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A writing in the possession of an elected official that contains information relating to the conduct of the public’s business is a “public record.”  Period.  Journalists are dismayed at a ruling that seems contrary to this law.  Never fear.  The trial court order in Bialostosky v. Teri Cummings is not a valid precedent because the well-meaning teenager who presented the case did not give the trial judge the record he needed to rule correctly.

The law is clear.

A  “‘Public record’ includes any writing that contains information relating to the conduct of the public’s business[.]” ORS 192.411(5)(a).  Even if the writing is on a “privately owned computer” it can be a public record subject to disclosure if it relates to the conduct of the  public’s business.  ORS 192.411(5)(b).

The allegations and argument were faulty.

The people of West Linn elected Theresa Cummings to serve as a city councilor.  She kept notes during public meetings, allegedly relating to the conduct of the public’s business.  Mr. Bialostosky asked the  City of West Linn to produce her notebook.  “They are not our records,” said the city.

Then, Mr. Bialostosky requested the notes directly from Councilor Cummings, and she did not provide them.

Mr. Bialostosky sued.  In every lawsuit, the Complaint defines the issues on which the court may provide relief.  The Amended Complaint asked the court to declare “that Ms. Cummings as an elected official is a public body who is subject to Oregon Public Records Laws[.] (Para. 17).  At argument Mr. Bialostosky “conceded” that the definition of “public body” was “critical to his assertion that the notebook is a ‘public record.’”

Some people view the role of a trial judge to help achieve the right outcome.  Others view the role of a trial judge to resolve the issues put to him or her, without assisting one side or the other make their arguments.  Mr. Bialostosky asked Judge Breithaupt to rule that Councilor Cummings is a public body.  Correctly, he ruled she is not, just as a quarterback is not a football team.

This case is not a precedent for a properly presented case. 

First, unlike appellate opinions, trial court opinions are not binding on any future trial court.

Second, the problem with Bialostosky v. Cummings as a precedent is that Councilor Cummings did not need to be a public body.  Oregon’s Public Records Law provides a two-track appeals system, one for elected officials and another for public bodies. This case confused the two tracks.

Third, although Judge Breithaupt’s holding may have been a proper resolution of the flawed case in front of him, the holding is WRONG as a statement of general law. He held, “the notebook was not, as required by the definition contained in ORS 192.311(5)(a), ‘prepared, owned, used or retained by the public body.’”

The law, divorced from the specific and flawed record of this case, does not require the record be prepared, owned, used or retained by the public body.  The definition follows:

192.311(5)(a) “Public record” includes any writing that contains information relating to the conduct of the public’s business, including but not limited to court records, mortgages, and deed records, prepared, owned, used or retained by a public body regardless of physical form or characteristics.

(b) “Public record” does not include any writing that does not relate to the conduct of the public’s business and that is contained on a privately owned computer.

The plain language does not “require” the documents be “used or retained by the public body.” That is merely one example of records that “contain information relating to the conduct of the public’s business.”

Other records – including those in the hands of elected officials – that contain information relating to the conduct of the public’s business may be public records subject to disclosure to any person.

THAT is the law.

Jeff Merrick, Oregon Litigation Attorney

Helping people with claims against government, including public records.

©2019 by Merrick Law, LLC. and Jeff Merrick

Oregon State Police arrested 54-year-old Roseburg attorney Sean Michael Handlery on 56 charges.  They included luring a minor, rape, sodomy, sex abuse and others.  That was January 2018.  In May 2019, the Oregon State Bar disbarred Mr. Handlery, citing twelve indictments plus bad conduct in the practice of law, too.

The other bad conduct (“Besides that Mrs. Lincoln, how was the play”) included failing to correct false statements to the court, encouraging a client to lie and taking an employment law case when he did not know enough and about employment law and did not educate himself after accepting the case.

When hiring and working with a lawyer, people need to do their research and trust their gut.  If something feels off, keep shopping for anther lawyer; there are thousands of us.

©2019 by Merrick Law, LLC. and Jeff Merrick. The above is not intended as legal advice. It is for general information purposes only. Reading it or attempting to contact me does not mean I am your attorney. I only represent people after we sign a written contract.

Today, Oregon’s Supreme Court held that even if the decisionmaker who fired an employee is not biased, the company may be liable for discrimination or retaliation if a biased supervisor influenced or was involved in the termination.

In Ossanna v. Nike, Inc., Douglas Ossanna had complained about safety issues.  Electricians in the apprenticeship programs were not properly supervised, he said, and caused of electrocutions.  He went through the chain of command, but he saw no action to fix the problems.  Worse, he felt his supervisors took away his chances for advancement because of this complaints.  Later, he was fired, allegedly for using the gym when he was called in during the holidays to open the facility for some other workers.

