Special Note: Role of the Attorney General

At the outset of this discussion of the Public Meetings Law, we note an important distinction between the Public Meetings Law and the Public Records Law. The Attorney General and district attorneys have a special statutory role to enforce the Public Records Law’s requirements. In contrast, neither the Attorney General nor district attorneys have such a role under the Public Meetings Law.

The Attorney General’s only role under the Public Meetings Law is to provide legal advice to the state agencies, boards, and commissions that are subject to the law, and to the Oregon Government Ethics Commission in its role under ORS 244.260 ». Most district attorneys do not have a role in interpreting the Public Meetings Law. The exception is where a district attorney also serves as legal counsel to a county governing body. If a citizen wishes to compel compliance with the meetings law, or believes that a governing body has violated the law, the citizen may file a private civil lawsuit against the governing body. A citizen who believes that a governing body has violated the provisions permitting an executive session may file a complaint with the Oregon Government Ethics Commission. Neither the Attorney General nor any district attorney may assist a citizen in such a suit or complaint.

Nevertheless, as a public service, the Attorney General’s office frequently responds to questions from citizens or the news media about the Public Meetings Law. These responses do not constitute formal or informal legal opinions of the Attorney General. This office may issue legal opinions or give legal advice only to state agencies and officers, including members of the legislature. We can point out what the law says, and inform interested persons of the construction of the law adopted in the many published opinions we have written on the subject. We are committed to providing this informational assistance to promote better public understanding of the Public Meetings Law.

A.  Policy of the Public Meetings Law

“The Oregon form of government requires an informed public aware of the deliberations and decisions of governing bodies and the information upon which such decisions were made. It is the intent of [the Public Meetings Law] that decisions of governing bodies be arrived at openly.”[568]

This policy statement is given effect by the law’s substantive provisions, which, among other things, provide that a governing body’s meetings and deliberations are open to the public,[569] that the public has notice of the time and place of these meetings,[570] and that the meetings are accessible to persons wishing to attend.[571]

All substantive provisions of the Public Meetings Law should be read in light of this policy statement. When applying the law to particular circumstances, that policy ordinarily will require an interpretation favoring openness.[572]

We have acknowledged that strict compliance with the substantive requirements of the Public Meetings Law frequently may “sacrifice[] speed and spontaneity for more process and formality.”[573]Nonetheless, we believe that the law’s requirements generally will not interfere with a public body’s administration.

B.   Bodies Subject to the Law

1.   Governing Bodies of Public Bodies

The Public Meetings Law applies to any governing body of a public body. A “public body” is the state, any regional council, county, city or district, or any municipal or public corporation; or any agency of those entities, such as a board, department, commission, council, bureau, committee, subcommittee, or advisory group.[574] A key indicator of whether an entity is a public body is whether it was created by or pursuant to the state constitution, a statute, administrative rule, order, intergovernmental agreement, bylaw, or other official act.[575] However, a single official, such as the governor, is not a public body for purposes of meetings law.[576]

If two or more members of any public body have “the authority to make decisions for or recommendations to a public body on policy or administration,” they are a “governing body.”[577] For example, a five-member city council and a seven-member licensing board are both governing bodies. In addition, a three-member committee of a seven-member board is itself a “governing body” if it is authorized to make decisions for or to advise the full board or another public body. Conversely, a department headed by an individual public officer, such as the office of the State Treasurer, is not a “governing body.”

a.   Authority to Make Decisions for a Public Body

A body that has authority to make decisions for a public body on “policy or administration” is a governing body.[578] A body meets this standard if its decision-making authority is equivalent to the authority to exercise governmental power, that is, is integral to the movement of the government in an area where it has the power and authority to act. Thus, a three-member subcommittee that has authority only to gather information for the full committee is not a governing body.[579] Even though the subcommittee decides when to meet and determines what procedures it will use to gather and report information, it is not vested with the authority to decide the direction in which the government will move on an issue of policy or administration. In contrast, if the subcommittee possesses the authority to make policy or hiring decisions for a public body, then it is a governing body.

b.   Authority to Make Recommendations to a Public Body

A body that has authority to make recommendations to a public body on policy or administration is a governing body. [580] However, because “public body” does not include an individual official, an advisory body that makes recommendations to an individual official, and does not exercise other governmental powers, is not subject to Public Meetings Law.

For example, an advisory committee appointed by an individual official, such as the governor,[581] individual head of a department,[582] or a school principal, is not ordinarily a governing body if it reports only to the individual appointing official.[583] If, however, that single official lacks authority to act on the advisory group’s recommendations, and must pass those recommendations on unchanged to a public body, the Public Meetings Law applies to the advisory group’s meetings.[584]

As long as the advisory body is itself a governing body of a public body, the fact that its members may all be private citizens is irrelevant. Thus, the scope of the Public Meetings Law extends even to private citizens, employees, and others without any decision-making authority, when they serve on a group that is authorized to furnish advice to a public body. For example, a school board advisory committee consisting of private citizens who meet with and make recommendations to the board on school matters is a governing body.

2.   Private Bodies

Private bodies are not covered by the Public Meetings Law.[585] Whether a private body becomes subject to the meetings law by virtue of assuming public functions is an unsettled area of the law. A private body does not become subject to the meetings law merely because it receives public funds, contracts with governmental bodies, or performs public services.

State agencies periodically contract with privately established bodies, such as nonprofit corporations, to carry out public purposes. For example, the Oregon Health Authority and counties are encouraged by statute to contract with private bodies to furnish community mental health services.[586] Typically, the private body’s entire budget consists of public money. Other groups, such as the Oregon Parks Foundation, may have public officers on their boards, receive public funds, and carry out public purposes to such an extent that their records are subject to state audit.[587] Such bodies are not subject to the Public Meetings Law.

As discussed in Part I of this manual, the Oregon Supreme Court has developed a test for determining whether an entity is the “functional equivalent” of a public body for purposes of the Public Records Law.[588] Although the definition of “public body” in the Public Meetings Law is similar to the definition in the Public Records Law, they are sufficiently different that the applicability of that test to the Public Meetings Law is questionable. Nevertheless, the court’s test may have implications for the meetings of private entities that contract with, or perform services at the request of, public bodies if the private entity has been given authority to make decisions for or recommendations to a public body. A public body or private entity in this situation may wish to consult its legal counsel concerning possible application of the Public Meetings Law to the private entity and the relevance of the six factors identified by the Supreme Court.

One example where a private body’s assumption of public functions results in the body being subject to the Public Meetings Law is county alcohol and drug prevention and treatment programs. County governing bodies can designate already existing bodies to act as the local planning committee in identifying needs and establishing priorities for prevention and treatment services.[589] A private body performing advisory functions for a governing body would be subject to the Public Meetings Law.

In addition, the legislature may expressly subject a private entity to Public Meetings Law. For example, the governing body of a recipient of grant funds from the Oregon prekindergarten program must comply with the law.[590]

3.   Federal and Multi-Jurisdictional Bodies

Federal agencies are not subject to the Oregon Public Meetings Law. By its terms, the law covers only Oregon state and local governing bodies.

Multi-jurisdictional commissions, whose members are appointed by several different governments (such as federal agencies, the governors of Oregon and Washington, and county governing bodies) and whose Oregon members do not constitute a majority, are not subject to the Public Meetings Law. However, if such a multi-jurisdictional commission has committees consisting of solely, or a majority of, Oregon appointees that are authorized to make decisions for the commission, or that are authorized to deliberate and make recommendations to the state or any other public body within the state, the meetings of those committees may be subject to the Public Meetings Law. In some cases, the federal enabling legislation may provide that the multi-jurisdictional commission and its committees must comply with state public records and meetings laws.

C.  Meetings and Deliberations Subject to the Law

1.   Public Meetings

All meetings of a governing body must be open to the public, unless Public Meetings Law permits the body to meet in executive session or otherwise provides an exception.[591] A “meeting” is the convening of any governing body “for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter.”[592]

In addition, 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, unless an exception applies.[593]

While at first blush these restrictions may seem complementary, in fact the prohibition on a quorum meeting in private “reach[es] some decision-making of a governing body that does not occur in a meeting.”[594] That is, “Public Meetings Law applies not only to formal ‘meetings’ of governing bodies * * * but also to circumstances in which a quorum * * * ‘meets’ to deliberate toward or make a decision outside of the context of a ‘meeting.’”[595]

a.   Quorum Requirements

Every governing body has a quorum.[596] That is, “there is some minimum number of members that must participate in order for the [governing] body to be competent to transact business.”[597]

While “quorum” is not defined in the Public Meetings Law, the default quorum appears to be a majority of the governing body, unless otherwise expressly provided by law.[598] In addition, special statutes often define “quorum” for state governing bodies. Local city and county governing bodies may have “quorum” defined by charter, bylaws, or rules of order.

A governing body may only make a decision at a meeting at which a quorum is present, unless a vote by proxy or by mail is specifically authorized under Oregon law. See Appendix K for further discussion of quorum.

A gathering of less than a quorum of a governing body is not a “meeting.”[599]  However, members of a governing body should not gather as a group or groups composed of less than a quorum for the purpose of conducting business outside the Public Meetings Law. Such a gathering creates the appearance of impropriety, and runs contrary to the policy of the Public Meetings Law, which supports keeping the public informed of the deliberations of governing bodies. In addition, such a gathering creates a risk of violating ORS 192.630(2) through serial communications, as discussed below.

If each member of a governing body is charged to form recommendations individually rather than deliberatively through a quorum requirement, the Public Meetings Law does not apply. Because this is unquestionably a difficult area of interpretation, governing bodies are cautioned not to misuse the committee appointment process to subvert the policy of the law.

