City attorney takes responsibility for breach of public meeting law 

By Morgan Rothborne, Ashland.news

Ashland Parks & Recreation Commission commissioners violated Oregon Public Meeting law by making the final decision for a new director during executive session, but Ashland Acting City Attorney Doug McGeary said he believed the mistake happened because of a lack of clarity in his instructions.

McGeary said he was out of town during the June 12 APRC business meeting when commissioners announced the selection of Rocky Houston for the position. Commission Chair Jim Bachman stated after the meeting the decision had been made during an executive session, as previously reported by Ashland.news.

Under Oregon Public Meeting Law, decisions cannot be made in an executive session, McGeary said. He stated commissioners misunderstood his instructions. When he learned of the error he informed Interim City Manager Sabrina Cotta the decision to hire Houston would need to be made in a noticed open public meeting with a motion and a vote. 

Susan Myers, executive director of the Oregon Government Ethics Commission, declined to comment on the particulars of this incident because it has already occurred and the commission must remain neutral. She confirmed that making a decision in executive session is against the law — adding that failure to follow executive session rules is a common complaint to the Ethics Commission. 

“Executive session laws are technical, it can be difficult for government bodies to follow, especially if they’re not well-trained,” she said. 

Even if APRC commissioners took a vote to hire the new director in a public meeting, the previous action could still result in consequences from the Ethics Commission, Myers said. Individuals have 30 days after the incident to file a written complaint. The public body has 21 days to respond and the individual can then take their complaint to the Ethics Commission, she said. 

In an email obtained by Ashland.news June 14, former Ashland City Councilor Russ Silbiger sent a written complaint to APRC. 

“Per State requirements, I am informing you of violations of Public Meeting Laws. …  By  State  Law ALL your final decisions, including deliberation and vote, need to be noticed properly, and done in public. The vote to hire, and the vote on the contract,” Silbiger wrote. 

Silbiger asked for direction to the agenda and minutes of the “claimed Executive Session,” where “these illegal decisions were made.” 

Deputy APRC Director Rachel Dials responded to Silbiger that the decision was made through a series of executive sessions, “under ORS 192.660 (2) (a) and in coordination with our Human Resources Department.” 

Dials stated under new, clarified instructions from the city attorney, the commissioners will make a motion and final decision at the next public meeting. Dials also provided links for the meeting notices but said, “Minutes are not taken in Executive Session.”

In a follow-up email also obtained by Ashland.news, Silbiger stated the links were broken and he could find no evidence of meeting notices on the city website. He pointed out APRC participated in a May 9 meeting for ethics training and requested information on who was present. Silbiger also stated minutes should be taken in executive session, referencing ORS 192.650, or minutes under Oregon public meeting law. 

“Congratulations; you have admitted to breaking Oregon Meeting and Records Law,” Silbiger wrote. 

For every viable complaint, the Ethics Commission goes through an investigation process. The Ethics Commission has a “penalty matrix” or set of contingencies and potential punishments, Myers said. 

The highest penalty is a $1,000 fine. Lower penalties include a letter of education or stipulated filed order — a signed settlement admitting fault. Contingencies include the potential for financial gain or if the body was operating under guidance such as a policy or legal counsel. 

Contacted by email Friday, Bachman stated as chair he “took the lead on this.” 

 “We commissioners worked with HR throughout the entire hiring process. … HR consults with Legal as a matter of normal operating practices. Occasionally, I worked directly with the Assistant City Attorney. We regularly received guidance regarding best legal practices for all stages of the process,” Bachman said. 

There was no plan to hold a public vote until after commissioners received further instruction from the city attorney, he said. 

“Working with the Assistant City Attorney, it was my understanding that a public vote was not necessary, that a simple announcement was sufficient. … I learned after the June 10 meeting of the instruction from the City Attorney to hold a public vote regarding the hire. We will do so at our Regular Business Meeting on July 10,” Bachman said. 

When asked how commissioners were unaware of the limitations of executive session for the hiring process, McGeary said hiring for this position happens infrequently enough that it could be difficult to remember the legal stipulations. Commissioners Jim Lewis, Rick Landt and Stefani Seffinger were serving at the time of Black’s hire in August 2014, according to meeting minutes on the city of Ashland’s website. 

The director search and hiring process was listed on the agendas of the June 23, July 23, and July 28 business meeting with interviews and deliberations in executive session. The decision to select Black was listed on the agenda of the August 18 meeting. 

The search for a new director in 2024 was announced at the March 6 APRC business meeting, as previously reported by Ashland.news. The interviews, deliberations and decision were held in executive session and the decision announced at the June 12 meeting. 

When asked about the differences between the process to hire Director Black in 2014 and that used to hire Director Houston in 2024, Bachman stated commissioners followed a new process using a new city resource — the HR department. 

“With the newly codified HR Department in place, and once we decided to have them conduct our search and hiring process, we relied on their guidance for complying with State and Federal employment law and for defining the City’s take on best human resource management practices,” he said. 

Email Ashland.news reporter Morgan Rothborne at morganr@ashland.news.

June 23: Spelling of Russ Silbiger’s name corrected.

Related stories:

New director hired, Ashland Parks & Recreation Commission announces (June 13, 2024)

Ashland Parks & Recreation to announce new director Wednesday, sources say (June 11, 2024)