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 * OGECMr. 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 * OGECHi 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”@state.or.us>
Cc: [email protected]
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.cspThat 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 PSTThe 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: [email protected]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 PSTYou 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: [email protected]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 https://uomatters.com/search/label/OUS%20board%20ethics%20violation
you are one stubborn SOB
I’m no lawyer but here’s how I read this:
1. Violations of Public Meetings Law that occur DURING and executive session are investigated by the GEC;
2. Violations of the Public Meetings Law that occur OUTSIDE an executive session are handled through the Oregon Circuit Court; ergo
3. While their decision would, by any free-thinking person, be considered a de facto executive session, because they didn’t call an executive session and made a decision anyway, their violation of the law must be taken up with the circuit court (like the Lane County Board of Commissioners decision). Yes they violated the law but this particular decision is not within the investigative realm of the GEC.
Check the DOJ’s public records and meetings manual for more.
So public ethics commissions like this are in place then to give even more of an impetus to State agencies to hide everything they do from the public in order for ethics violations to be safely ignored?
Dandy.
ACK! Because you don’t have any emails saying “Let’s have a secret executive session,” he’s trying to tell you that you have to take this up with the Circuit Court (notice that the Circuit Court ruled on the Lane County case).
He’s likely not supposed to advise you to sue, which is probably why he’s so obscure.
I’m also no lawyer, but my interpretation is also that the complaint is properly filed in Circuit Court.
This violation of open meetings law by the OUS Board was much worse than anything the Lane County Commissioners have ever done. In that case, the Judge ruled, “In effect, the public meeting vote on December 9 was a sham….It was orchestrated down to the timing and manner of the vote as as to avoid any public discussion.”
Sounds a lot like the OUS Board vote.
So, someone needs to file in Circuit Court. But, who will take the lead?
The University of Oregon should file the complaint in the Circuit Court. They were the damaged party, and Randy needs something to do to keep him out of mischief.