Ordinarily, staff meetings are not covered by the Public Meetings Law because no quorum is required. A staff meeting called by a single official is not covered by the Public Meetings Law because the staff do not make decisions for or recommendations to a “public body.” If, however, a quorum of a governing body, such as a three-member commission, meets with the body’s staff to deliberate on matters of “policy or administration,” or to clarify collegially a decision for staff, the meeting is within the scope of the law; this includes “receiv[ing] information from staff on topics related to particular substantive or administrative matters that a quorum of the governing body will or may be called upon to decide.”[600]

Many governing bodies have authority to conduct some official business through means other than decision-making by quorum and thus may have latitude to conduct business outside of the Public Meetings Law’s requirements by not convening a quorum of the governing body. For example, the Public Utility Commission has authority to delegate some duties to a single commissioner or to staff.[601] Therefore, “a process of decision-making on day-to-day matters of agency administration legally may be conducted in private by a single commissioner or agency staffer to whom the commission properly has delegated administrative responsibility.”[602] However, even in these situations, the governing body should consult its legal counsel before a quorum of the governing body meets to discuss the delegated subject matter.

b.   Subject of Meetings and Social Gatherings

The Public Meetings Law applies to all meetings of a quorum of a governing body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter.[603] The law also applies to a quorum’s private decision-making or deliberations on any matter on which a vote of a governing body is required.[604]

Even if a meeting is for the sole purpose of gathering information to serve as the basis for a subsequent decision or recommendation by the governing body, the meetings law will apply.[605] This requirement serves the legislative policy that an informed public must be aware not only of the decisions of government, but also of “the information upon which such decisions were made.”[606] Hence, except for on-site inspections, which are discussed below, information gathering and investigative activities of a governing body are subject to the law. If the requirements of the law would unduly hamper an investigation, the body could direct members to make individual reports to the governing body as discussed above in the section on quorums.

If a quorum of a governing body gathers to discuss matters outside its jurisdiction, it is not “meeting” within the purview of the Public Meetings Law.[607] In making this determination, the focus typically will be on the authority granted to the particular governing body and any written policies or directives governing that authority.

Purely social gatherings of the members of a governing body are not covered by the law. For example, the Court of Appeals held that social gatherings of a school board, at which members sometimes discussed “what’s going on at the schools,” did not constitute a violation.[608] The purpose of the meeting triggers the requirements of the law. However, a purpose to deliberate on any matter of official policy or administration may arise during a social gathering and lead to a violation. Members constituting a quorum must avoid any discussions of official business during such a gathering.[609] And they should be aware that some citizens may perceive social gatherings as merely a subterfuge for avoiding the Public Meetings Law.

Governing bodies sometimes want to have retreats or goal-setting sessions. These types of meetings are nearly always subject to the Public Meetings Law because the governing body is deliberating toward a decision on official business or gathering information for making a decision. For example, members of a commission may wish to have an informal, long-range planning session to help guide (in general terms) the future priorities of the commission. Because the discussion at such a session is very likely to lay the foundation for subsequent decisions, whether a decision on which general issues to pursue over the next year or a decision on how to approach a particular issue, it would be subject to the meetings law. Even an informal “get together” between a state commission and state legislators or the governor would be subject to all of the requirements of the meetings law (notice, minutes, etc.), if a quorum of the commission discusses matters that are within the authority granted to that body. It does not matter that the discussion is “informal” or that no decisions are made.

Whether a governing body’s training sessions are subject to the Public Meetings Law will depend on whether any substantive issues are discussed. For example, a governing body may receive training on improving personal interaction among its members.  If that training is carefully structured to avoid any discussion of official business, and no such discussion occurs, the training would not be subject to the meetings law. This is a very sensitive area, however, and public bodies should contact their legal counsel for advice.

c.   Serial Communications

A governing body risks violating meetings law through a series of private communications, even if a quorum isn’t involved in any single communication. For example, the Court of Appeals held that a county administrator’s e-mails and phone calls with various board members deliberating towards the resolution of a public records request could be a violation, even though no single e-mail or phone call involved a quorum.[610] The court explained that “the determinative factors are whether a sufficient number of officials are involved, what they discuss, and the purpose for which they discuss it—not the time, place, or manner of their communications.”[611]

While the Supreme Court reversed the Court of Appeals decision,[612] it did not resolve the issue of whether serial communications can violate the law.[613] As noted above, we recommend that members of a governing body should not meet in private to discuss business, or exchange private communications about business, even if those involved constitute less than a quorum.

d.   Electronic Communications

The Public Meetings Law expressly recognizes that meetings may be conducted by telephonic conference calls or “other electronic communication.”[614] Such meetings are subject to the Public Meetings Law.

Notice and opportunity for public access must be provided when meetings are conducted by electronic means. For nonexecutive session meetings held by telephone or other electronic means of communication, the public must be provided at least one place where its members may listen to the meeting by speakers or other devices.[615] In the alternative, the public may be provided with the access code or other means to attend the meeting using electronic means. If electronic access is provided, the technology used must be sufficient to accommodate all attendees, and any costs associated with providing access may not be passed on to the public.

As discussed in more detail below, special accommodations may be necessary to ensure accessibility for persons with disabilities. And even if the meeting occurs in executive session, the media must be provided access, unless the executive sessions are held under ORS 192.660(2)(d) (to deliberate with persons designated by the governing body to carry on labor negotiations) or ORS 332.061 » (hearings concerning the expulsion of a minor student from a public elementary or secondary school, or pertaining to examination of a student’s confidential medical records).

A state board or commission is not required to compensate or reimburse a member for expenses when that member attends a meeting electronically.[616] However, if a member is not also a member of the Legislative Assembly, the state board or commission, at its discretion, may choose to provide compensation or reimbursement.[617]

2.   Statutorily Exempt Public Meetings

A “meeting”  does not include an on-site inspection of any project or program or a gathering of any national, regional, or state association to which the public body or its members belong.[618]

In addition, the following meetings are exempt from the requirements of the Public Meetings Law:

• meetings of the state lawyers assistance committee or personal and practice management assistance committees operating under ORS 9.568 »;
• meetings of medical peer review committees under ORS 441.055 »;
• meetings of county multidisciplinary child abuse teams that review child abuse cases under ORS 418.747 »;
• meetings of child fatality review teams that review child fatality cases under ORS 418.785 »;
• any judicial proceedings;[619]
• deliberations of the Board of Parole or the Psychiatric Security Review Board;
• deliberations of state agencies in contested case hearings under ORS chapter 183 », or review by the Workers’ Compensation Board or Employment Appeals Board of similar hearings on contested cases;
• meetings of the Oregon Health and Science University Board of Directors or subcommittee regarding:
• candidates for president of the university, or
• sensitive business, financial or commercial matters of the university not customarily provided to competitors related to financings, mergers, acquisitions or joint ventures or related to the sale or other disposition of, or substantial change in use of, significant real or personal property, or related to health system strategies;
• meetings of Oregon Health and Science University faculty or staff committees;
• mediation conducted pursuant to the agricultural mediation service program; and
• meetings of the Energy Facility Siting Council to review and approve security programs.[620]

The exemption for “deliberations” of certain agencies does not remove the entire meeting from the law’s coverage. For instance, when the Board of Parole gathers information in order to deliberate and then deliberates at the same meeting, the information-gathering portion of the meeting is subject to the law’s requirements.[621]

The exemption covering “deliberations” of state agencies in contested case hearings under the Administrative Procedures Act encompasses deliberations following the information-gathering portion of the contested case hearing and prior to a decision in the case. It does not encompass deliberations by a governing body about whether to initiate a contested case. Although state board or commission “deliberations” in contested case hearings are exempt from the meetings law, any information gathering by the governing body and the final decision of the governing body must be conducted in compliance with the meetings law, unless otherwise exempted by statute.

Note that a state agency contested case proceeding conducted by a single hearings officer is not subject to the Public Meetings Law, because a single hearings officer is not a “governing body.” The right of the public to attend such contested case proceedings depends on provisions of law outside the Public Meetings Law.

Local government officials should note, however, that the Public Meetings Law exemption provided in ORS 192.690(1) for state agency contested case hearings does not apply to hearings conducted by local governing bodies, even though those local government hearings may be remarkably similar to state agency contested case proceedings.[622]

D.  Requirements of the Law

1.   Notice

The Public Meetings Law requires that public notice be given of the time and place of meetings.[623] The public notice requirements apply to any “meeting” of a governing body subject to the law, including committees, subcommittees, and advisory groups. A governing body’s public notice must also be reasonably calculated to provide actual notice to the persons and the news media that have stated in writing that they wish to be notified of every meeting.[624]

If a meeting will consist only of an executive session, notice must be given to the members of the governing body, to the general public, and to news media that have requested notice.[625] The notice also must state the specific legal provision authorizing the executive session.[626]

Notices for meetings that will include both an executive session and a nonexecutive session should give notice of both and state the statutory authority for the executive session.

Special meetings require at least 24 hours’ notice to the general public, any news media who have requested notice, and the members of the governing body.[627] An “emergency meeting” is a type of special meeting called on less than 24 hours’ notice. The governing body must be able to point to some reason why the meeting could not be delayed to allow at least 24 hours’ notice. An “actual emergency” must exist, and the minutes of the meeting must describe the emergency justifying less than 24 hours’ notice.[628] “Such notice as is appropriate to the circumstances” must be given for emergency meetings.[629] The governing body must attempt to contact the media and other interested persons to inform them of the meeting. Generally, such contacts would be by telephone or e-mail.

The Oregon Court of Appeals has indicated that it will scrutinize closely any claim of an actual emergency. Any claimed actual emergency must relate to the matter to be discussed at the emergency meeting. An actual emergency on one matter does not “justify a public body’s emergency treatment of all business coming before it at approximately the same time.”[630] Nor do the work schedules of board members provide justification for an emergency meeting.[631]

a.   Contents of Notice

In addition to providing the date, time, and place of the meeting, the notice should provide the name and telephone number (including TTY number if the public body has such equipment in service) of a person at the public body to contact to request an interpreter for the hearing impaired or for other communication aids.[632] As an alternative, governing bodies that know their audience is likely to require a sign language interpreter or other communication aids and services should simply make those services available and so state in their notice.

