Was Donegan and Pernsteiner’s decision legal?

11/23/2011 with updates. I like the “personally liable” part.

Here’s the deal as I understand it. The Board is now claiming they have *not* made a decision about renewal of Lariviere’s contract. They cannot do that without issuing public notice and having a meeting. Instead, OUS Board Chair Matt Donegan polled the members, then met with Lariviere Monday and told him he did not think the contract would be renewed. He asked Larivere to go quietly.

Lariviere went to the Governor for help. Tuesday at 4PM, Kitzhaber told Lariviere no, he would stand by the board and their decision. Tuesday night Lariviere then told the UO leadership via conference call he would not go quietly.

The OUS board and their ace legal counsel Ryan Hageman have now written a press release serving public notice of a public meeting to ratify the decision they have already made without a public meeting. This is the situation Donegan had hoped to avoid by convincing Lariviere to resign.

Given that “personally liable” part, I’m wondering what lawyer advised OUS board chair Matt Donegan that he could poll the board and make a secret decision to fire Lariviere. OUS Counsel Ryan Hageman? Or Dave Frohnmayer or Melinda Grier – both of whom were part of recent proposals to provide legal advice to OUS regarding employment law.

So, was it legal? Read this RG story on a very similar recent case:

Lane County Commissioners Rob Handy and Pete Sorenson willfully violated Oregon’s public meetings law in 2009 and are personally liable for hundreds of thousands of dollars in legal expenses in the case, a judge said in a ruling released Tuesday.

Handy lined up votes to approve personal assistants for commissioners and worked with Sorenson in advance to script a vote, making the resulting public process a “sham,” Coos County Circuit Judge Michael Gillespie wrote in a 44-page opinion. “It was orchestrated down to the timing and manner of the vote so as to avoid any public discussion.”

That sounds familiar. Here’s Oregon’s public meetings law:

ORS 192.620 establishes Oregon’s policy of open decision-making by governing bodies:

The Oregon form of government requires an informed public aware of the deliberations and decisions of governing bodies and the information upon which such decisions were made. It is the intent of ORS 192.610 to 192.690 that decisions of governing bodies be arrived at openly.

This open decision-making policy is given effect by the law’s substantive provisions. These provisions are intended to ensure, among other things, that the meetings of governing bodies, at which decisions about the public’s business are made or discussed, are open to the public, ORS 192.630(1), (2); that the public has notice of the time and place of meetings, ORS 192.640; and that the meetings are accessible to persons wishing to attend, ORS 192.630(4), (5).

There are provisions allowing executive sessions, for example for personnel decisions. These also require public notice:

II.D.1. Notice
The Public Meetings Law requires that public notice be given of the time and place of meetings. This requirement applies to regular, special and emergency meetings as those terms are used in ORS 192.640. The public notice requirements apply to any “meeting” of a “governing body” subject to the law, including committees, subcommittees and advisory groups. See discussion above of Governing Bodies and of Meetings. A governing body’s notice must be reasonably calculated to provide actual notice to the persons and the media that have stated in writing that they wish to be notified of every meeting.[26]

If a meeting will consist only of an executive session, notice still must be given to the members of the governing body, to the general public and to news media that have requested notice. The notice also must state the specific legal provision authorizing the executive session. ORS 192.640(2).

Notices for meetings that will include both an executive session and a nonexecutive session should give notice of both and state the statutory authority for the executive session.

OUS’s public notice page is here. OUS meetings docket page is here. I can’t find any notice that Lariviere’s contract was up for review. If that’s true, what’s the recourse?

A citizen who believes that a governing body has violated the provisions permitting an executive session may file a complaint with the Oregon Government Ethics Commission.

Their website is here.The same issue came up with the board’s 1987 decision not to renew President Olum’s contract. I’m still searching for a copy of the AG opinion on that, written by, you guessed it, our friend and then AG Dave Frohnmayer.

Here’s a 1988 opinion reaffirming the OUS’s obligation to follow the open meetings law.

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14 Responses to Was Donegan and Pernsteiner’s decision legal?

