WE DODGED THE BULLET, BUT. . .
By Attorney Jack
December 2, 2013
Grants Pass, Oregon: -Election day was a great victory. A package of ordinances designed and crafted to establish an entirely new and overbearing level of government bureaucracy was soundly defeated. Our commissioners attempted to sneak this package into law under cover of very fine sounding titles. We exposed them. Our commissioners lied to us about what was in their proposed ordinances. We exposed their lies. Our commissioners lied to us about the need for the ordinances. We exposed their lies.
Commissioner Walker said there would be no referendum. We forced a referendum. Commissioner Walker said there would be no Voter’s Pamphlet. We forced a Voter’s Pamphlet and we voiced our arguments when it was published. At the end of the day, the voters themselves were asked to approve the ordinances. 50% of the voters declined to do so. 40% took the extra step of voting “No” to them. Only 10% voted for them. This was a stunning demonstration of how locally controlled representative government can work. But we haven’t fixed anything. We have simply dodged a very large caliber bullet.
Josephine County went through the same experience with these same ordinances back in 1989, with the same result. According to Commissioner Heck these ordinances have been laying around in County Counsel’s office for ten years.
We have placed them back on the shelf, but who is to say we will not see them again? Who is to say that these commissioners might not attempt the same package next year, with slight editorial modification? They almost got away with it this time. Who is to say we will be so lucky the next time around? We need to fix the problem so that it will never happen again.
This is not simply a matter of changing commissioners. That would be an issue of punishment. Our concern should be prevention. We need to be certain that this will never happen again. We are dealing with a defect in our laws. That is what we need to change. This is an issue of transparency in government and it is now clear that we have problems in the open meeting requirement in our County Charter.
Section 13 of the charter requires all ordinances to be read fully and distinctly in open meeting at least twice prior to adoption, which is a good thing. However, subsection (5) therein contains an exception which makes the public reading nothing more than a matter of the commissioners’ discretion. That needs to be changed.
There was another lesson we learned from this experience. When an ordinance has been adopted by way of referendum to the voters, that ordinance should only be repealed or replaced by a subsequent referendum to the voters. Three individuals, elected commissioners or not, should not have the power to arbitrarily over-ride the will of the people. This would require the simple addition of another subsection to Section 13.
These steps would be easy and are absolutely necessary. But a far more insidious evil has been exposed in this experience which is also all about transparency. One must wonder how it came to pass that our commissioners discussed and formulated these ordinances in secret without violating the open meeting laws. The answer is the executive session.
According to their agendas, this scheme was cooked up in executive session with County Counsel on January 17. Under our present pattern of operation, whenever County Counsel is involved in a session, that meeting and its discussions are secret. Where a meeting with counsel involves County litigation, that secrecy is appropriate. There is an issue of attorney-client privilege and such secrecy is absolutely necessary for effective litigation. However, all conversation and consultation with County Counsel does not involve litigation protected attorneyclient privilege.
As part of the legislative process all responsible legislators seek legal evaluation regarding their proposed legislation. That, however and the reports they receive are properly public because the legislative process is not a privileged relationship.
This experience teaches us that the executive session privilege can be abused. One cannot propose and design proposed legislation in executive session and have legally required transparency in the process. We need to fundamentally change our County Charter to guarantee this will never happen again.
That can be accomplished in two steps. We need another subsection to Section 13 prohibiting the discussion of proposed legislation in executive session. And while we are at it, we ought to also prohibit County and union contract negotiations in executive session. We have learned that the terms of union contracts, particularly as to retirement benefits, can have long term fiscal impacts.
Likewise, the only escape from a contractual obligation is in bankruptcy which a government entity in Oregon is not allowed to use. Union contract obligations are forever and their negotiation should be in public.
The key problem, however, in this regard is the status of County Counsel as an elected officer. Section 19 of the County Charter needs to be amended to eliminate County Counsel. The officer does not function as a traditional representative of the people. His or her actions are not public. No one knows what he or she may be doing. There is no accountability.
Under the present arrangement accountability in the attorney-client relationship is a giant question of who is working for whom. Does County Counsel work for some vague and amorphous county? Does he or she work for the commissioners? Who is his or her client? Most insidious of all is the question of who is accountable to whom? Are the commissioners accountable to our elected County Counsel? If so, the office is essentially that of County Czar.
These ambiguities also introduce an element of conflict of interest. If a commissioner undertakes an illegal action, is it County Counsel’s job to defend him? Or is there a duty to restrain him?
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All of these ambiguities would be eliminated if the County’s legal counsel were a position hired by the Board of County Commissioners. Most important, as an agency of the County, if County’s legal counsel felt there were a need for new legislation, he or she would bring their proposals before the Board in the same manner used by other County agencies - in public meeting. In the present scheme, he or she operates behind a veil of secrecy as we have just seen. County Counsel, as an elected office, needs to go away.
We were incredibly effective in our use of the referendum as to these ordinances. We should take the same talent and experience and address that to the initiative process. We need to change the County Charter so this particular scheme will never befall us again. And we need to do it now while the experience is fresh in our minds.
© 2013 Jack Swift - All Rights Reserved
Jack Swift is an retired attorney.
Actively involved in the Republican Party and local politics, Jack would
love to see honest Constitution following representatives in local Josephine
County government. Jack believes if we are to save America from the grip
of evil, people must get involved on the local level and expose wrongdoers
at every opportunity. He is putting that belief in practice.