The notice must also “include a list of the principal subjects anticipated to be considered at the meeting.”[633] This list should be specific enough to permit members of the public to recognize the matters in which they are interested. For example, “public works contract” probably is not a sufficient description when the governing body intends to let a contract for demolition of a landmark building.

A governing body may take up additional subjects arising too late to be mentioned in the notice.[634] But, if an executive session is being held, the discussion must be limited to the topic(s) listed in the statutory provision(s) identified as authority for the executive session.[635] Of course, if the subject matter is governed by the rulemaking requirements of the Administrative Procedures Act (ORS chapter 183), the notice requirements of that statute must be met.

b.   Methods of Notice

The goal of notice for any meeting is two-fold: to provide general notice to the public at large and to provide actual notice to specifically interested persons. The following are suggested methods of meeting the notice requirements:

Oregon Transparency Website—State agencies must post notices to the Oregon transparency website, maintained at http://www.oregon.gov/transparency/Pages/Index.aspx ».[636] Local or special government bodies can also post notices to this site.[637]

Press Releases―Press releases should be given to the appropriate publications and news services. The following list of publications and news services is commonly used.

• Wire Service―Associated Press. Notices can be directed to this service at its main offices at the Press Room, State Capitol Bldg., Salem, Oregon 97301 (Phone (503) 363-5358; Fax (503) 363-9502) or 121 S.W. Salmon Street, Suite 1450, Portland, Oregon 97204-2924 (Phone (503) 228-2169; Fax (503) 228-5514). In other areas of the state, notices directed to subscribing news media should reach the service.
• Local Media Representatives―If a meeting involves matters that affect a particular geographic area, press releases should be sent to the local media.
• Trade Papers, Special Interest Publications and Professional Journals―Agencies regulating matters affecting trades, occupations, professions, and special interest groups that have regularly scheduled publications directed to affected persons should provide these publications with notices of the agencies’ public meetings.

Paid display advertising is not required. A governing body is not required to ensure that the release is published. News media requesting notice of meetings must be given notice.

Mailing Lists―Agencies maintaining mailing lists of licensees or other persons or groups for notice purposes, either as a regular practice or under the requirements of ORS 183.335(8) », should mail, e-mail, or fax notices of regular meetings to persons on those lists.

Interested Persons―If a governing body is aware of persons having a special interest in a particular action, those persons generally should be notified, unless doing so would be unduly burdensome or expensive.

Notice Boards―Some smaller communities have a designated area or bulletin board for posting notices. Governing bodies may want to post notices of meetings in such areas.

2.   Space and Location

For any meeting, the governing body should consider the probable public attendance and should meet where there is sufficient room for that expected attendance. If the regular meeting room is adequate for the usual attendance, a governing body probably is not required to seek larger quarters for a meeting that unexpectedly attracts an overflow crowd; but the governing body may take reasonable steps to accommodate the unexpected attendance.

a.   Geographic Location

Meetings of the governing body of a public body must be held within the geographic boundaries of the area over which the public body has jurisdiction; at the public body’s administrative headquarters; or at “the other nearest practical location.”[638] State, county, or city entities can also hold the meeting within Indian country of a federally recognized Oregon Indian Tribe that is within Oregon’s geographic boundaries.[639]

A joint meeting of two or more governing bodies must be held within the geographic boundaries of the area over which one of the public bodies has jurisdiction, or at the nearest practical location.[640] If the meeting is with the elected officials of one or more federally recognized Oregon Indian tribes, the meeting can also be held within the tribe’s geographic boundaries.[641]

There are exceptions to these requirements for meetings held “in the event of an actual emergency necessitating immediate action,”[642] and for training sessions that do not involve deliberations towards a decision.[643]

b.   Nondiscriminatory Site

A governing body may not hold a meeting at any place where discrimination on the basis of race, color, creed, sex, sexual orientation, national origin, age, or disability is practiced.[644] However, the fact that organizations with restricted membership hold meetings at the place does not restrict its use by a public body if use of the place by a restricted membership organization is not the primary purpose of the place or its predominant use.[645]

3.   Accessibility to Persons with Disabilities

Meetings must be held in places accessible to individuals with disabilities, and a governing body must make a good faith effort to have an interpreter for persons who are deaf or hard of hearing (upon request by such a person).[646] A “good faith effort” includes contacting any state or local agency that maintains a list of qualified interpreters,[647] and arranging for the referral of one or more such persons to provide interpreter services.[648] An individual’s request for an interpreter must be made with at least 48 hours’ notice, and include the requester’s name, sign language preference, and any other relevant information the governing body may request.[649]

The sole remedy under state law for violating the interpreter requirement is found in Public Meetings Law.[650] However, the Americans with Disabilities Act (ADA) may impose requirements and remedies beyond state law. The ADA requires public bodies to ensure that their communications with persons with disabilities are as effective as communications with others.[651] For deaf or hard-of-hearing individuals who do not use sign language, other means of communication, such as assistive listening devices, may be necessary. If the meeting is held by electronic means, the needs of persons with vision or hearing impairments may need to be considered. Also, if written materials will be used during the public meeting, the governing body must make the material available, when requested by individuals with vision impairments, in a form usable to them, such as large print, Braille, or audiotapes. A public body cannot charge a person with a disability to cover the cost of providing such additional aids and services.

4.   Public Attendance

The right of public attendance guaranteed by the Public Meetings Law does not include the right to participate by public testimony or comment.

Other statutes, rules, charters, ordinances, and bylaws outside the Public Meetings Law may require governing bodies to hear public testimony or comment on certain matters.[652] But in the absence of such a requirement, a governing body may conduct a meeting without any public participation. Governing bodies voluntarily may allow limited public participation at their meetings.

In addition, some permissions to meet in executive session apply only if the governing body has offered an opportunity for public comment: the authority to consider in private the employment of a public officer exists only if the public has had the opportunity to comment on that officer’s employment;[653] and the authority to consider in private the employment of a chief executive officer exists only if the public has had the opportunity to comment on the hiring standards, criteria, and policy directives that were adopted in open meetings.[654]

5.   Control of Meetings

The presiding officer has inherent authority to keep order and to impose any reasonable restrictions necessary for the efficient and orderly conduct of a meeting. If public participation is to be a part of the meeting, the presiding officer may regulate the order and length of appearances and limit appearances to presentations of relevant points. Any person who fails to comply with reasonable rules of conduct or who causes a disturbance may be asked or required to leave, and upon failure to do so becomes a trespasser.[655] The law’s requirement that “all persons be permitted to attend any meeting” does not prevent governing bodies from maintaining order at meetings.[656]

The authority to keep order extends to control over equipment such as cameras, tape recorders, and microphones, but only to the extent of reasonable regulation. We have concluded that members of the public cannot be prohibited from unobtrusively recording the proceedings of a public meeting.[657] We believe the logic supporting the public’s right to make an audio record of a meeting also extends to video recording, subject to reasonable regulation to the extent necessary to prevent disruption of the meeting. Some concern has been expressed that criminal law might prohibit the recording of public meetings. But the criminal law prohibition on electronically recording conversations without the consent of participants expressly does not apply to the unconcealed recording of “[p]ublic or semipublic meetings such as hearings before governmental or quasi-governmental bodies.”[658]

It is questionable whether a governing body may exclude a member of the public because the person engaged in misconduct at a previous public meeting. It may be possible to obtain an injunction against a person who habitually has been disruptive, but an arrest and prosecution for trespass or disorderly conduct on the occasion of the subsequent disruption would be a simpler and probably more effective procedure. In case of an announced threat to disrupt a controversial meeting, it would be permissible to exclude the public from the meeting room if the public were allowed to view and hear the meeting by television in another room.

Smoking at Meetings – Smoking is prohibited in any public place.[659] Because “public place” means “an enclosed area open to the public” or a “place of employment,” this prohibition generally applies to public meetings and executive sessions.[660] The prohibition extends to smoking, vaping, or aerosolizing any nicotine or cannabinoid product,[661] or to even carrying a lit cigar, cigarette, pipe, or other smoking instrument.[662] And smoking is prohibited not just inside the enclosed area, but also within 10 feet of any entrances, exits, windows that open, or ventilation intakes that serve an enclosed area.[663]

The person presiding at a meeting will avoid embarrassment to members of the public and the governing body by reminding them of the no-smoking rule at the beginning of the meeting.

6.   Voting

All official actions by governing bodies must be taken by public vote.[664] Results of all votes must be recorded.[665] In addition, the vote of each member must be recorded, although individual votes for governing bodies with more than 25 members do not need to be recorded unless a member makes a request.[666] While written ballots are not prohibited, the ballot must identify the member voting and the vote must be announced. Secret ballots are prohibited.[667] This prohibition supersedes and nullifies any local government charter that authorizes a secret ballot.[668]

A governing body’s failure to record a vote is not, in and of itself, grounds for reversing a decision.[669] Without a showing that the failure to record a vote was related to a manipulation of the vote, a court will presume that public officials lawfully performed their duties.[670]

7.   Minutes and Recordkeeping

A governing body must provide for written minutes of its meetings and executive sessions, or sound, video, or digital recording.[671] The written minutes or recording must include at least the following information:

o   members present;

o   motions, proposals, resolutions, orders, ordinances and measures proposed and their disposition;

o   results of all votes; and, the vote of each member by name, except for public bodies consisting of more than 25 members unless recording by name is requested by a member of that body;

o   the substance of any discussion on any matter; and

o   a reference to any document discussed at the meeting, unless even a reference to the document is exempt under Public Records Law.[672]

Written minutes need not be a verbatim transcript, and a sound, video, or digital recording is not required to contain a full recording of the meeting, except as otherwise provided by law.[673] However, the minutes or recording must contain the above information and must give “a true reflection of the matters discussed at the meeting and the views of the participants.”[674] See Appendix J-9 for sample minutes.

a.   Public Availability of Minutes

Any minutes or recording of a public meeting that does not take place in executive session must be made available to the public “within a reasonable time after the meeting.”[675] Draft written minutes cannot be withheld from the public merely because they have not yet been approved; however, the governing body can identify the minutes as being in draft form when producing them to the requester. Any completed minutes or sound, video, or digital recordings are public records subject to disclosure under the Public Records Law.[676]

We assume that a governing body generally should be able to make a sound, video, or digital recording of a meeting available to the public within a few days following the meeting. However, we are told that the preparation of written minutes takes up to three weeks in the usual course of business: small bodies may not have the staff to prepare the minutes in just a few days, and larger bodies that do have substantial staff typically meet more often or for longer amounts of time. Three weeks arguably is within the “reasonable time” allowed by the statute, but a reviewing court may reach a different conclusion.