Nike delegated firing authority to a person NOT in the chain of command.  That person talked to the supervisor but did not interview Mr. Ossanna.  Hmm. . . .

At trial, Mr. Ossanna asked the judge to instruct the jury that if the supervisor were biased, and his bias tainted the decision  — “influenced, affected or was involved in the adverse employment decision against plaintiff”– then the jury may find unlawful bias factored into the decision to fire him.  The trial judge refused to read jury instruction on what’s called “cat’s paw.”  Oregon’s Supreme Court said the judge should have read the instruction.

We call the legal theory “cat’s paw” because a judge who used it in 1990 referred to an old fable:  A monkey gets a cat to pull roasting chestnuts from the fire.  Then, the monkey takes the chestnuts, and the cat is left with burned paws.  Since then, the legal community uses “cat’s paw” to mean one person using another person to accomplish his or her purpose.

Another cat’s paw example is a supervisor at a fast food restaurant is propositioning a subordinate.  When the subordinate does not submit, the supervisor goes to the owner and gets her fired for some other reason, like showing up late one day.  The owner might not even know that the supervisor was harassing the subordinate.  In fact, the owner’s true motive was not to punish the subordinate for refusing to submit to the supervisor’s sexual demands.  Yet, that was the real reason she was fired.  The cat’s paw fills that gap.

Ossanna v. Nike, Inc. officially fills that gap for employment discrimination and retaliation claims in Oregon.

Oregon public employers are subject to Oregon laws protecting employees, confirmed the Oregon Court of Appeals last week in Burley v. Clackamas County.

Galina Burley sued her employer, Clackamas County.  She alleged it retaliated against her for reporting the county improperly used federal grant money.  A jury agreed and awarded her $386,916.  The county said, “Not so fast, we don’t think the law applies to us.”

One of the laws in question makes it unlawful for an “employer” to retaliate “for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.”  ORS 659A.199.  The employee can be wrong about whether the employer broke the law. The employee must only have a good faith belief the employer violated the law.

The county argued “employer” means private employer only, not public employer.  It pointed to some words in the legislative history suggesting private employees needed this protection.  But the court of appeals said, Read the dang statutes; they’re clear as can be.

ORS 659A.001 defines “Employer” as “any person” in the state who engages or uses the personal service of one or more employees.  It then defines “person” to include “public body.”  Game over.  Pay the woman.  And now, pay her the additional tens of thousands it cost for the appeal.

Whether one likes it or not, Oregon public employers must follow state laws that protect whistleblowers.  According to Burley v. Clackamas County, they must follow ALL other employment laws under that whole chapter of the statutes (ORS 659A), which controls so many of the rights of employees.

Attorney Gregory Knudsen of Wyoming wanted sex with his client at the same time he represented the married woman in her divorce proceeding.  He got what he wanted, and her husband complained to the bar.

The state bar confronted Mr. Knudsen.  Sex with client?  No, we dated but not when she was my client, he said.  Apparently, the bar did not believe him. They actually had law enforcement execute a search warrant. (I wish Oregon officials would be that aggressive.) They found 11,000 texts and GIFs. Afterwards, Mr. Knudsen admitted wrongdoing.

The “non-lawyerly” texts scared the woman.  She was afraid her husband would find them.  Attorney Knudsen encouraged her to delete the texts.  In other words, the attorney asked her to destroy potential evidence that might have pertained to the divorce case.  Another big no-no for an attorney.

More details on the facts are found in the court’s decision.

Oregon, too, prohibits a lawyer from having sexual relations with a current client unless a consensual sexual relationship existed before the lawyer-client relationship.

Oregon defines “sexual relations” and “lawyer.”

“’Sexual relations’ means sexual intercourse or any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the lawyer for the purpose of arousing or gratifying the sexual desire of either party.”

“Lawyer” means the lawyer working on or assisting with the case.  That gives a pass to other lawyers working in the law firm not working on the case.  Attorneys may touch the file or touch the firm’s client, but not both.

After the attorney client relationship ends, then the attorney and former client may act as any consenting adults.

Which reminds me of an infamous 1992 case in which an Oregon attorney celebrated a big settlement on behalf of a sixteen-year-old by providing her alcohol and sex in a limousine.  The grand jury indicted him for three crimes: contributing to the sexual delinquency of a minor, sexual abuse in the third degree and furnishing alcohol to a minor. Although never convicted, the attorney lost his license for 18 months.  I suspect such conduct would net a stiffer penalty in 2019.

