The Oregon Government Ethics Commission is launching an investigation into whether or not St. Helens City Council violated Oregon Public Meetings law when it held an executive session meeting on May 21 in Portland that covered topics which may have been outside statutory provisions, according to the commission’s preliminary review report released Thursday, Oct. 3.
Previously, the Ethics Commission began a preliminary review regarding a complaint Councilor Stephen Topaz filed on Aug. 23 of this year. The complaint brings up two points: that the meeting was held outside city limits – a “no-no” per Oregon Public Meetings law 192.630, section 4 – and that the discussion fell outside the realm of acceptable legal purposes for an executive session, stated as ORS 192.660 (2)(e) Real Property Transactions and ORS 192.660(2)(h) Consult with Counsel/Potential Litigation.
However, City Administrator John Walsh noted during the council’s Oct. 2 work session that a discussion city staff had with an ethics committee representative revealed that if the city had held the meeting as a workshop, no violations would have occurred.
“I don’t think it’s a negative thing,” Walsh said about the conclusions of the report. “I think it’s a positive thing. It’s kind of a learning opportunity for all of us.”
In any case, the ethics commission has decided to open an investigation regarding two possible public meetings law violations from the conclusion of their preliminary review.
The meeting and possible violations
The May 21 closed session meeting took place at the office of environmental engineering and consulting firm Maul Foster Alongi, in Portland. In his complaint, Topaz mentions the meeting covered “efforts to repurpose the St. Helens secondary wastewater lagoon for use as a solid waste landfill” and that the closed session “had nothing to do with real estate transactions.”
Topaz also claimed the council violated public meetings law when it held the executive session outside of the geographical boundaries of St. Helens. However, the Ethics Commission stated in its report that it has not determined the location of the meeting to be a potential violation.
“The statute addressing meeting locations is not part of the executive session provisions of Oregon Public Meetings law and is not within the jurisdiction of the Commission,” the report states.
Agenda and PowerPoint topics from the meeting are also listed in the report. The agenda lists a project update, financial projections and governance models. PowerPoint slides show the meeting covered subjects like “Fill Capacity, Disposal Demand,” “Net Present Value,” and “Safety and Environmental Benefit” among other topics. None of the topics mention the purchase of property or current or pending litigation.
The commission will determine in their investigation whether the meeting’s topics were abiding by those statutory provisions, or if matters discussed were not relevant.
The investigation and potential penalties
For the remaining two violations – whether or not the council veered outside the territory of Real Property Transactions and Potential Litigation, the Ethics Commission report definitively concludes the matters warrant further investigation.
Regarding Real Property Transactions, the commission states:
“The City Council was not actually conducting deliberations with someone designated to negotiate a real property transaction for the City, as required by ORS 192.660(2)(e).”
The report continues:
“Instead, the purpose of the meeting appears to have been an informational workshop to educate the Councilors on various aspects of the possible project, such as a public relations campaign or governance models,” the report states.
Regarding Potential Litigation, the report from the commission also states the meeting does not abide by the provision:
“It does not appear that there is any current or pending litigation involving this property or the proposed project,” the report states. The report goes on to say that while an attorney was present, the commission will need to further investigate whether the attorney was representing the city, Maul Foster Alongi, or both, as well as whether the attorney was giving legal counsel in regard to any current or pending litigation.
According to the Oregon Government Ethics Commission, it will take 180 days, or six months to complete the investigation. At the end of that period the commission will write another report that will then be reviewed, which will either dismiss the matter or make a preliminary finding of violation.
If a violation is found, the general penalty is $1,000 per violation, although according to the Commission, cases usually settle for less than the maximum penalty allowed. For first violations, the governing body might receive a letter of education to better inform them on what they can and cannot do in executive session, although that depends on what is discovered during the investigation.
During the investigation, the commission will obtain appropriate records, notes, any audio or video recordings of the meeting, look at meeting minutes and interview any people involved.
The commission has not yet determined any violations and has only been in preliminary review regarding Topaz’s complaint. Now that the commission has concluded its preliminary review and opened an investigation, the commission can look at the situation in more detail.
The lagoon repurposing project
The city has been pursuing a repurposing of its wastewater lagoon for several years as part of its Waterfront Redevelopment Project, in the hopes of making more land available for community use. The concept involves emptying the lagoon and filling it with non-hazardous dredged sediments from the Portland Harbor Superfund Site, as well as other sites. According to an EPA comment letter written by the city from 2016, the use of the site as a sediment disposal facility would generate revenue for the city, which will be used to cover redevelopment costs as well as other services. Another memo from the city states the projected revenue of $95 million after costs of filling the lagoon are accounted for.
In January, the city received $500,000 from the Oregon Department of State Lands to assist in paying for a feasibility study to repurpose the lagoon. In May, the city approved a $500,000 contract with Maul Foster Alongi to conduct a feasibility study regarding the repurposing project.
Next to the lagoon is a wastewater treatment facility, which the city is still determining whether or not would need to be relocated if lagoon repurposing occurs.
The city’s take
The labeling of the meeting as an executive session, rather than as a workshop, was due to what Walsh called an “overabundance of caution” regarding what he described as sensitive Waterfront Redevelopment matters.
In wanting to show government transparency, the city scheduled the meeting as an executive session, when it would have been more appropriate to call it a workshop, Walsh explained at the meeting.
“We could have just done it as a workshop or a training and not given any notice at all,” Walsh said, summarizing what he was told from an ethics commission representative.
The Oregon Government Ethics Commission will release their findings, and any potential violations, in six months.
Follow this developing story both online at thechronicleonline.com and in Wednesday’s print edition.