The minutes or recording of an executive session may be withheld from public disclosure if disclosing the information would be “inconsistent with the purpose” of the executive session.[677] Depending on the circumstances, this may mean that only a portion of the minutes or recording is exempt, and that the remainder must be produced.[678] Even though the news media has the right to attend executive sessions, they have no statutory right of access to any minutes or records that are exempt from disclosure.

Minutes and records available to the public must be made available to persons with disabilities in a form usable by them, such as large print, Braille, or audiotape. However, the public body is entitled to consider the resources available for use in the funding and operation of the program from which the records are sought in responding to a request for alternative format, and may conclude that compliance with the request would result in a fundamental alteration of the nature of the program or in undue financial or administrative burdens.[679] Public bodies should consult with legal counsel if they are uncertain of their obligation to honor the requester’s choice.

A public body may not charge a person with a disability to cover the costs of providing records in an alternative print form, although the public body may charge a fee for all other “actual costs” that may be recovered under the Public Records Law just as it would for any other requester.

b.   Retaining Minutes

A governing body’s obligation to preserve minutes or a recording can come from multiple sources. Currently, the State Archivist’s rules generally provide that public meeting minutes must be retained permanently.[680] Audio or video recordings must generally be retained until one year after minutes have been prepared and approved.[681] However, a public body should consult the rules in Chapter 166 of the Oregon Administrative Rules that are specific to it, as well any special retention schedule approved by the Archivist.

In addition to the obligations imposed by retention laws, the Court of Appeals has construed Public Meetings Law to require minutes to be preserved for a reasonable time, and has held that a one-year retention met that standard for a school board in a particular instance.[682]

We recommend that, to comply with the Public Meetings Law and the retention laws, public bodies follow the relevant Archivist approved schedule, which generally calls for permanent retention.

E.  Executive (Closed) Sessions

The Public Meetings Law authorizes governing bodies to meet in executive session in certain limited situations.[683] An “executive session” is defined as “any meeting or part of a meeting of a governing body which is closed to certain persons for deliberation on certain matters.”[684]

Executive sessions should not be confused with meetings that are exempt from the Public Meetings Law altogether. An executive session is a type of public meeting and must conform to all applicable provisions of the Public Meetings Law (e.g., providing public notice and keeping minutes or recordings). Conversely, exempt meetings need not.

1.   Permissible Purposes of Executive Sessions

A governing body may hold an open session even when the law permits it to hold an executive session. However, the governing body has the authority to hold closed sessions regarding the following topics.

a.   Employment of Public Officers, Employees, and Agents

A governing body may hold an executive session to consider the employment of a public officer, employee, staff member, or individual agent, if the body has satisfied certain prerequisites.[685]

This provision applies for a chief executive officer, public officer, employee, or staff member only if the vacancy for the position has been advertised; if regular procedures for hiring have been adopted; and, for a public officer, if the public has had opportunity to comment on the employment.[686] For a chief executive officer, the governing body must have adopted hiring standards, criteria, and policy directives at meetings open to the public in which the public had the opportunity to comment.[687]

This authority to hold an executive session does not apply to consideration of general employment policies,[688] or to discussions of an officer’s salary in connection with the hiring of that officer.[689] This authority also does not apply to filling a vacancy in an elective office,[690] public committee, commission, or other advisory group.[691]

b.   Discipline of Public Officers and Employees

A governing body may hold an executive session to consider the dismissal or disciplining of a public officer, employee, staff member, or individual agent, or hear complaints or charges brought against such a person, if that person does not request an open hearing.[692]

In order to permit the affected person to request an open hearing, that person must have sufficient advance notice of the purpose of the meeting and the right to choose between an executive session and an open session. Although the provision requires an “open hearing” if the person involved so requests, we do not construe this provision to require an adversarial hearing, but only an open session. The affected person need not be present and has no right to postpone the hearing to permit an attorney to attend or to have a formal hearing unless another law, a contract, or a collective bargaining agreement provides those rights.

Regarding discipline of public officers and employees, we note the partial symmetry between the Public Meetings Law and the Public Records Law. Under the Public Meetings Law, a governing body may discuss discipline of an employee in executive session. Under the Public Records Law, records of a personnel discipline action and supporting materials and documents are conditionally exempt from disclosure if a disciplinary sanction has been imposed.[693]

c.   Public Hospital Medical Staff

Executive sessions are authorized for considering matters pertaining to the function of the medical staff of a public hospital licensed under ORS chapter 441 ».[694] This authorization includes consideration of all matters relating to medical competency in the hospital.[695] In addition, meetings of medical peer review committees held under ORS 441.055 » are exempt from the requirements of the Public Meetings Law.[696]

d.   Labor Negotiator Consultations

A governing body may hold an executive session “[t]o conduct deliberations with persons designated by the governing body to carry on labor negotiations.”[697] This subsection allows a governing body to confer in executive session with its labor negotiator(s).[698] Unlike most other executive sessions, the media may be excluded from these deliberations.[699]

The authority of a governing body to conduct labor negotiations with the employees’ negotiator in executive session is found in ORS 192.660(3), discussed below.

e.   Real Property Transactions

A governing body may go into executive session to deliberate with persons designated by the governing body to negotiate real property transactions.[700] Real property transactions are not limited to the purchase or sale of real property. For example, negotiations for a long-term lease transaction undoubtedly would be included within this provision.

The executive session must be limited to discussions of negotiations regarding specific real property and may not include discussion of a public body’s long-term space needs or general policies concerning lease sites.[701]

f.    Exempt Public Records

A governing body may go into executive session to consider “information or records that are exempt by law from public inspection.”[702] Thus, information or records that are exempt from public inspection under the Public Records Law may be considered in private.

Whether a particular record is exempt from public disclosure, and may therefore be considered in executive session, may depend not just on the exemptions listed in ORS 192.345 and ORS 192.355, but also on other federal and state statutes on confidentiality.[703]

However, a governing body has the cart before the horse if it attempts to withhold disclosure of a public record merely because the record was discussed, or might be discussed, in an executive session. The body’s authority to refuse to disclose a record depends on provisions of the Public Records Law, not of the Public Meetings Law.[704]

g.   Trade Negotiations

Preliminary negotiations involving matters of trade or commerce in which the governing body is competing with governing bodies in other states or nations may be conducted in executive session.[705] Use of this provision is permissible when the governing body knows or has good reason to believe it is competing with other governing bodies or nations regarding the matter to be discussed.[706]

h.   Legal Counsel

Executive sessions are appropriate for consulting with legal counsel concerning legal rights and duties regarding current litigation or litigation likely to be filed.[707] This authorization parallels the Public Records Law exemption for records pertaining to ongoing or anticipated litigation.[708] Any member of the news media that is a party to the litigation or is an employee, agent, or contractor of a news media organization that is a party, should be barred from attending.[709]

We believe that this provision is intended to put public bodies on an equal footing with private litigants. This means that the governing body should be able to engage in a private and candid discussion with counsel about the legal issues raised by the litigation. Such discussion may include not only procedural options, but also substantive analysis of the legal merits, risks, and ramifications of the litigation.

Our interpretation is consistent with the provision’s use of the fairly broad phrase “legal rights and duties,” and with the sensible public policies that we believe were part of the legislature’s intent. First, if a governing body and its counsel were compelled to discuss their litigation position in public, it could result in denying the public body its fair day in court. Any weaknesses in the public body’s position would undoubtedly be brought to the court’s attention and could affect the court’s objectivity. Second, our experience suggests that private and candid consultation with a governing body promotes quick resolution of inadvisable litigation. In executive session, counsel is in a better position to provide the frank advice that the governing body’s case is weak and that the litigation should be dismissed or settled.

The discussion in executive session may proceed even to the point at which the governing body has reached an informal consensus as to its course of action. However, any final decision must be made in open session.[710]

Attorney-Client Privilege

A governing body also has the authority to meet in executive session to obtain other professional legal services from its legal counsel. For example, confidential written legal advice from counsel is a privileged record that is typically exempt from disclosure under Public Records Law.[711] Considering records that are so exempt provides authority to meet in executive session.[712] Accordingly, if a governing body takes appropriate steps, it may use an executive session to discuss any legal matter of a confidential nature absent the existence or likelihood of litigation. The governing body should return to public session for any discussion of policy.

Some might argue that allowing executive session to discuss privileged matters is an open invitation to evade the purposes of the Public Meetings Law. But when a need for confidential discussion of legal issues arises, even in the absence of a threat of litigation, we see no reason why a governing body should not take advantage of the attorney-client privilege. Because it is unclear whether the ability to meet in executive discussion to discuss exempt records or information applies absent the existence of an exempt physical record, a governing body should not cite the privilege as a basis for executive session unless there is a written record of a privileged attorney-client communication, or the body’s legal counsel has advised that the executive session is appropriate.

