Key Practice Areas
General Counsel
Although it isn’t required and some very small organizations have limited funds for it, every local government entity should have a continuing relationship with an attorney who understands Oregon law as it applies to public entities and is familiar with the kind of work your organization does. Your general counsel should feel like a trusted member of the team.
The primary roles of a general counsel are to advise the governing board and staff on what the law requires with respect to policy decisions and daily operations, and to craft legally compliant documents – e.g., contracts, ordinances, policies, leases, purchase and sale agreements – that protect the organization from legal risk as much as possible.
Some local governments, such as counties and larger cities, have in-house general counsel. The vast majority of cities and special districts, however, contract with an attorney or firm to provide legal services as needed. Most have one attorney or firm to provide general counsel. Larger entities with more complex needs may supplement their general counsel with other attorneys for specific legal matters, such as employment law, water law, union negotiations, or litigation.
Public Contracting
Requirements for public contracts vary depending on the type (construction, procurement, professional services) and by the cost and complexity of the project.
All public entities in Oregon are required to comply with the Oregon Public Contracting Code [ORS chapters 279A, 279B, and 279C] and related administrative rules.
Every public contracting agency in Oregon is also required to adopt its own local public contracting rules (“Local Rules”), or the Oregon Attorney General’s Model Public Contracting Rules [OAR Chapter 137, Divisions 44 through 49] will apply by default.
This area of law is complex, and tripwires abound for the unwary. In most cases your organization’s liability coverage does not cover contract-related legal claims, so it’s wise to seek advice early to avoid potentially expensive future problems.
[See article, “When to Consult with Your Lawyer: Public Contracting”]
Public Records
Managing public records effectively is an integral part of establishing trust with your community and support for the work you do. It supports Oregon’s commitment to transparency in government while still protecting rights to privacy or confidentiality when appropriate.
All public entities in Oregon are required to comply with Oregon’s public records laws [ORS 192.001 to 192.607]. These laws establish the public’s rights to review and inspect public records, and the public entity’s rights and obligations around disclosing them. They also specify when public records may be exempt from disclosure under specific circumstances.
Every public entity is required to have an adopted public records policy that meets the minimum requirements of ORS 192.324(7). At least one person in your organization should be trained on the specifics of these laws, including requirements for storing and archiving public records.
Public Meetings
Public meetings are arguably the single most important way for a public entity to engage with its voters and customers. In doing so, it’s important to remember that a public meeting is NOT a meeting of the public; it is a business meeting of the governing board. The public has the right to attend public meetings and to listen to what is being discussed, but the governing board is there to transact business on behalf of the organization. The board may -- and in many cases should -- solicit and accept public input, but public input is not mandatory at a regular business meeting and it falls to the board to manage this input respectfully, and in a way that does not disrupt or derail the business at hand.
Oregon’s public meetings laws [ORS 192.610 to 192.695] apply to all elected boards and committees in Oregon, and to many appointed ones. Every special district board of directors, city council, county commission, and state agency is subject to these laws.
The laws explain what constitutes a public meeting; what constitutes a quorum; and how many votes are needed to approve something. They describe requirements for the meeting location itself. Importantly, they also set out the specific reasons when an executive session of the board may be convened outside of public earshot.
[See article: “When to Consult with Your Lawyer: Public Meetings”]
Board Governance
In Oregon, local elected officials are unpaid volunteers who, presumably, run for office because they value the work of the organization they seek to represent and want to be a part of shaping or sustaining it. At its best, serving on a local government board is a noble undertaking that strengthens the fabric of the local community.
Each member of the board has a fiduciary duty to act in the best interests of the organization. The most effective governing boards educate themselves on the matter at hand and what the law requires; listen respectfully to the views of all members and staff; and passionately but respectfully express their own positions. They embrace the collaborative process and consider diverging points of view. Finally, they accept that in a democratic system a majority gets to decide, and not everyone may get what they want all of the time.
