Category Archive: Claims against Government

  1. City of Portland Violated Public Records Law by Overcharging Requesters. 

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    Yesterday, Judge Shelley Russell held Portland’s method for determining fees to produce public records violates public records law because it does not refund overcharges.  Here’s the opinion and order.

    The court found Portland provides an estimate based on the worst case scenario – the most it would cost to comply.  The city requires more money when it underestimates the actual cost.  But what does the city do when it collects more than the actual cost?  What then?  The city pockets the excess.  That’s illegal, and the court ordered the city to stop doing that.

    Once again, it was an attorney who served as a plaintiff, Alan Kessler, who worked with Charlie Gee.  A non-lawyer neighborhood activist or member of the Press cannot take on these battles because they do not have the resources to mount legal challenges.  Thank you and congratulations to both of them.

    Take away number 1 – other claimants out there?

    With this ruling, everyone else who paid an estimate and was not asked to pay more MIGHT have a claim against the city because there’s a reasonable chance they overpaid and never received a refund.

    Take away number 2 – ethics?

    Perhaps the city needs to reconsider its overall ethics.  In the Oregon Department of Justice under Dave Frohnmayer, I was taught public attorneys need to play it straight:  follow the law and produce the records if the law requires it, even if production is contrary to the client’s litigation or other interest.  My sense is the in-house lawyers at the City of Portland view their role differently: as advocates for the goals-du-jour of their client contacts.  If true, I believe that is not the proper ethical standard for that office.

    Jeff Merrick, Attorney.

    © 2019 by Jeff Merrick.  This is not intended as legal advice.  Unless we have a contract, I am not acting as your lawyer.

  2. The Bialostosky v. Teri Cummings public records case is a misfire, not a precedent


    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

  3. Oregon Public Bodies are NOT above Oregon law Protecting Whistle Blowers.

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    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.

    Jeff Merrick, Oregon Litigation Attorney
    I help people with claims against government.
    ©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.
  4. Domicile known. Deaths in “low-barrier” housing add to questions about homeless policy.


    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

  5. Replicating Failed Policy of Mass Shelters Perpetuates Human Suffering and Kills Neighborhoods.

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    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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  6. “Leaders” continue to dodge good ideas from concerned citizens.

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    On July 31, I was pleased to participate in the meeting of citizens concerned about the proposed low-barrier homeless shelter across the street from a schoolhouse on SE Foster.  Although South East Allied Communities invited public officials, no public official attended or sent a representative.

    Officials continue their approach of not wanting public input that might offer insights not raised behind closed doors by the usual suspects or at steering committee meetings of people hand-picked by officials.  Continued inbreeding only spawns more of the same policy that has caused Oregon to rank 49 of 51 (states plus District of Columbia) in sheltering homeless.

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