A governing body does not waive the privilege by discussing the privileged information at executive session, even if the news media is present; and the privilege is not waived if the news media publicly discloses the information discussed in executive session, as long as the governing body made clear that the privileged information should not be re-disclosed.[713]

i.    Performance Evaluations of Public Officers and Employees

A governing body may hold an executive session “[t]o review and evaluate” the job performance of  a chief executive officer, other officers, employees, and staff, if the person whose performance is being reviewed and evaluated does not request an open hearing.[714] This does not allow discussion of an officer’s salary to be conducted in executive session in connection with the job performance evaluation of that officer.[715]

In order to permit the affected person to request an open hearing, the governing body must give sufficient advance notice to the person of the right to decide whether the performance evaluation will be conducted in open session. Despite the use of the term “hearing,” the affected person need not be present and has no right to postpone the hearing in order to attend or to permit an attorney to attend. Nor does the affected person have a right, under the Public Meetings Law, to have an attorney present evidence or to have a formal adversarial hearing. Other law, a contract, or a collective bargaining agreement, however, may provide such rights.

Disclosure of a public officer’s or employee’s performance evaluation generally is not an unreasonable invasion of privacy for purposes of exemption from the Public Records Law.[716] This is in contrast to a record of the disciplining of a public officer or employee, which is conditionally exempt from disclosure under another provision of the records law.[717] Notwithstanding Public Records Law requirements, under the Public Meetings Law a governing body may go into executive session to discuss an officer’s or employee’s performance. Also, the minutes of such an executive session may be withheld from disclosure as long as disclosure would be inconsistent with the session’s purpose,[718] even though some of the underlying personnel records may not be exempt from disclosure.

A governing body may not use an executive session held for purposes of evaluating a chief executive officer or other officer, employee, or staff member “to conduct a general evaluation of an agency goal, objective or operation or any directive to personnel concerning agency goals, objectives, operations or programs.”[719]

j.    Public Investments

An executive session may be called “[t]o carry on negotiations under ORS chapter 293 with private persons or businesses regarding proposed acquisition, exchange or liquidation of public investments.”[720] This is the counterpart to the exemption from disclosure of public records relating to proposed investments of state funds.[721] The authority to negotiate with private parties in executive session does not permit the governing body to take final action or to make a final decision in executive session.[722]

k.   School Safety Threats

A public body may go into executive session to consider matters relating to school safety or to a plan that responds to safety threats being made towards a school.[723]

l.   Health Professional Licensee Investigation

A health professional regulatory board  may go into executive session to consider information obtained as part of an investigation of licensee or applicant conduct.[724] These boards generally must keep confidential and not disclose any information obtained as part of an investigation into a licensee or applicant.[725] This prohibition extends to the disclosure of executive session minutes or other recordings.[726] However, these boards must disclose a notice of intent to impose a disciplinary sanction that has been issued by vote of the board, a final order that results from such a notice, and any consent order or stipulated agreement.[727]

Confidential information must be protected even when the board convenes in public session for purposes of deciding whether or not to issue a notice of intent to impose a disciplinary sanction on a licensee or to deny or to approve an application for licensure.[728] As a matter of general practice, boards should refer to the case by number and not disclose the name of the licensee or applicant or any other information that would permit the licensee or applicant to be identified.[729]

While the news media are permitted to attend these executive sessions, they are prohibited from re-disclosing any confidential information to any other member of the public.[730]

m.  Landscape Architect Registrant Investigation

The State Landscape Architect Board, or an advisory committee to the board, may go into executive session to consider information obtained as part of an investigation of registrant or applicant conduct.[731] Investigatory information is generally confidential unless a notice is issued for a contested case hearing or the matter is finally resolved by board action or a consent order.[732] This confidentiality extends to the disclosure of meeting minutes and recordings.[733] However, the public may obtain information confirming that an investigation is being conducted and describing the general nature of the matter.[734]

If any news media attend these executive sessions, they are prohibited from re-disclosing any confidential information to any other member of the public, until the information ceases to be confidential.[735]

n.   Security Programs

A governing body may go into executive session to “discuss information about review or approval of programs relating to the security”  of a number of specified structures, activities, and materials relevant to the operation of the state’s infrastructure:

• A nuclear-powered thermal power plant or nuclear installation;
• Transportation of radioactive material derived from or destined for a nuclear-fueled thermal power plant or nuclear installation;
• Generation, storage or conveyance of electricity; gas in liquefied or gaseous form; hazardous substances as defined in ORS 453.005 »(7)(a), (b), and (d); petroleum products; sewage; or water;
• Telecommunication systems, including cellular, wireless, or radio systems; or
• Data transmissions by whatever means provided.[736]

o.   Labor Negotiations

A governing body can conduct labor negotiations in executive session if negotiators for both sides request that negotiations be conducted in private.[737] If an executive session is held, the governing body does not need to provide the typical notice to the general public and to news media that have requested notice.[738]

However, this permission to meet in executive session does not mean that all labor negotiations are necessarily subject to Public Meetings Law.[739] For example, if an individual negotiator were retained by the governing body, the resulting negotiations would not be subject to the meetings law because the individual would not be a governing body.[740] Even negotiations conducted by multiple retained labor negotiators are not subject to meetings law because those negotiators do not qualify as members of a public body, and therefore do not constitute a governing body.[741]

q.   Other Executive Session Statutes

The Public Meetings Law list of matters appropriate for executive session is not exclusive. Statutes outside the meetings law authorize governing bodies to hold executive or closed sessions, sometimes without cross-referencing the Public Meetings Law. For example, district school boards are authorized to meet in executive session to hold a hearing regarding expulsion of a student from a public school or a student’s confidential medical records.[742] The Teacher Standards and Practices Commission may meet in executive session to receive the executive director’s findings and recommendations on the investigation of a licensee,[743] and to make its own findings.[744] And the Commission on Judicial Fitness and Disability may hold closed hearings to inquire into allegations of a judge’s temporary disability.[745]

2.   Final Decision Prohibition

“No executive session may be held for the purpose of taking any final action or making any final decision.”[746] It is quite likely that the governing body may reach a consensus in executive session, and its members of course will know of that consensus. The purpose of the “final decision” requirement is to allow the public to know the result of the discussions. Taking a formal vote in open session satisfies that requirement, even if the public vote merely confirms a tentative decision reached in an executive session.

The statute does not define “final action” or “final decision.” We recommend that the governing body choose a public decision unless a final public decision clearly is not required. The relevant criteria are the nature of the decision or action, and whether publicly announcing the decision would frustrate the purpose behind the statutory authorization for the particular executive session.

For example, the nature of decisions authorizing expenditure of funds makes it highly unlikely that these decisions could be made in executive session. But the decision to reduce a slate of 30 candidates for chief executive officer to 10 candidates or to three finalists is likely not a final decision or action. The legislative policy behind the executive session for such discussions would be undermined by disclosing the names of candidates who might not have applied if their candidacy would immediately become known. However, a decision to spend $2,500 to bring the finalists in for interviews would be a final decision. A decision to negotiate with a “first choice” candidate, with salary and other conditions of employment remaining unsettled, is not a final decision. A decision to formally offer the position to one candidate is a final decision, even before acceptance.

A governing body cannot evade the “final action” requirement by using coded terms. For example, a formal public vote to extend an offer of appointment to “Ms. A” would be a clear violation of the law’s requirements, unless a statute outside of the Public Meetings Law prohibits disclosure of the individual’s name.

A governing body meeting in executive session must return to public session before taking final action. This requirement cannot be circumvented by simply announcing, in executive session, that the meeting is now open, and then proceeding without affording interested persons a chance to attend. If a public meeting will be held again after the executive session, the desirable practice would be to announce, before the executive session, a specific time for returning to open session. Otherwise, reasonable means must be used to give actual notice to interested persons that the meeting is again a public meeting. If the executive session has been short, it may be sufficient to open the door and announce to persons in the hall that the meeting is open to the public. But clearly, returning to an unscheduled and unannounced “open session,” for which those attending the previous session have no notice and no opportunity to attend, does not comply with the law.

The formal decision, of course, can be postponed to the next regular or duly announced public meeting. In fact, this procedure is necessary for any executive session that is not held in conjunction with a public session, unless the notice of executive session also informs the public and interested persons of the time and place at which the session will be opened to make the formal decision.

Finally, statutes outside the Public Meetings Law effectively may modify the requirement that no final action be taken in executive session. For example, in labor negotiations covered by the Public Employees Collective Bargaining Act, an offer made by the governing body’s negotiator, if accepted by the employees’ bargaining representative, is binding and effective, and an agreement must be signed even if the governing body has not formally approved the offer in open session.[747] The governing body may then appropriately ratify the agreement at a subsequent public meeting.[748]

3.   Method of Convening Executive Session

A governing body may hold a meeting consisting of only an executive session. The notice requirements are the same as those for any other meeting.[749] In addition, the notice must cite to the statutory authority for the executive session.[750] An example of this type of notice is found at Appendix J-5.

An executive session may also be called during a regular, special, or emergency meeting for which notice has already been given. The person presiding over the meeting must announce the statutory authority for the executive session before going into executive session.[751] A sample script for use in calling an executive session during a public meeting is found at Appendix J-8.

4.   Media Representation at Executive Session

Representatives of the news media are expressly allowed to attend executive sessions, with some exceptions.[752] However, the governing body may require that these attendees not disclose specific information discussed at the sessions.[753]

Legislative history reveals that allowing media attendance was intended to foster good relations with news media organizations; provide a mechanism to ensure that governing bodies limited executive sessions to permissible purposes; and permit the media to gain valuable background information for future reporting.[754]

a.   Who is a representative of the news media?

A representative of the news media is a news gatherer[755] who has a formal affiliation with an institutional news medium, that is, with an entity formally organized for the purpose of gathering and disseminating news.[756] The news media includes specialty publications, which cover specific subject areas for a special audience, regardless of whether the publication’s specific area relates to the subject matter of a particular executive session.[757]

The news media is not limited to traditional print and broadcast media, but can include internet media.[758] For example, while a blogger keeping an online personal journal with reflections and comments would likely not qualify as a representative of the news media, an individual who regularly posts for a website maintained a by traditional media company (e.g., cnn.com) likely would qualify.[759] Relevant factors typically include whether the entity has staff and a formal business structure and regularly disseminates news to the public.[760] Because no bright-line definition exists, we encourage governing bodies to consult with their legal counsel when receiving a request from a blogger or other non-traditional journalist to attend an executive session.