[See article: “When to Consult with Your Lawyer: Public Meetings”]
Ethics for Public Officials
Oregon’s ethics laws for public officials [ORS chapter 244] are primarily concerned with making sure public officials, their families, and their businesses don’t reap personal profit from the public official’s position or succumb to financial pressures to take particular actions.
Ethics laws instruct elected officials on how to determine if they have a financial conflict of interest in matters that come before them, and how to properly disclose these conflicts to support transparency and integrity in government. Violations of Oregon’s ethics laws are personal to the public official, meaning that the organization they represent, or their insurance carrier, may not indemnify or defend the accused public official or provide legal counsel for him or her.
The Oregon Ethics Commission is charged with interpreting and enforcing these laws, including assessing penalties for violations. Violations of Oregon’s public meetings laws as they apply to executive sessions are also addressed under these laws.
Elections
Oregon has four regular election dates each year: March, May (primary), September, and November (general). In addition to choosing their state legislators, Oregon voters choose county commissioners, city councilors, and special district boards of directors by election. They also decide state and local initiatives and referenda; specific local matters such as creation of new taxing districts and local government boundary changes (annexation, merger, consolidation, or dissolution); and whether to approve (or disapprove) property tax measures.
Eligibility for public office is largely determined by the Oregon Constitution and by Oregon statute, and to a limited degree by city charter and each special district’s enabling statute.
The Oregon Secretary of State, Elections Division, oversees statewide elections and establishes rules and standardized procedures for local elections. City elections are usually administered by the city recorder. County elections are administered by the county clerk. Special district elections also are administered by the county clerk in the county where the district is located.
Boundary Changes
Though creation of new cities in Oregon is rare, Oregon laws set out procedures for creating new cities [ORS chapter 221]. Existing cities can change in size through annexation or withdrawal of territory, and can merge or consolidate with other cities. Boundary change procedures for cities are addressed in ORS chapter 222.
Like cities, special districts may add territory through annexation of additional property; lose territory through withdrawal or due to annexation by a city; or merge or consolidate with another special district providing the same or similar services. With some exceptions, local government boundary changes must be approved by voters within the affected territory or territories.
Creation of new special districts is, comparatively speaking, fairly common. Procedures for creating a new special district are very detailed and must clear multiple procedural hoops. The county commission of the county where the district is located oversees the district formation process, including an election if necessary, but the majority of the legwork ahead of time is done by citizen volunteers, ideally with guidance from an experienced attorney.
[See article: “When to Consult with Your Lawyer: Boundary Changes”]
Continuing Education and Training
Oregon has dozens of cities and hundreds of special districts, each of which is governed by an elected group of volunteers. Many come to the position with little to no experience working with or for a public entity. This doesn’t have to be an obstacle. A willingness to learn is all that is required. However, there can be a long learning curve to becoming familiar with Oregon laws generally, not to mention laws and regulations as they apply to specific types of entities. These laws are also subject to change, so learning is an ongoing process.
Eileen Eakins is frequently invited to provide education and training to elected officials and staff through professional organizations and to individual clients. Costs of sessions vary, depending on the length and location of the program. Collaborating with other local governments to hold joint training sessions is a common approach to sharing costs.
Other education and training resources include professional associations for local governments, such as the League of Oregon Cities (LOC); the Special Districts Association of Oregon (SDAO); the Oregon Public Ports Association (OPPA); the Oregon Fire District Directors Association (OFDDA); the Oregon Fire Chiefs Association (OFCA); the Oregon Association of Conservation Districts (OACD); and the Oregon Association of Water Utilities (OAWU). The Oregon Department of Revenue offers regular training on Local Budget Law requirements, and the Oregon Ethics Commission provides training – usually upon request – on Oregon’s Ethics Laws for Public Officials.
Your organization’s liability insurance carrier may also be able to suggest training resources, or help finance a program that will help you manage and prevent risks that could result in a liability claim.