The bottom line:  There are consequences when attorneys cross that line with clients from professional to sexual.

Bud Clark Commons housed 259 previously homeless people between January 1, 2015 and December 31, 2018.  Thirty-eight of them died there.  That’s nearly 15%.  Police dispatch records reveal 872 calls for service to its address: 15 for some of the deaths plus for numerous disturbances, some “with weapons,” thefts, assaults and many other reasons between January 2015 and July 2018.  Is Bud Clark Commons a feel-good model that taxpayers should replicate?  Or is it time to steal best practices used by other cities?

The Housing Authority of Portland, doing business as  “Home Forward,” manages Bud Clark Commons. It provides 130 apartments, including for people suffering from addiction.  “Low-barrier” housing or shelters means we expect little from guests, and they are free to continue suffering from addiction.  Housing first is the best approach for helping people because treatment is more likely to work if people have stable housing.  However, the type and location of housing is very important.  Bud Clark Commons is within walking distance of drug-selling predators in Portland’s last open drug market.  Residents may walk a couple of blocks, get their drugs, come home and die in their own apartments.  The public records did not indicate how many of the the 38 deaths were from overdoses or conditions exacerbated by drugs.

In the mid-20th century, housing authorities built projects in which they placed together low-income and welfare-dependent people.  We learned “the projects” are not the most fertile places for success.  The opposite is true.  Yet, here we are in 2019 continuing to provide mass shelters or housing where we group together service-dependent and drug-dependent people.  Successful cities find and create better housing options.

In 2017, Multnomah County reported 4,177 homeless people on its point-in-time census.  Multnomah County also reported 79 deaths of homeless people in its report entitled “Domicile Unknown.”  That’s about 1.9%, which is about twice the death rate for Portland.

Chair Kafoury and homeless advocates use the annual “Domicile Unknown” report to argue we must build more shelters or projects.  Every citizen knows we have problems.  The report merely inflames the debate, distracting from the real question of whether the approach pursued by Chair Kafoury and Mayor Wheeler is the best one.

It cost us $253,000 per studio apartment to build Bud Clark Commons in 2011.  I do not know much it costs to operate.  Other jurisdictions found success reducing the numbers of unsheltered people by starting with audits:  Are we getting good results for the dollars spent?  Then, they re-direct money to more effective strategies.  Meanwhile, we in Oregon uncritically do more of the same, resulting in our dismal rankings among states plus the District of Columbia.  Oregon ranks 51 out of 51 for sheltering families with children, 49 of 51 for veterans, 47 of 51 for unaccompanied youth, and 50/51 homeless, cumulatively.

Our leaders need to do more than appear at ground-breaking photo / video-ops and brag about spending more money every time they expand a service-dependent ghetto or seed a new one.  They should audit existing programs, listen to neighbors and adopt best practices in a transparent process.

Jeff Merrick

On October 15, 2018, I asked the Press for help alerting any other victims of Lori Deveny.  People had contacted me to sue Ms. Deveny because I market myself to sue other lawyers.  They told me she was still stringing them along with promises they would get their money, one day, as if she were still authorized to practice law.  If anyone else were still waiting for money from Ms. Deveny, they needed to know her current status with the bar, I believed.  I thought a lawsuit could be newsworthy and might alert others.

I considered lawsuits alleging fraud, conversion, breach of fiduciary duty, legal malpractice or other claims.  But, I did not feel it was in the best interests of the people who contacted me to file suit.  Nevertheless, I believed I needed to something in case other people believed she was still acting as their lawyer.   I contacted the Oregon State Bar, and I got the impression they felt they were doing all they could – which I did not believe was enough.  So, I contacted Nigel Jaquiss to see if the Willamette Week might be interested in the story.

Today, Ms. Del Savio and Willamette Week published their story on her.  Thank you to Anna Del Savio, Nigel Jaquiss and the editors.

This post offers some thoughts on how to improve Oregon Public Records Law.

Adding Penalties for Intentional and Wrongful Conduct.

When public bodies comply with public records law in good faith, disclosure of public information can be prompt and efficient.  Sometimes, however, the response to public records depends upon whether the public official perceives the requester as friend or foe.  There is no civil or criminal penalty to public officials who intentionally and wrongfully delaying or denying public records request, as other states.  Instead, taxpayers suffer the penalty for such misconduct because taxpayers must pay lawyers to defend the action and pay the legal fees of the requester’s attorneys.  One suggestion is to provide for penalties for the actual person(s) who intentionally and wrongfully delay or deny disclosing public records

Last year, I provided the following suggestions to the Oregon Public Records Advisory Council.