While governing bodies can adopt comprehensive policies regarding access to executive sessions, those policies are unenforceable to the extent they conflict with the statutory requirements permitting representatives of the news media to attend.[761] For example, a governing body cannot limit attendance to one representative of each type of news medium;[762] exclude a representative with a personal interest in the executive session’s subject matter;[763] exclude a representative for failing to provide media credentials within certain deadlines;[764] or require representatives to provide advance notice of their intent to attend an executive session.[765] However, governing bodies are not required to accept a mere assertion that a person qualifies as a news representative.[766]

b.   Re-disclosing Information

A governing body may require that media representatives not disclose specific information.[767] The presiding officer should make the specification, or the governing body could do so (or overrule the presiding officer) by motion. Absent any such specification, the entire proceeding may be reported and the purpose for having an executive session may be frustrated. Except in the rarest instances, the governing body at least should allow the general subject of the discussion to be disclosed, and it cannot prevent discussion of the statutory grounds justifying the session. The nondisclosure requirement should be no broader than the public interest requires.

However, the Public Meetings Law provides no sanction to enforce this requirement that a news representative not disclose specified information.[768] The experience of more than three decades has been that the media, by and large, honor the nondisclosure requirement. Ultimately, “enforcement” of the nondisclosure requirement depends upon cooperation between public officials and the media. This cooperation advances the purposes of both government and the news media.

A media representative has no obligation to refrain from disclosing information gathered at an executive session if the governing body fails to specify that certain information is not for publication. But media representatives may wish, in a spirit of cooperation, to inquire whether a governing body’s failure to specify was an oversight. And a representative is under no obligation to keep confidential any information the reporter independently gathers as the result of leads obtained in an executive session. A representative also has the clear right to disclose any matter covered in an executive session that is not properly within the scope of the announced statutory authorization. Indeed, the presence of media representatives at executive sessions probably encourages compliance with statutory restrictions on holding closed sessions.

Although members of the public typically may tape record or video record public meetings with an unconcealed device,[769] we do not believe this is the case with respect to members of the media who attend executive sessions. We believe the presiding officer may require that members of the media not tape or video record executive sessions, in order to decrease the likelihood that information discussed in the executive session will be inadvertently disclosed.

c.   Exceptions

Several exceptions exist to the general rule permitting representatives of the news media to attend executive sessions.  The media can be excluded from an executive session held to conduct deliberations with the governing body’s labor negotiator(s),[770] or a hearing held by a district school board to consider expulsion of a student from a public school or a student’s confidential medical records.[771]

When an executive session is held for the purpose of conferring with legal counsel about current litigation or litigation likely to be filed, the governing body must exclude any member of the news media who is a party to the litigation to be discussed, or who is an employee, agent, or contractor of a news media organization that is a party to the litigation.[772]

5.   Other Persons Permitted to Attend Executive Sessions

An executive session is by definition a meeting “which is closed to certain persons.”[773] It follows that the governing body may permit other persons to attend. Generally, an executive session is closed to all except members of the governing body, persons reporting to it on the subject of the executive session or who are otherwise involved, and news media representatives. However, nothing prohibits the governing body from permitting other specified persons to attend.[774] And statutes outside of the Public Meetings Law specifically allow health professional regulatory boards to permit public officials and members of the press to attend executive sessions in which the board considers information it has obtained in the course of an investigation of a licensee or applicant.[775] The attending individuals should be reminded, however, that they may not disclose such information to any other members of the public. The fact that certain persons have been allowed to attend is not grounds for the general public to attend the executive session.

F.   Enforcement of the Law

As noted above, the Attorney General and district attorneys have no enforcement role under the Public Meetings Law. Education and persuasion are by far the best tools available to obtain compliance. Most violations of the Public Meetings Law occur because the governing body is not familiar with the requirements of the law. Quoting the provisions of the law to the governing body often results in future compliance. Most governing bodies that are aware of the law make a good faith effort to comply.

There are, however, cases in which governing bodies continue to violate the law and can be neither persuaded nor educated. Even in such a case, quoting the legal provisions that create potential personal liability of governing body members for attorney fees, ORS 192.680(3) and (4), or that authorize the imposition of civil penalties for violation of the executive session provisions of the law, ORS 192.685, is worth trying before suit is filed. But in some cases only litigation will suffice.

1.   Injunctive or Declaratory Actions

Anyone affected by a decision of a governing body may file a lawsuit to require compliance with, or prevent violations of, the Public Meetings Law by members of the governing body, or to determine whether the Public Meetings Law applies to meetings or decisions of the governing body.[776] The Court of Appeals has held that residents of a school district, and a labor organization whose members included district employees and taxpayers, were affected by the district’s decisions where they were “vitally interested in all manner of [the district’s] decisions.”[777] And the court held that organizations that educated the public about animal exploitation would have their interests impacted by a university committee charged with ensuring the proper treatment of animals used in research.[778]

A suit must be brought in the circuit court of the county in which the governing body ordinarily meets,[779] and must be commenced within 60 days following the date that the decision becomes public record.[780] The plaintiff must engage a private attorney, or appear pro se (for oneself). An action may be brought even before any decision affecting the plaintiff has been made,[781] and is not moot solely because a governing body has ceased its improper meeting practices.[782]

If a court determines that a governing body made a decision in violation of Public Meetings Law, the decision may be voided,[783] or the court may order appropriate equitable relief.[784] The court may also order payment of the plaintiff’s reasonable attorney fees.[785] The governing body can avoid the voiding of its decision by reinstating the decision while in compliance with the law.[786] We construe this to require the governing body to substantially reconsider the issues, and not to merely conduct a perfunctory rerun.

Similarly, if a subcommittee decides on a recommendation to a public body in violation of the law, the public body can avoid the voiding of its subsequent decision by making the decision in full compliance with the law.

However, if a governing body’s violation was the result of intentional disregard of the law or willful misconduct by a quorum, then the court will void the decision (despite any attempt to reinstate the decision), unless other equitable relief is available.[787] In addition, any members of the body who engaged in the willful misconduct will be personally liable to the governing body for any attorney fees it has to pay to the plaintiff.[788]

We think that voiding a governing body’s decision is typically a remedy of last resort. That remedy often may be viewed as contrary to the public interest by undermining the stability of governmental decision-making and harming innocent persons who have acted in reliance on that decision. However, a violation involving an aggravating factor, such as a conflict-of-interest violation, may lead to the decision being voided.

2.   Civil Penalties

Complaints that public officials have violated the executive session provisions may be made to the Oregon Government Ethics Commission for review and investigation.[789] Violations can result in civil penalties up to $1,000, unless the governing body was acting under the advice of its legal counsel.[790]

In reviewing and investigating a complaint, the commission may interview witnesses, review minutes and other records, and obtain any other information pertaining to the governing body’s executive sessions.[791]

If the commission chooses not to pursue a complaint at any time before conclusion of a contested case hearing, the public official against whom the complaint was brought may be entitled to reimbursement of reasonable costs and attorney fees. The reimbursement would be made by the public body to which the official’s governing body has authority to make recommendations or for which the official’s governing body has authority to make decisions.[792] A public official who prevails following a contested case hearing shall, upon petition to Marion County Circuit Court, be awarded reasonable attorney fees to be paid by the commission.[793]

[568] ORS 192.620.

[569] ORS 192.630(1)–(2).

[570] ORS 192.640.

[571] ORS 192.630(4)–(5).

[572] E.g., TriMet v. Amalgamated Transit Union Local 757 », 362 Or 484, 497 (2018) (rejecting interpretation that would “severely undermine” the policy that decisions of governing bodies be arrived at openly); Oregonian Publ’g Co. v. Board of Parole », 95 Or App 501, 506 (1989) (this policy requires courts to “analyze coverage of the act broadly and its exemptions narrowly”).

[573] Letter of Advice to Ron Eachus, at 7, 1988 WL 416300 (OP-6292) (Sept 12, 1988).

[574] ORS 192.610(4).

[575] Letter of Advice to Rep. Larry Hill and William L. Miles, at 11, 1986 WL 228236 (OP-5885, OP-5986) (May 28, 1986)  (private, nonprofit corporation whose board included public officials serving in their individual capacities was not a public body).

[576] 42 Op Atty Gen 187, 189, 1981 WL 152293 (1981) (governor was not a public body under meetings law); see Indep. Contractors Research Inst. v. DAS », 207 Or App 78, 92–94 (2006) (no violation of meetings law for advisory committee reporting to DAS’s Chief Procurement Officer).

[577] ORS 192.610(3).

[578] Id.

[579] 42 Op Atty Gen at 188 (multi-state panel formed to assess the economic consequences of the construction of nuclear power plants was not a governing body where it did not have the power to decide policy or make recommendations).

[580] ORS 192.610(3).

[581] 42 Op Atty Gen at 189.

[582] See Indep. Contractors Research Inst. », 207 Or App at 92–94 (DAS’s Chief Procurement Officer).

[583] Meetings of an advisory committee addressing administration and policy issues related to the Oregon Health Plan must comply with the Public Meetings Law when two or more committee members in attendance are not employed by a public body. ORS 414.227 ». This requirement applies even if the committee makes recommendations only to an individual official, e.g., the Administrator of the Office for Oregon Health Plan Policy and Research.

[584] Letter of Advice to W.T. Lemman, at 3–5, 1988 WL 416293 (OP-6248) (Oct 13, 1988) (search committee for university president that reported to chancellor was a governing body where the chancellor had limited role other than forwarding the committee’s recommendations to the State Board of Higher Education).

[585] See 46 Op Atty Gen 155, 166–67, 1989 WL 439806 (1989) (Oregon Medical Insurance Pool was, at the time of this opinion, essentially a private entity and, therefore, not a “public body” subject to the Public Meetings Law).

