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OUS board violation: "You need evidence of an executive session".

12/20/2011 (Updated frequently at bottom): If you signed on to the complaint to the Oregon Government Ethics commission about the OUS board’s decision to fire President Lariviere without following the public meetings law, you’ve probably received a letter from GEC Director Ron Bersin saying he will not investigate. We’re following up on that, and here’s the email thread so far:

Subject: Re: Complaint
Date: December 14, 2011 9:05:20 AM PST
To: BERSIN Ron * OGEC

Mr. Bersin:

I’d appreciate it if you could explain your decision to reject this complaint, and the procedures for appealing it.

Thanks, [UO Matters]@state.or.us>

On WednesdayDec 14, 2011, at 10:15 AM, BERSIN Ron * OGEC wrote:

The materials provided by you and the other complainants did not contain any evidence that an executive session was convened.  The Commission’s jurisdiction is only that narrow portion of the public meeting laws concerning executive sessions.  If a public body does not convene into executive session, the Commission has no jurisdiction.  Without evidence of convening into executive session, the Commission will not open a preliminary review.

There are no appeal procedures for Complainants.  Appeal rights contained in the Administrative Procedures Act are focused towards the Respondents.

Ronald A. Bersin
Executive Director
Oregon Government Ethics Commission
(503) 378-5105

Not very helpful. We replied with:

Subject: Re: Complaint
Date: December 18, 2011 11:52:08 PM PST
To: BERSIN Ron * OGEC

Hi Mr. Bersin

The news stories in the complaints included references by OUS Board Chair Donegan to a decision by the board to fire President Lariviere and to polling of board members.

When you say @state.or.us>

The materials provided by you and the other complainants did not contain any evidence that an executive session was convened. 

Do you mean that, if such polling took place, and a decision to fire was made, that this would not constitute an executive session?

Or are you saying that we have not provided evidence that these things took place?

Thanks for clarifying,

[UO Matters]

and the response was actually enlightening. Apparently he believes on the polling, but doesn’t agree this is a violation:

On Monday Dec 19, 2011, at 8:53 AM, BERSIN Ron * OGEC wrote:

You must provide evidence of an executive session called by the Board.  Simply “polling” or meeting outside of a noticed meeting is not an executive session.  This activity may be in contrast to the open meeting laws, but in the absence of an executive session being called, the Oregon Government Ethics Commission does not have authority.

Ronald A. Bersin [etc.]

We thought we’d been pretty clear about this in the complaint, and tonight we wrote back, with a cc to the Oregon DOJ lawyer in charge of advising the GEC, Lynn Rosik:

Subject: executive session complaint
Date: December 19, 2011 9:50:46 PM PST
To: “BERSIN Ron * OGEC”
Cc: lynn.rosik@doj.state.or.us 
@state.or.us>

Hi Mr. Bersin:

Our complaint noted:

This polling process is of particular concern, given the recent ruling by Coos County Circuit Judge Michael Gillespie on a case regarding Lane County commissioners who had used emails and other methods to agree on decisions privately, before public meetings. This situation, and the ruling which involved substantial legal costs for all parties, is described in this RG story by Karen McCowan:
http://special.registerguard.com/csp/cms/sites/web/updates/25788932-55/commissioners-county-case-gillespie-judge.csp

That decision is available at http://dl.dropbox.com/u/971644/uomatters/Public_Records/Dumdi_Handy_Decision_Gillespie.pdf

Can you point me to any court rulings etc that disagree with this opinion, which, as I understand it, says that polling board members by email or other means constitutes an executive session.

Thanks,  [UO Matters]

And, today:

From: “BERSIN Ron * OGEC”
Subject: RE: executive session complaint
Date: December 20, 2011 8:03:01 AM PST

The information provided to the Commission contained no evidence of the Board convening an executive session.  In the absence of an executive session, the Commission has no authority to proceed.  You will need to provide evidence that the Board convened into an executive session.

Ronald A. Bersin @state.or.us>

We’re getting closer to the sticking point:

Subject: Re: executive session complaint
Date: December 20, 2011 8:14:38 AM PST
To: “BERSIN Ron * OGEC”
Cc: lynn.rosik@doj.state.or.us

Thanks Mr. Bersin,

Would you accept evidence showing that the board chair had polled members by phone and email and arrived at a decision to fire Pres Lariviere as evidence that the board had convened into an executive session without the required public notice, etc.? @state.or.us>

The reply:

Subject: RE: executive session complaint
Date: December 20, 2011 9:38:14 AM PST

You are welcome to provide evidence to the Commission.  The evidence will need to show the Board convened into executive session for the Commission to have authority.  If an executive session was convened, then we will review the evidence to determine if the executive session was held in accordance with statute,

Ronald A. Bersin

and ours:

Subject: OUS board executive session complaint
Date: December 20, 2011 10:01:26 AM PST
To: “BERSIN Ron * OGEC”
Cc: lynn.rosik@doj.state.or.us

Mr. Bersin:

Our complaint included news reports and interviews showing that the Board polled its members and arrived at a decision to fire Lariviere without following the rules for an executive session. We can dig up more of the same, including, I believe, a video of board member Lynda Ciuffetti talking about the decision having been made by the board before the executive session was publicly called.

In the complaint we also noted that you could collect additional information yourself, using the power that the state has given the GEC for the purpose:@state.or.us>

As a first step we ask you to request all records, including emails (using OUS or non-OUS addresses) phone logs, and notes involving Chancellor Pernsteiner, OUS General Counsel Ryan Hagemann, OUS Board Chair Donegan, and other OUS officials and board members involving the decision not to renew President Lariviere’s contract, in order to obtain sufficient documentation to determine if the ORS rules on executive sessions have been broken by the OUS Board and OUS officials. @state.or.us>

We would appreciate it if would explain:

a) why you believe the substantial evidence we have already provided was insufficient, and

b) why you then decided to reject our complaint without using your office’s powers to collect the additional evidence – which we had pointed you to.

Yours, [UO Matters]@state.or.us>

On TuesdayDec 20, 2011, at 10:34 AM, BERSIN Ron * OGEC wrote:

We seem to be at an in-pass.  You must provide evidence that an executive session was convened by the Board and the subject matter for the executive session is one not allowed by statute, or prerequisites were not fulfilled before the convening of an executive session for the Oregon Government Ethics Commission to open a preliminary review.  The Commission has no authority over public meetings outside of a convened executive session.  Without this authority, we are unable to request additional information from the public officials, cited in the complaint. 

The answers to your two questions are as follows:
1.       I have said in previous email responses, the information provided with the complaint contained no evidence of the Board convening an executive session. Without this evidence the materials provided were insufficient to open the preliminary review.
2.       I am unable to open a preliminary review without the evidence that an executive session was convened.  Without an open preliminary review, the Commission is not authorized to request documents and information from public officials.

You mention in your email: “I believe, a video of board member Lynda Ciuffetti talking about the decision having been made by the board before the executive session was publicly called.”

What executive session called?, when was it called?, what statutory cite was used to call the Board into executive session?, what if any prerequisites were completed before the convening of the executive session?  Your complaint contained no information concerning the convening of an executive session, and now this email quotes an executive session being publicly called. 

Ronald A. Bersin

That’s where this stands as of now, I will update as I learn more. You can get the entire thread at http://www.uomatters.com/search/label/OUS%20board%20ethics%20violation

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