Handy v. Lane Cnty.

• Decision Date: 25 November 2016
• Docket Number: SC S063725,CC 161213685
• Citation: 385 P.3d 1016,360 Or. 605
• Parties: Rob HANDY, Respondent on Review, v. LANE COUNTY, Jay Bozievich, Sid Leiken and Faye Stewart, Petitioners on Review.
• Court: Oregon Supreme Court

360 Or. 605

385 P.3d 1016

Rob HANDY, Respondent on Review,

v.LANE COUNTY, Jay Bozievich, Sid Leiken and Faye Stewart, Petitioners on Review.

CC 161213685

SC S063725

Supreme Court of Oregon.

Argued and submitted June 14, 2016.

November 25, 2016

Stephen E. Dingle, Office of Lane County Counsel, Eugene, argued the cause and filed the briefs for petitioners on review.

Marianne Dugan, Eugene, argued the cause and filed the brief for respondent on review. Also on the brief was Daniel Galpern, Eugene.

Harry Auerbach, Portland Office of City Attorney, argued the cause for amici curiae Association of Oregon Counties, League of Oregon Cities, City of Portland, and Washington County. Sean O'Day, League of Oregon Cities, Salem, filed the brief. Also on the brief were Rob Bovett, Association of Oregon Counties, Katherine Thomas, Office of Multnomah County Attorney, Harry Auerbach, Portland Office of City Attorney, and Alan A. Rappleyea, Washington County Counsel.

Keith M. Garza, Law Office of Keith M. Garza, Oak Grove, filed the brief for amicus curiae Tri-County Metropolitan Transit District of Oregon. Also on the brief was Erik Van Hagen, TriMet.

Alan A. Rappleyea, Washington County Counsel, Hillsboro, filed the brief for amicus curiae Washington County.

Jack L. Orchard, Ball Janik, LLP, Portland, filed the brief for amici curiae Oregon Newspaper Publishers Association, Albany Democrat-Herald, Beaverton Valley-Times, Canby Herald, Central Oregonian, Corvallis Gazette-Times, Eugene Register-Guard, Forest Grove News-Times, Gresham Outlook, Hood River News, Lake Oswego Review, Lebanon Express, Madras Pioneer, McMinnville News-Register, The Oregonian, Polk County Itemizer-Observer, Portland Tribune, The Dalles Chronicle, Tigard and Tualatin Times, Wilsonville Spokesman, and Woodburn Independent. Also on the brief was Amy Heverly.

En Banc

KISTLER, J.

Oregon's public meetings law provides that a quorum of a public entity's governing body "may not meet in private for the purpose of deciding on or deliberating toward a decision." ORS 192.630(2). Plaintiff filed this action claiming, among other things, that a quorum of the Lane County commissioners had violated that provision by engaging in a series of private communications to decide whether to comply with a public records request. Plaintiff's claim raises primarily two issues. The first is whether a quorum of a public body can "meet" in violation of ORS 192.630(2) by means of seriatim communications or whether a quorum can meet only if all the members of the quorum are present at the same time. The second issue is whether, if a quorum can meet by means of seriatim communications, plaintiff's evidence was sufficient to establish that a quorum of the commissioners met privately.

The trial court assumed that a quorum can meet by means of seriatim communications, but it ruled that plaintiff had not offered sufficient evidence to avoid defendants' special motion to strike. See ORS 31.150 (providing for special motions to strike certain kinds of claims). The court accordingly dismissed plaintiff's claims without prejudice. The Court of Appeals reversed. Handy v. Lane County , 274 Or.App. 644, 362 P.3d 867 (2015) (en banc). The majority held that a quorum can meet by means of seriatim communications and that plaintiff had presented sufficient evidence from which a reasonable trier of fact could find that a quorum of the Lane County commissioners had met to decide or deliberate toward deciding whether to comply with a public records request. Id. The dissent would have held that a quorum can meet only if all the members of the quorum are present at the same time, either in person or electronically, which had not occurred in this case. Id. at 684, 362 P.3d 867 (DeVore, J., dissenting).

We allowed defendants' petition for review to consider those issues. We now hold that, even if plaintiff can rely on a series of communications to establish that a quorum met to decide or deliberate toward a decision, the evidence in this case was not sufficient to establish that a quorum had done so. That is, we agree with the trial court that, given the evidence that plaintiff offered in response to defendants' special motion to strike, no reasonable trier of fact could find that a quorum met to decide whether to comply with the public records request. We reverse the Court of Appeals decision in part and affirm it in part.

