-trading or those kind of shenanigans, which I never experienced on the EWEB board," Bishop said. "We were simply sharing information in an attempt to influence each other to make the best decision."

It's different for the state Legislature, which wrote the public meetings law that local public agencies must follow.

Salem lawmakers routinely meet privately in majorities to discuss issues and line up votes. But that's legal because they're bound by a different set of laws that distinguishes between majorities and quorums.

State lawmakers are bound by the Oregon Constitution's "open meetings" provisions. Those provisions are different from the "public meetings" law that state lawmakers themselves passed, and which applies at the local level, said Dexter Johnson, counsel to the Legislature.

The law that applies at the local level defines quorums as simple majorities.

But under the Constitution, quorums in the Legislature have a specific definition. In the House, a quorum is 40 of the 60 seats. If one party holds 40 of the 60 seats, then if all 40 of that party's lawmakers meet to deliberate, they must do so in public and comply with open meetings laws. In the Senate, the quorum is 20 of the 30 seats.

Historically it's very rare for either Democrats or the GOP to hold such overwhelming control. Instead, the margin is typically much slimmer. And both the majority and minority parties in both chambers, with rare exceptions, have long held their caucuses in private.

In 2001, Morrisette, then a state representative, argued to open up the caucuses of both parties, calling it "absolutely outrageous" that a majority party could meet in private and set the agenda for the Legislature.

Senate Democrats held open caucuses for a few years when they were in the minority. But after gaining the majority in 2005, they eventually closed them, saying they wanted privacy.

The closed-door situation in Salem irks Morrisette even today.

"It is at odds with the intent of the open meetings law," he said. "It is a sham."
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Title Annotation:Government Local; Just how unusual is the practice? Some local elected officials say it's rare, while others say it's not uncommon and is even defensible
Publication:The Register-Guard (Eugene, OR)
Date:Feb 21, 2011
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