  1. Anonymous says:

    Lariviere has some good ideas and was willing to push the envelope. What he apparently didn’t understand is the State Board of Higher Education has to deal with ALL public universities and it just doesn’t work to have a renegade operating independently of the Board. Lariviere’s failing was not working with the Board to develop his ideas in an environement of collaboration that may have allowed him and the U of O to be the test case for major reform of the public university system. As for Phil Knight’s comments, Knight would never tolerate the behavior of an executive going around his back to the Board to affect major change in Nike. That is exactly what Lariviere did. He viewed himself above the workings of the Board of Higher Education to the point of not attending Board meetings. When one shows disdain for their boss it generally does not work out well.

  2. UO Matters says:

    Thanks for sharing your thoughts, Dr. Pernsteiner.

  3. Anonymous says:

    Perhaps the “boss” deserves the disdain.

  4. Anonymous says:

    Typically this site provides somewhat unbiased takes but it appears you have been bought off by the pay raise. Lariviere plan may have been good for the UofO but it had the potential to cripple K-12 education and other state programs with its huge taxpayer risk.

  5. Anonymous says:

    Sorry, that “poll” constitutes decision-making by a public body, especially if he was informed of the result afterward. It seems Richard will not go quietly and I applaud that.

  6. Anonymous says:

    You may be right, Phil Knight might not take a subordinate going around him well. But here’s the rub. Lariviere was charged with running the UO, and doing what was needed to make it great, and guide it toward the future. He did/does that. The issue is that in doing that, he was threatening to remove some of the power OUS holds. The other issue is, Phil isn’t in charge of Nike anymore, and Nike is a private organization.

    Yes, insubordination is probably what this is about. OUS got it’s feelings hurt. But they hired the man to do what he did, and now they’re punishing and the whole UO for it. And in the process, going to make it pretty damn hard to get anyone truly great into the same office in the future. They can fire him, but it’s a pretty shortsighted thing to do. When you have a truly talented employee, you try to redirect their energy… not can them and hope to get someone else that’s more agreeable next time. Apple learned that one back in the 80’s.

  7. Anonymous says:

    We Love Our Pres says that there will be a public meeting of the OUS board Monday “regarding the status of the employment agreement” of Lariviere. Are they circling back around to do it legally this time? And if so, is there any wiggle room between now and then?

    http://weloveourpres.blogspot.com/2011/11/state-board-meets-to-fire-lariviere-now.html

  8. Anonymous says:

    Did Pernsteiner et al really think they could weasel through a decision like this during Thanksgiving week, as if no one would notice? Last I looked, the “petition for reinstatement of president richard lariviere” received nearly 2,000 signatures in 2.5 hours (http://senate.uoregon.edu/node/1320/webform-results/download).

    OUS is fundamentally a skimming operation. The Board is complacent and out of touch. Combined, they have been unable to define a way for Oregon universities to climb out of the morass of mediocrity muddling our roots for decades. When an outsider arrived with startling new ideas – ideas that captured national attention for their potential to help save other institutions of higher education on the brink of financial ruin – these expensive “leaders” got petulant. They demonstrate their lack the commitment to Oregonians by their repeated failure to consider bold alternatives. They are an expensive embarrassment – decisive defenders mediocrity.

    I look forward to Kitzhaber’s second thoughts.

  9. Anonymous says:

    Re: “Thanks for sharing your thoughts, Dr. Pernsteiner.” Georgie lacks a doctoral degree. “George Pernsteiner holds a B.A. in Political Science from Seattle University and a MA in Public Administration from the University of Washington” per http://www.ous.edu/news_and_information/bios/pernsteiner.php.

  10. Anonymous says:

    Unless I am mistaken, under the governor’s education plan there will be one board for K through college. Doesn’t that mean OUS will be dissolved and Pernsteiner will be out of a job too?

  11. Anonymous says:

    In terms of Oregon’s Sunshine Laws, personnel and employment matters are one of the few exceptions to open meetings and are permitted to be held in Executive Sessions.

  12. Anonymous says:

    If the Board is considered a governing body and UO is considered a public body, well, that thrown-together Monday meeting of the Board has to be held in Eugene, according to public meeting guidelines. Anyone know where it’s scheduled?

  13. Ying Tan says:

    Anonymous #1, perhaps its not possible for a forestry minded board to understand the greatness of a top scholar President’s vision/plan?

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