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A Quorum Takes Three

Judge Gillespie’s decision was a big stretch

As the campaigns for the two Lane County commissioner positions come to a close, we’ve been hearing far more about the violations of Oregon’s Open Meetings Law by Commissioners Handy and Sorenson. These violations have become the chief platform for their opponents’ campaigns. May I offer a few observations based on my personal attendance at the trial of this case, my reading of Judge Gillespie’s decision and my personal research regarding Oregon’s Open Meetings Law. 

The Open Meetings Law is quite clear and concise regarding open meetings requirements and specific exemptions. Most specifically, ORS 192.630 (2) states “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 except as otherwise provided by ORS 192.610 to 192.690.” 

ORS 192.670 specifically includes meetings by “means of telephonic or other electronic means.” So it’s very clear, a quorum cannot meet either together “face to face” or through telephonic (like a conference call) or electronically (like an internet “chat room” or Skype conference) to discuss business (except under the specific exceptions of executive session.)

An op-ed in the March 25 Commentary section of The Register-Guard states that Handy and Sorenson did, in fact, meet together in private “book club” meetings which excluded the public and other elected commissioners and, thereby, violated the Open Meetings Law. Such is simply not the case: First, any meeting between Handy and Sorenson would have not constituted a quorum and, therefore would not have violated the statute. Furthermore, in his decision, Judge Gillespie writes, “the evidence did not show that any three commissioners were ever in the same room at the same time talking about this matter.” Additionally, Gillespie at no time in his opinion claims there occurred a conference call or any electronic meeting involving any three commissioners discussing the issue privately. He makes absolutely no claim that Commissioners Handy, Sorenson, Fleenor, Stewart or Dwyer violated the provisions of Oregon’s Open Meetings Laws as specifically delineated in ORS 192.630 and supported by established case law. 

I would suggest that, had Judge Gillespie acted as a strict constructionist Jurist, he would have found the commissioners “not guilty” of Open Meetings Law violations. However, Judge Gillespie, instead, engaged in what can I would consider judicial activism. He writes that “all involved knew that a quorum of the board was working toward a final decision outside the public meeting context.” He cites, especially, a series of email communications between the commissioners which did propose an orchestration of the meeting wherein the decision to adopt a supplementary budget to include administrative assistants was made. 

He concludes that this one-on-one “serial” communication constituted violation of the Open Meetings Law. He found those actions were motivated by an intent to circumvent ORS 192.630 and, therefore, those serial communications constituted violation of that Statute. His decision is the first in Oregon to state that such orchestration discussions need not involve the specific quorum violations of ORS 192.630 to constitute the violation of the statute. 

Anyone who has served on a school board, a city council or any governing body knows that virtually every public action of such a body is (to varying degrees) orchestrated. Factions on that board, or in that legislative body, have their “ducks in a row.” They have usually predetermined who will make a motion, who will second it, and who will speak in support of it; opponents of a proposal, likewise, orchestrate their opposition. State legislatures plan their orchestration in a party caucus, and the Legislature has gone so far as to exempt their own party caucuses from Public Meetings Law (majority party caucuses usually constitute a quorum of the legislative body). Lesser governmental bodies employ face-to-face, telephone and email communications (carefully avoiding having a quorum being simultaneously involved). Public meetings often look orchestrated because — well, guess what, they are. 

Politicians have been lobbying each other for support, "counting votes" for and against upcoming legislation, and mapping strategies for upcoming sessions since the days of the Roman Forum. Judge Gillespie's trail-blazing expansion of Oregon's Open Meeting Law, should it survive eventual appellate review, would establish a precedent which would fundamentally change that process in Oregon.