I. FACTS AND PROCEEDINGS BELOW

In April 2011, the Lane County Circuit Court entered a $350,000 judgment against the Lane County Board of Commissioners for violating the public meetings law. Dumdi v. Handy , Lane County CC No. 16-10-02760 (2011) (general judgment).¹ Additionally, as a result of those public meetings law violations, the trial court entered $20,000 judgments individually against the plaintiff in this case (who was a defendant in Dumdi ) and another Lane County Commissioner (Sorenson). Id.

A year later, plaintiff was running for reelection as a Lane County Commissioner. On May 1, 2012, the Lane County District Attorney received a call from a local businessman, who said that plaintiff "ha[d] been pushing him to donate money ‘anonymously’ to pay off a debt" that plaintiff owed Lane County. According to the caller, other persons may have already made anonymous donations on plaintiff's behalf to help pay off the debt. Given plaintiff's status as a county commissioner, the district attorney concluded that it was inappropriate for his office to investigate that allegation. He accordingly asked the Oregon Department of Justice to investigate.

The next day, on May 2, an attorney representing the businessman sent a letter to plaintiff, stating that plaintiff had asked the businessman to make an anonymous "campaign contribution or a $3,000 payment to Lane County for [plaintiff's] personal benefit." The letter explained why, in the attorney's view, plaintiff's request had violated Oregon's ethics laws, campaign finance laws, and criminal laws. The attorney also observed that, in his opinion, plaintiff's actions exposed Lane County to liability. Enclosed with the letter were several documents. One was a copy of a handwritten note that purported to be from plaintiff to the businessman, asking him to make an anonymous $3,000 contribution to help pay off the $20,000 debt that plaintiff owed Lane County. Also enclosed was a list of payments that previously had been made on plaintiff's $20,000 debt to Lane County. In addition to showing biweekly payroll deductions, the list showed three contributions totaling $3,020 from unnamed citizens. The attorney copied the letter on the Lane County District Attorney, the Secretary of State, the Elections Director, and the Oregon Government Ethics Commission. The attorney also attached a copy of the letter to an email, which he sent at 2:28 p.m. on May 2 to the Lane County District Attorney.

Within two hours after the attorney emailed the letter, the Lane County administrator received a public records request from Bill Lunden at a local radio station. Having received that request, the county administrator asked the district attorney about it. The district attorney responded by email at 4:04 p.m., "I assume this is the record Mr. Lunden is seeking. Holy cow ... this just arrived in my office at 14:38 [sic ]. I haven't even read the attached letter yet!" (Ellipses in original.)

The county administrator wrote back eight minutes later and said, "After you read it let me know what you want me to do."

Between 4:04 p.m. and 7:30 p.m., the county administrator spoke to two county commissioners (Commissioners Bozievich and Stewart). Both asked her about potential county liability. At 7:38 p.m., the county administrator sent the following email to two county commissioners (Commissioners Leiken and Bozievich), which she copied on the district attorney and a senior county counsel:

"Commissioners, I've now had a chance to review the letter we received today from [the businessman's attorney]. Commissioner Stewart asked me about County liability. Commissioner Bozievich had the same concern when I spoke to him earlier. I would like to consult with [the district attorney] and/or [the senior county counsel], but at the very least it makes me concerned about what else may be occurring that we aren't aware of. I'd like to give some advice to Finance as to what they should do with the monies we've already received. I'm also concerned that it will look like we are trying to hide something if we refuse the public records request. Our practice is to use the exceptions if they exist, but it feels wrong in this case. I'll consult with counsel on all of these issues and get back to you tomorrow."

Twelve minutes later, Commissioner Leiken replied to the county administrator with a copy to Commissioner Bozievich. Leiken's email stated, "I just read the letter from [the businessman's attorney] and I am very concerned as well with regards to the county's potential liability. I will be in tomorrow morning and look forward to what you find out."

The next morning, May 3, at 5:56 a.m., Commissioner Bozievich replied to the county administrator and Commissioner Leiken. His email said:

"I will be available to come in the morning also. Looking forward to a quick decision on disclosure. Seems like the actual letter to [plaintiff] putting him on notice is already putting any investigation at risk and I do not want to be seen as covering up the receipt of funds from a possible illegitimate source."

A minute later, Commissioner Bozievich sent a second email to the county administrator, saying that Lunden, the person who had made the public records request, was texting him about getting a copy of the attorney's letter. Bozievich asked the county administrator whether there was "[a]ny news on this yet?"

Approximately an hour later, at 7:09 a.m., the county administrator replied to Bozievich by email, "No. Just got done checking emails and texts. Will call [the district attorney]." The district attorney concluded...