Commissioners Main and Parry appear to have violated public records rules by allowing the committee chosen to select an interim commissioner to deliberate about the applicants during an executive session. Before voting to select Fred Messerle to replace the late Nikki Whitty last Tuesday, Main cleared the room of all spectators except for Sheriff Craig Zanni, Coos County Human Resources director Mike Lehman and Gail Elber of The World Newspaper.
Previously, during the February 16 applicant interviews that saw the appointment of Cam Parry, the issue of executive session deliberations came up. Main and the committee were advised by county counsel, Jacqueline Haggerty they could not deliberate on the candidates outside of the public view. “If you want to go into exec for purposes of deliberation then I do not know of any authorization under public meeting laws that would authorize executive session”, said Haggerty. She went further to explain that sharing thoughts on the applicants in executive session was not allowable. “That would be deliberation”, she said. [full transcript below]
After members of the committee expressed discomfort last Tuesday to discussing the applicants while one interviewee, Rickey Wiley, was still present, Main said “We can go into exec, I guess”, even though the applicant, Wiley, graciously offered to leave. Parry nodded and Main asked the public to leave.
The committee deliberated during the executive session, discussed the interviewees and whittled the number of applicants down from seven to two before coming back into open session to vote. According to Oregon statutes 192.660 the exceptions that entitle a governing body to hold executive session do not apply to “The filling of a vacancy in an elective office”.
Elected officials are in a position to make powerful decisions that impact everyone very deeply and it makes sense the process of appointing someone to elected office must be as transparent as possible to avoid undue influence or manipulation in the process. All the deliberations, discussions of the applicants’ ‘pluses and minues’ and the winnowing down of the number of applicants for the final vote that in executive session are unlawful.
Upon reentering open session Main instructed the committee to vote saying, “having thoroughly discussed now will you fill out your ballots”. [transcript below] The final vote tally was five for Messerle and four for Mark Hodgins.
In response to concerns sent to Main and Parry that the violations may cloud the appointment of Fred Messerle, Main replied by email, “I will turn your request over to counsel, Oubouh White”. Parry has not responded.
A casual poll of the audience attending the interviews showed opinions varied widely amongst the seven applicants and whatever transpired during the thirty minutes of executive session to narrow it down to two has wrongfully been hidden from the public.
Channel 14 cameras were turned off during the closed session but audio recordings of the deliberations should have continued through the closed session and must now be made available to the public. The public have a right to hear the deliberations and should demand the audio be released immediately.
Fourteen people applied for the position in good faith and deserve the proper legal process be followed. In my opinion, the appointment is now tainted and may even cloud the entire commission moving forward. For this reason I believe the Oregon Government Ethics Commission and the Department of Justice should review this matter before appointing anyone to the Coos County commission and I strongly encourage everyone to write, call or email both offices below as well as the commissioners themselves and our local district attorney.
A brief executive session was held during the February 16 meeting. Gail Elber and I both sat in as members of the media. In keeping with Haggerty’s warnings, the brief session was only held to establish criteria or process. There was no deliberation regarding the applicants. Elber was also present during the May 10 executive session but so far The World has not reported on the unlawful deliberations.
Participating in executive sessions as a member of the media is a double edged sword. My preference is not to attend not only because they are typically boring, (although Tuesday’s would not have been), but they also limit, in my opinion, my ability to blog about certain topics. For that reason I typically avoid them, however, if I had been present when Main was calling for a closed session I would have reminded him of Haggerty’s strong admonitions. (Doing so would fall outside typical journalist behavior, hence the freedom of being a citizen blogger).
Getting back to The World. Recent editorials have demonstrated a great deal of enmity toward Bob Main and I frequently find myself defending him. In this case, however, the paper would have something newsworthy and genuinely critical to report about him unless they are so pleased with the selection of Fred Messerle they prefer not to rock the boat.
Contact information for OGEC
3218 Pringle Rd. SE, Suite 220
Salem, OR 97302-1544
ogec.mail@state.or.us
Phone: 503-378-5105
Fax: 503-373-1456
(naturally govt ethics is not a top legislative priority so the office is suffering from budget cutbacks)
Also contact the
Oregon Department of Justice contact info is –
Mailing address:
Oregon Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
General phone number: (503) 378-4400
Applicable Oregon Statutes
192.660 Executive sessions permitted on certain matters; procedures; news media representatives’ attendance; limits. (1) ORS 192.610 to 192.690 do not prevent the governing body of a public body from holding executive session during a regular, special or emergency meeting, after the presiding officer has identified the authorization under ORS 192.610 to 192.690 for holding the executive session.
(2) The governing body of a public body may hold an executive session:
(a) To consider the employment of a public officer, employee, staff member or individual agent.