Dear Members of the Public Records Advisory Council,

Thank you for referring me to the Governor.

As you work toward fulfilling the promise of the 2017 reforms, I wanted to share a couple of thoughts before closing my file.

Work with Judicial Department on Court Procedures.

Among your committee’s responsibilities is to identify inefficiencies and inconsistences in the application of public records law and to make recommendations on changes in law, policy or practice that could facilitate rapid dissemination of public records.  Low-hanging fruit for both of the above involve some work with the Judicial Department on procedures for handling court cases.

Delay in resolving disputes can defeat the purpose of a public records request.  One example is the case of ILWU v. Port of Portland, 285 Or App 222 (2017) in which there was a nearly 5-year delay between request and decision.  In my own lawsuit pending against the city of Portland, I requested certain records seven months ago, and there is still no decision on the merits of the City’s exemption claims.   Jeff Merrick v. City of Portland, Multnomah Co. Case No. 17 CV 32008.  [Update:  I won on the merits, and I am appealing the attorney fee decision.]

The PRAC should develop a working group to include members from the Judicial Department to consider: (1) urging trial courts to assign a single judge to handle public records lawsuits to develop expertise, avoid inconsistencies, and to speed the process and (2) an expedited appeal process in the Court of Appeals for some or all public records appeals.

Consider not requiring public bodies to sue citizens to appeal DA decision.

Currently, if a District Attorney decides against the public body, the public body must sue the requester.  Portland Public School’s lawsuit against Kimberly Sordyl gained national attention.  Perhaps you can develop a procedure where the public body may name the District Attorney as the defendant when a citizen is the requester (e.g., PPS vs. Rod Underhill ex. rel. Kimberly Sordyl), with the option for the citizen to substitute if she or he so desires.

Require denial letters to identify the decisionmaker.

People should know who decided to withhold records.  A simple line in every denial letter would suffice.  For example, “Decisionmaker:  the undersigned” or “Decisionmaker:  City Manager Jones” or “Decisionmaker:  Mayor Smith.”

Review HB 3037 (2015).

You may remember the circumstances giving rise to HB 3037.  When a person affiliated with an anti-union organization sought contact information of home health care workers, the public body stalled until the Legislative Assembly could rush through a bill to exempt the information.  Introduced on February 18, 2015, it became effective on April 9, 2015 when Governor Brown signed it.

Section 4 may have created unintended consequences.  At least one public body is attempting to use it to, in effect, overturn decades of court precedents that the legislative history never mentioned or acknowledged.

Conclusion.

I created an Oregon Public Records Law resource at http://www.OregonPublicRecordsLaw.info.  It provides a primer for requesters and for anyone who wants a succinct summary of why and how Oregon’s law evolved over the past four years.

Thank you, again, for your confidence in me, and good luck with the difficult work ahead of you.

Jeff Merrick, Oregon Litigation Attorney

©2018 by Merrick Law, LLC and Jeff Merrick. The above is not intended as legal advice. It is for general information purposes only. Reading it or attempting to contact me does not mean I am your attorney. I only represent people after we sign a written contract.

Today, Secretary of State Richardson filed a proposed rule to make more accessible public information on how his agency spends money.  The financial transparency rule will disclose expenditures monthly.

This is another step toward “transparency by design,” which refers to making public information public, without anyone needing to request public records and waste resources to respond to requests.  The public may comment on the rule, and I urge people to do so.

Oregon adopted many changes intended to improve public records law over the past few years.  (I summarized those changes here).   They included creating a State Chief Information Officer, a Chief Data Officer, The Public Records Advisory Council, and the Public Records Advocate.  Nevertheless, public bodies and elected officials still must decide how transparent they want to be.  They can fight requests, they can keep secrets, or they can make public information publicly available.

I congratulate the Secretary of State for “walking the walk” and moving toward more – and more timely – transparency.

Jeff Merrick

(c) Jeff Merrick and Merrick Law, LLC

Contents

1. Homelessness: Oregon is the Model of Failure.
2. What is our current policy making process.
3. What do successful jurisdictions do differently?
4. What does the past teach us about what works and what does not work?

A. Concentrating service-dependent people creates ghettos that are unhealthful for the people served and for the neighborhood.
B. Mass shelters provide fertile ground for the spread of contagious disease.
C. Work programs work.
D. Open LEADERSHIP founded upon data and performance is critical to success
E. Housing First, NOT Mass Shelters

5. What can mere citizens do?

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