[586] ORS 430.610–430.695 ».

[587] See 38 Op Atty Gen 2105, 1978 WL 29512 (1978).

[588] The six factors are: 1) The entity’s origin―Was it created by government or was it created independently? 2) The nature of the function(s) assigned and performed by the entity―Are the functions traditionally performed by government or are they commonly performed by a private entity? 3) The scope of authority granted to and exercised by the entity―Does it have authority to make binding decisions for the government? 4) The nature and level of governmental financial and nonfinancial support. 5) The scope of governmental control over the entity. 6) The status of the entity’s officers and employees―Are they public employees? Marks v. McKenzie High School Fact-Finding Team », 319 Or 451, 464–65 (1994).

[589] ORS 430.342.

[590] ORS 329.175(6). In addition, records created or presented at a meeting of such a governing body, as well as the meeting minutes, are subject to Public Records Law. ORS 329.175(6)(a).

[591] ORS 192.630(1).

[592] ORS 192.610(5).

[593] ORS 192.630(2).

[594] TriMet v. Amalgamated Transit Union Local 757 », 362 Or 484, 497 (2018).

[595] TriMet v. Amalgamted Transit Union Local 757 », 276 Or App 513, 525 (2016), aff’d, 362 Or 484 (2018).

[596] TriMet », 362 Or at 500.

[597] Id.

[598] Id. at 500–01 (citing ORS 174.130 »).

[599] Handy v. Lane County », 274 Or App 644, 658 (2015) (ORS 192.630(1) applies to “contemporaneous gatherings of a quorum”), rev’d on other grounds, 360 Or 605 (2016).

[600] Letter of Advice to Ron Eachus, at 6, 1988 WL 416300 (OP-6292) (Sept 12, 1988).

[601] ORS 756.055 ».

[602] Letter of Advice to Ron Eachus, at 7–8.

[603] See ORS 192.630(1) (referring to “meetings,” which are defined in ORS 192.610(5)).

[604] See ORS 192.630(2) (referring to “decision,” which is defined in ORS 192.610(1)).

[605] 38 Op Atty Gen 1471, 1977 WL 31327 (1977); see Oregonian Publ’g Co. v. Bd. of Parole », 95 Or App 501, 505–06 (1989) (Board of Parole had to open the information-gathering portions of its meetings to the public); Letter of Advice to Ron Eachus, at 6 (a quorum of the Public Utility Commission could not meet with staff in private to receive informational briefings on public utility regulation and agency administration).

[606] See ORS 192.620.

[607] 38 Op Atty Gen at 1474.

[608] Harris v. Nordquist », 96 Or App 19, 24–25 (1989).

[609] Letter of Advice to Ron Eachus, at 7.

[610] Handy v. Lane County », 274 Or App 644, 666–67 (2015), rev’d on other grounds, 360 Or 605 (2016). A dissenting opinion concluded to the contrary. Id. at 683–84 (Devore, J., concurring in part and dissenting in part).

[611] Id. at 664–65.

[612] Handy v. Lane County », 360 Or 605, 623–26 (2016).

[613] Id. at 616–17 (noting that both the Court of Appeals majority and dissent “offered persuasive * * * interpretations”). The court based its reversal on the lack of evidence that all three board members deliberated towards a decision, explaining that one member’s passive receipt of a communication could not by itself rise to the level of a deliberation. Id. at 624.

[614] ORS 192.670(1).

[615] ORS 192.670(2).

[616] ORS 192.672(2)(a).

[617] ORS 192.672(2)(b).

[618] ORS 192.610(5).

[619] This exemption applies to proceedings that are initiated in the judicial branch, are part of an adjudicative process, and potentially culminate in a judicial decision. Letter of Advice to David F. White », at 5, 2014 WL 7150430 (OP-2014-2) (Dec 10, 2014). We have concluded that meetings of the Board of Bar Examiners regarding whether an applicant has sufficient moral character or fitness to practice law are exempt, but not the board’s meetings to discuss the bar examination, id. at 5–7; and that meetings of the Bar’s State Professional Review Board are exempt, Letter of Advice to L. Patrick Hearn », 1997 WL 469004 (OP-1997-4) (Aug 13, 1997).

[620] ORS 192.690.

[621] Oregonian Publ’g Co. v. Bd. of Parole », 95 Or App 501, 506 (1989).

[622] 40 Op Atty Gen 388, 389–90, 1980 WL 112751 (1980).

[623] ORS 192.640(1).

[624] Id. Members of the governing body, of course, should also receive actual notice. Cf. ORS 182.020(1) » (state boards and commissions shall give members ten days’ notice, in writing).

[625] ORS 192.640(2).

[626] Id.

[627] ORS 192.640(3).

[628] Id.

[629] Id.

[630] Or. Ass’n of Classified Employees v. Salem-Keizer Sch. Dist. 24J », 95 Or App 28, 32 (1989) (actual emergency concerning budget and levy problems did not “convert the contract approval deliberations into an emergency”).

[631] Id. at 33–34 (“An actual emergency, within the contemplation of the statute, must be dictated by events and cannot be predicated solely on the convenience or inconvenience of members of the governing body.”).

[632] See ORS 192.630(5)(a) (“It is discrimination[,] * * * upon request of a person who is deaf or hard of hearing, to fail to make a good faith effort to have an interpreter * * * provided at a regularly scheduled meeting.”).

[633] ORS 192.640(1). This requirement ordinarily would be met by disseminating an agenda.

[634] Id.

[635] See ORS 192.640(2).

[636] ORS 276A.253(4)(a) ».

[637] ORS 276A.253(7)(c).

[638] ORS 192.630(4)(a)(A)–(C). These alternatives are available because some small districts may maintain administrative offices outside the boundaries of the district, or have offices that lack meeting space.

[639] ORS 192.630(4)(D).

[640] ORS 192.630(4)(c).

[641] Id.

[642] ORS 192.630(4)(d).

[643] ORS 192.630(4)(b).

[644] ORS 192.630(3).

[645] Id.; see also Americans with Disabilities Act, 42 USC § 12131 » et seq. (prohibiting discrimination against persons with disabilities by public entities and by places of public accommodation, applicable to meeting sites owned by private entities).

[646] ORS 192.630(5)(a). The interpreter requirement applies only to a regularly scheduled meeting. Id. If a meeting is held upon less than 48 hours’ notice, the governing body must make a “reasonable effort” to have an interpreter present upon request; and the requirement does not apply to emergency meetings. ORS 192.630(5)(c).

[647] Requests for interpreters can be made through the Department of Human Services at http://www.oregon.gov/dhs/business-services/odhhs/pages/index.aspx ».

[648] ORS 192.630(5)(e).

[649] ORS 192.630(5)(b).

[650] See ORS 192.630(5)(a) (the sole remedy for a violation is provided by ORS 192.680).

[651] 42 USC §§ 12131(2), 12132 »; 28 CFR § 35.160 ».

[652] See, e.g., ORS 215.060 » (requiring public hearings on actions regarding a county comprehensive plan).

[653] ORS 192.660(7)(d)(C).

[654] ORS 192.660(7)(d)(D).

[655] Letter of Advice to Sen. Margie Hendricksen, at 7 (OP-5468) (July 13, 1983) (violating commission’s rules on order, decorum, and time allowed for presentations, and disturbing a lawful assembly would provide grounds for ejection); see State v. Marbet », 32 Or App 67, 73–76 (1978) (affirming criminal conviction for trespass for refusing to leave a hearing after being ordered by the hearings officer); OAR 137-004-0010 » (model rule stating that “[a] presiding officer may expel a person from an agency proceeding if that person engages in conduct that disrupts the proceeding”).

[656] State v. Seidel », 294 Or App 389, 394 (2018) (affirming conviction for disruptive citizen who failed to obey police officer’s order to leave a city council meeting).

[657] 38 Op Atty Gen 50, 1976 WL 451475 (1976).

[658] ORS 165.540(6)(a) ».

[659] ORS 433.845(1) ». The exceptions to this prohibition generally aren’t relevant to public meetings. See ORS 433.850.

[660] A place of employment is “an enclosed area under the control of a public or private employer, including * * * conference rooms [and] meeting rooms.” ORS 433.835(4)(a) ».

[661] See ORS 433.845(1) (referring to an “inhalant,” defined at ORS 433.835(3)).

[662] See id. (referring to a “smoking instrument,” defined at ORS 433.835(7)).

[663] ORS 433.845(2).

[664] 37 Op Atty Gen 183, 1974 WL 187704 (1974); see ORS 192.660(6) (“No executive session may be held for the purpose of taking any final action or making any final decision.”).

[665] ORS 192.650(1)(c).

[666] Id.

[667] 39 Op Atty Gen 525, 526, 1979 WL 35618 (1979).

[668] Id. at 526–28 (Springfield City Charter’s requirement of a secret vote to choose the presiding member was preempted by Public Meetings Law).

[669] Gilmore v. Bd. of Psychologist Examiners », 81 Or App 321, 324 (1986) (“The absence of a recorded vote alone is not reversible error.”).

[670] Id.

[671] ORS 192.650(1)–(2) Some governing bodies may be subject to additional requirements: for example, the Oregon Investment Council must make “full sound recordings” of its meetings and maintain a written log of each recording. ORS 293.714 ».

[672] ORS 192.650(1)(a)–(e). A reference to an exempt document does not affect the public body’s ability to assert the exemption, ORS 192.650(3), but open discussion of the document’s contents might result in a waiver.

[673] ORS 192.650(1).

[674] Id.

[675] Id.

[676] A governing body is generally not required to transcribe a recording, but may choose to do so and may charge a requester a fee for that work, ORS 192.650(4).

[677] ORS 192.650(2). Disclosing minutes or recordings that relate to the substance and disposition of licensee or applicant conduct investigated by a health professional regulatory board or by the State Landscape Architect Board is governed instead by ORS 676.175 » and ORS 671.338 », respectively. ORS 192.660(9).