(7) The exception granted by subsection (2)(a) of this section does not apply to:
(a) The filling of a vacancy in an elective office.
[partial transcript of May 11, 2011 selection committee meeting]
Bob Main – “Okay, do you want to deliberate any or just vote”.
Pam Hitner (I think) – “If we are going to discuss I would feel more comfortable if the candidates were not here”
Main – “We can go into exec”
Someone – “Yes, lets do that”
Main – “I have to ask everyone to leave”
The room is cleared.
Upon returning to public session
Main – “having thoroughly discussed now will you fill out your ballots”
[partial transcript of February 16, 2011 candidate interviews]
Bob Main – And now the committee has to decide if they want to go into exec to discuss things or if they want to discuss in open session what their thoughts were before they come to a decision.
Nikki – I don’t think they can, you better get advice from counsel.
Main – Counsel are you listening? I asked the committee whether they want to go into exec just to discuss points and then they could come back and make the decision in public or they can just discuss the points here in open session.
Haggerty – if the discussion has to do with the criteria and understanding of the criteria you are going to be applying to the decision, yes you can use executive session because that’s part of what we discussed in executive session on Monday which is under 192.662 (f) you can consider things or information that is otherwise exempt under public records and that material would be exempt under 192.501. If you want to go into exec for purposes of deliberation then I do not know of any authorization under public meeting laws that would authorize executive session.
Main – So what’s your pleasure committee?
Committee member Steve Kridelbaugh – Could we go into executive session and each person just this is my thoughts and so forth and the next person say the same thing?
Haggerty – No. That would be deliberation. If you want to discuss the criteria, uh, such as how are we going to score this? What do we take into consideration in making the decision? Such as the criteria themselves, then yes you can do that.
Whitty (barely audible) – Why don’t we do a vote and narrow it down …?
Main – I thought they would want to talk about it … all the pluses and minuses of each candidate.
Peabody – I would be comfortable with a short executive session for process then come back and talk about anything we need to talk about. But I would like to get the process thing out of the way.
Haggerty – As long as it is process and criteria, yes that is authorized.
general chit chat back and forth
Kridelbaugh – Can I ask counsel a question? Is this because this is an elected position that we can’t go into executive session?
Haggerty – Basically, yes.
Kridelbaugh – Let’s say if we were hiring the director of a business office (inaudible)
Haggerty – Then you could go into executive session under 192.662 A by 2A there is another subsection of the statute that says that exemption is not applicable when you are filling an elected position.
Kridelbaugh – Okay, thank you.
Haggerty’s advice is still available online at Coos Media Center “FINAL Coos COMMISSIONER SELECTION Interviews, Video 3 of 3. – ALLEN “CAM” PARRY SELECTED – Wed., Feb.16, 2011″ at approximately 1:01:30
There has been much speculation about Haggerty’s absence, like maybe she was pushed out. We may never know the real reason.
One thing is for sure, she would not likely have allowed these serious breaches to occur.
I think everyone should wonder where Counsel Haggerty is…why she is gone. Her counsel was not wanted? hmmm
Yes, the rules do apply to Coos County – or at least they are supposed to.
When I was growing up, in a very small rural town, we had a local paper who covered each and every public meeting.
THAT is gone. Our local paper is nothing more than a stenographer for those he perceives are “the movers and shakers of this county”.
I find it shameful that a private citizen, in fact several of them have to do the job a REAL newspaper editor should WANT to cover. He is no newsman, he’s a lemming. The World is an embarrasment to what could be a NEWSpaper.
This is much like using contaminated evidence in a murder trial. The judge may allow it, the jury may see it as no big problem, etc… but it lays the basis for an appeal.
Personally, if Bob and Cam want to nullify the findings of the committee and just appoint Messerle directly, I would see that as more honest. Definitely, we have a right to hear what went on in those deliberations.
The public will learn about both commissioners by what was said.
If the World covers the subject some day, and Clark with an agenda different from most citizens in thisi county and Jim from Squim may never do do, please tell the people where Haggery is these days and why and if she will return. Surprise that Main who is perfect in every way would not recall counsels prior advice – or follow counsels prior advice. I do not expect my nose will break if Main stops rapidly Parry to know all Oregon law as a recent transplant but to seek counsel if there is doubt. If enough folks write as suggested, both may get a slap on the wrist. But I believe, after reading various ORS, that there is no cause for I need a slaughterhouse upwind of Geddry’s home Messerle to be replaced as the commissioners selected candidate. It all gives good reason – again – to change county government to a county manager and volunteer elected commissioners – while saving hundreds of thousands of taxpayer dollars doing so.