Also, the written minutes of an executive session held by a district school board regarding expulsion of a minor student from a public school or a student’s confidential medical records should not contain any information excluded under ORS 332.061(2) ». ORS 192.650(2).

[678] See Public Records Order, Nov 17, 2014, Budnick », at 4 (granting petition for only portions of an audio recording of an executive session).

[679] 28 CFR § 35.164 »; Nelson v. Thornburgh », 567 F Supp 369 (ED Pa 1983), aff’d, 732 F2d 146 (3rd Cir 1984).

[680] E.g., OAR 166-150-0005(17) » (county and special district governing bodies). Most public bodies are subject to retention schedules approved by the Archivist. See ORS 192.005(4), (6) (defining the state and local entities that are subject to ORS 192.108).

[681] E.g., OAR 166-150-0005(17) ». This suggests that if a county or special district governing body (or other governing bodies with similar schedules) keeps only a video or audio recording, it must retain that recording on a permanent basis.

[682] Harris v. Nordquist », 96 Or App 19, 25–26 (1989).

[683] ORS 192.660(1).

[684] ORS 192.610(2) (emphasis added).

[685] ORS 192.660(2)(a).

[686] ORS 192.660(7)(d)(A)-(C).

[687] ORS 192.660(7)(d)(D).

[688] ORS 192.660(7)(c).

[689] 42 Op Atty Gen 362, 1982 WL 183044 (1982).

[690] ORS 192.660(7)(a).

[691] ORS 192.660(7)(b).

[692] ORS 192.660(2)(b).

[693] ORS 192.345(12); City of Portland v. Rice », 308 Or 118, 124 (1989) (this exemption does not apply to records of an investigation that does not result in any disciplinary sanction).

[694] ORS 192.660(2)(c).

[695] Id.

[696] ORS 192.690(1). Because the exemption of these meetings was enacted after the executive session provision, we conclude that these meetings are entirely exempt from the Public Meetings Law.

[697] ORS 192.660(2)(d).

[698] 42 Op Atty Gen 362, 363–64, 1982 WL 183044 (1982).

[699] ORS 192.660(4).

[700] ORS 192.660(2)(e).

[701] Letter of Advice to Rep. Carl Hosticka, 1990 WL 519211 (OP-6376) (May 18, 1990).

[702] ORS 192.660(2)(f).

[703] See ORS 192.355(8) (public records are exempt if federal law or regulation prohibits disclosure); ORS 192.355(9)(a) (public records are exempt if disclosure “is prohibited or restricted or otherwise made confidential or privileged under Oregon Law”).

[704] However, the Public Meetings Law provision permitting the withholding of the minutes or recordings of an executive session if disclosure would be “inconsistent with the purpose” of the session, ORS 192.650(2), is incorporated as a public records exemption by ORS 192.355(9).

[705] ORS 192.660(2)(g).

[706] 42 Op Atty Gen 392, 397, 1982 WL 183052 (1982).

[707] ORS 192.660(2)(h).

[708] See ORS 192.345(1).

[709] ORS 192.660(5).

[710] ORS 192.660(6).

[711] See ORS 192.355(9)(a) (incorporating as exemptions any Oregon laws that make records privileged).

[712] ORS 192.660(2)(f). But see ORS 192.355(9)(b) (noting a specific set of circumstances in which the attorney-client privilege does not exempt factual information from disclosure).

[713] ORS 40.280 ».

[714] ORS 192.660(2)(i).

[715] 42 Op Atty Gen 362, 1982 WL 183044 (1982).

[716] 41 Op Atty Gen 437 (1981).

[717] See ORS 192.345(12).

[718] See ORS 192.650(2).

[719] ORS 192.660(8).

[720] ORS 192.660(2)(j).

[721] See ORS 192.355(13).

[722] ORS 192.660(6).

[723] ORS 192.660(2)(k).

[724] ORS 192.660(2)(L).

[725] ORS 676.175(1) ».

[726] See ORS 192.660(9)(a) (noting that ORS 676.175 governs the disclosure of these minutes and recordings); 49 Op Atty Gen 32, 75–76, 1998 WL 223374 (1998).

[727] ORS 676.175(5)(a) ». And when the board votes not to issue a notice of intent to impose a disciplinary action, it shall disclose investigatory information if the requester demonstrates by clear and convincing evidence that the public interest in disclosure outweighs other interests in nondisclosure. ORS 676.175(2)(a). See ORS 676.175 for more exceptions to the general prohibition.

[728] 49 Op Atty Gen at 74 ».

[729] Id.

[730] ORS 676.175(8)(a) ».

[731] ORS 192.660(2)(m).

[732] ORS 671.338(1)(b) ».

[733] See ORS 192.660(9)(b) (noting that ORS 671.338 governs the disclosure of these minutes and recordings).

[734] ORS 671.338(1)(b) ».

[735] ORS 671.338(3) ».

[736] ORS 192.660(2)(n).

[737] ORS 192.660(3).

[738] Id.

[739] TriMet v. Amalgamated Transit Union Local 757 », 362 Or 484, 503 (2018).

[740] SW Or. Publ’g Co. v. SW Or. Comm. Coll. Dist. », 28 Or App 383, 386 (1977).

[741] See id.

[742] ORS 332.061(1) ». The hearing should be conducted in executive session unless the student, student’s parent, or student’s guardian requests a public hearing. Id.

[743] ORS 342.176(3)(a) ».

[744] ORS 342.176(7) ».

[745] ORS 1.425(2) ». However, the subject judge has the right to request a public hearing. Id.

[746] ORS 192.660(6). At least one public body has a specific statute requiring a final decision to be made in executive session: the Government Ethics Commission must make its decision at the conclusion of the Preliminary Review Phase in executive session. ORS 244.260(4)(d)(C) ».

[747] S. Benton Educ. Ass’n v. Monroe Union High Sch. Dist. #1 », 83 Or App 425, 431–32 (1987).

[748] Id.

[749] See ORS 192.640(2).

[750] Id.

[751] ORS 192.660(1).

[752] ORS 192.660(4).

[753] Id.

[754] Op Atty Gen No 8291, at 12, 2016 WL 2905510 (Apr 18, 2016), available at https://www.doj.state.or.us/wp-content/uploads/2017/06/op8291.pdf.

[755] A reporter would typically qualify as a news gatherer, while, for example, a newspaper’s advertising manager is not a news gatherer and therefore would not qualify as a representative of the news media. 39 Op Atty Gen 600, 602, 1979 WL 35636 (1979).

[756] Op Atty Gen No 8291, at 13–14. Note that portions of our earlier opinions interpreting this phrase may no longer be valid in light of this recent 2016 opinion.

[757] Id. at 14.

[758] Id. at 15–16.

[759] Id.

[760] Id. at 16.

[761] Id. at 20.

[762] Id. at 17.

[763] Id. at 17–18.  However, as discussed below, certain representatives connected to current or anticipated litigation involving the governing body can be excluded from an executive session discussing that litigation. ORS 192.660(5).

[764] Op Atty Gen No 8291 », at 21.

[765] Id.

[766] Id. at 20.

[767] ORS 192.660(4). See a sample script at Appendix J-8.

[768] Op Atty Gen No 8291, at 18–19; 42 Op Atty Gen 392, 397–98, 1982 WL 183052 (1982).

[769] See ORS 165.540(6)(a) » (providing exception to crime of recording communications without notice).

[770] See ORS 192.660(4) (referring to ORS 192.660(2)(d)); Barker v. City of Portland », 67 Or App 23 (1984) (city council did not violate meetings law by selectively excluding editor-in-chief of union’s newspaper from an executive session with city’s labor negotiators).

[771] See ORS 192.660(4) (referring to ORS 332.061(2) »). However, this exception applies only if the student or the student’s parent or guardian does not request a public hearing.

[772] ORS 192.660(5). We have concluded that a “member” of the news media is synonymous with a “representative” of the news media. Op Atty Gen No 8291, at 16. For further analysis on who is an employee, agent, or contractor of a news media organization, see id. at 16–17.

[773] ORS 192.610(2) (emphasis added).

[774] Cf.Barker », 67 Or App at 24 (noting that a city council allowed certain news media representatives to attend an executive session with the city’s labor negotiators even though the media could have been excluded).

[775] ORS 676.175(8)(a) ». In this context, “public official” means a member, member-elect, staff member, or employee of a state agency or board, a district attorney’s office, the Department of Justice, a state or local public body that licenses, franchises or provides emergency medical services, or a law enforcement agency, as long as the executive session reasonably relates to the entity’s regulatory or enforcement function. See ORS 676.175(8)(b) (referring to ORS 676.177).

[776] ORS 192.680(2). Such a lawsuit is the exclusive remedy for a violation of Public Meetings Law, ORS 192.680(6), except for the Oregon Government Ethic Commission’s imposition of civil penalties for violating the executive session provisions, ORS 192.685.

[777] Harris v. Nordquist », 96 Or App 19, 22–23 (1989).

[778] SETA v. Inst. Animal Care & Use Comm. », 113 Or App 523, 527 (1992).

[779] ORS 192.680(2).

[780] ORS 192.680(5).

[781] Harris », 96 Or App at 22–23 (1989) (plaintiff seeking to enjoin future violations).

[782] Barker v. City of Portland », 94 Or App 762, 765 (1989)  (explaining that the governing body’s past illegal actions remained in violation of the law).

[783] ORS 192.680(1).

[784] ORS 192.680(3).  An example of equitable relief is ordering the governing body to avoid future violations of Public Meetings Law. Future violations of such an order could lead to penalties for contempt of court.

[785] Id.

[786] ORS 192.680(1).

[787] ORS 192.680(3).

[788] ORS 192.680(4).

[789] ORS 192.685(1). The commission has adopted rules to carry out this function at chapter 199, division 40 », of the Oregon Administrative Rules.

[790] ORS 244.350(2) ».

[791] ORS 192.685(2).

[792] ORS 192.685(3).

[793] ORS 244.400 ».