Laine v. City of Rockaway Beach

• Decision Date: 07 June 1995
• Citation: 134 Or.App. 655,896 P.2d 1219
• Parties: David LAINE, Appellant, v. CITY OF ROCKAWAY BEACH, Oregon, Respondent. 92-2051; CA A82667.
• Court: Oregon Court of Appeals

Page 1219

896 P.2d 1219

134 Or.App. 655

David LAINE, Appellant, v. CITY OF ROCKAWAY BEACH, Oregon, Respondent.

92-2051; CA A82667.

Court of Appeals of Oregon.

Argued and Submitted Nov. 28, 1994.

Decided June 7, 1995.

Per A. Ramfjord, Portland, argued the cause for appellant. With him on the briefs were Charles F. Hinkle and Stoel Rives Boley Jones & Grey.

Margaret H. Leek Leiberan, Portland, argued the cause for respondent. With her on the brief were Leiberan & Gazeley, Portland, Lois A. Albright and Albright & Kittell, Tillamook.

Before WARREN, P.J., and EDMONDS and LANDAU, JJ.

LANDAU, Judge.

Plaintiff initiated this action to compel the City of Rockaway Beach (the city) to disclose documents relating to the operation of the Rockaway Beach Fire Department (the fire department) and generated by the fire department before September 1991. Plaintiff contends that the fire department was, before its incorporation as a private, nonprofit entity in 1991, a "public body" subject to the Oregon Public Records Law, ORS 192.410, et seq., and that the city is the custodian of the fire department's records. The city contends that the fire department was a private, volunteer entity, which was not subject to the Public Records Law, and that the city may not be compelled to disclose the requested documents. The trial court found for the city, and plaintiff appeals, assigning error to the trial court's conclusion that the fire department is a private entity not subject to the Public Records Law. We reverse.

The facts do not appear to be in dispute. The city charter of 1942 provides that the city council shall "appoint a fire chief" and that the city council may remove the fire chief it has appointed with or without cause. In 1943, the city appointed the mayor as fire chief and directed him to organize a fire department. The city also approved a plan to take over the Rockaway Rural Fire Protection District that had operated before that time, to acquire the district's equipment, to provide fire protection service to the area previously served by the district, to assume all of the district's liabilities and debts and to indemnify the district for liability for five years. In addition, the city agreed to include in its budget funds sufficient to operate the fire department.

In 1955, the city council passed a motion providing that, in the future, the fire chief would be elected, subject to the "ratification" of the council. It is not clear from the record whether, at least since 1955, the council has exercised its authority to ratify the election of a fire chief. As recently as 1989, however, there is mention in council minutes of the formal acceptance of the resignation of a fire chief. And there is no suggestion in the record that the council has ever abandoned its authority to insist upon ratification.

In 1983, the fire department adopted by-laws for its operations. Under those by-laws, the fire chief

"shall be the executive officer of the Department and shall be responsible to the Mayor and City Council and City Manager for its proper administration and efficient operation.

" * * * * *

"shall diligently observe the condition of apparatus, buildings, tools and equipment, and the status of training and the fire fighting effectiveness in the Department, and render annual reports to the Mayor and the City Council * * *.

" * * * * *

"[and] shall have power to prescribe such other public duties or such other line of action, or issue such orders * * * which in his opinion are urgently necessary for the most efficient operation of the Department or the rendering of service to the public."

Since the adoption of the by-laws, the fire chief regularly reported to the city council on a variety of matters, including vehicle maintenance, membership attendance, numbers of emergency calls, training and community activities.

Although the fire department maintained a bank account separate from the city's, the city provided nearly all of the fire department's financial support. It provided the department with its equipment, buildings and money for personnel training. The city owned the fire hall and paid for its upkeep. The city also paid for the insurance on the fire trucks and the workers, including workers' compensation insurance. The city paid small monthly salaries to the fire chief, an assistant fire chief and a secretary-treasurer. The city also paid a lump sum to the department to be distributed to the volunteer members as "call pay."

Over the years, the city council enacted ordinances that provide the fire department with specific powers to aid in its fire protection efforts. For example, under City Ordinance No. 29, the fire chief can grant permission for open fires within the city limits. Violation of that ordinance may result in a fine or imprisonment. City Ordinance No. 113 provides that all members of the fire department have the power to arrest persons engaging in disorderly conduct near fires or refusing to "observe promptly an order of a member of the fire or police department." City Resolution No. 253 gives all fire department officials the power to declare a state of emergency arising out of any hazardous waste accidents. Under that ordinance, the fire department may

"take all necessary steps authorized by law to secure the persons and property of citizens of the City of Rockaway Beach, including, but not limited to, coordinating the efforts of City departments with regard to mitigation, preparation, response and recovery from [a] hazardous materials incident and requesting aid and assistance from Tillamook County."

In addition, the fire department was granted the authority to enter into agreements in which "City * * * by and through its fire chief" agreed to indemnify and hold harmless the owners of buildings donated to the fire department for burning exercises.

The city also has contracted out the services of the fire department to other areas. For example, in a July 1991 contract, the city agreed to provide fire protection services to Nedonna Rural Fire District of Tillamook County. That contract states that "from time to time the fire chief of the department of City * * * shall * * * visit district" to obtain information necessary to provide fire protection services and that the "City's officer in charge of the fire department or any unit thereof" shall determine what equipment and personnel are required to provide service to the district. A similar agreement was entered into between the city and Neah-kah-nie School District No. 56 of Tillamook County. The city, not the fire department, received direct compensation for providing that service.

In September 1991, the fire department filed articles of incorporation with the Secretary of State, pursuant to the Oregon Nonprofit Corporations Act, and became a public benefit nonprofit corporation, which has since contracted with the city to provide fire protection services.

In October 1991, plaintiff asked the city to allow inspection of records relating to the fire department, including the department's business meeting minutes, equipment maintenance logs, check stubs and treasurer reports. The city denied the request. Following an unsuccessful petition to the district attorney for disclosure, plaintiff initiated this action.

The trial court framed the issue in the following terms:

"As this Court views this case, the issue here is only whether or not the Rockaway Volunteer Fire Department is so connected with the City of Rockaway Beach that it should be considered a part of the City government and because of that close connection be required to comply with public disclosure law."

The trial court then concluded that

"[plaintiff] here has not shown that the Rockaway Beach Volunteer Fire Protection District [sic ] is or was at the herein critical times relevant to this matter, a public corporation or entity that was so much a part of the City that it was bound to comply with the public disclosure law."

On appeal, plaintiff contends that the trial court erred in concluding that, before 1991, the fire department was not a "public body" subject to the Oregon Public Records Law. The city argues that whether the fire department was a public body is not really the issue. Even if the department was a public body, the city argues, the court could not order the department to disclose any documents, because it is not the defendant in this case; the city is. Accordingly, the city argues, the real issue is whether the trial court correctly determined that the fire department was not an agency of the city, such that the city can be ordered to produce the fire department's documents. The city argues that that determination is one of fact, which we review for substantial evidence. Plaintiff does not respond to that argument.

We conclude that the city correctly frames the issue, but it incorrectly states the applicable standard of review. Because plaintiff has sued the city, and not the fire department, a determination that the fire department was a "public body" within the meaning of ORS 192.410(3) would not, strictly speaking, permit the court to order the fire department to disclose its documents; the fire department is not named as a party to this lawsuit. The real issue is, therefore, as the trial court characterized it: Whether the fire department was so connected to the city to be fairly considered an agency or department of the city government, thus justifying an order compelling the city to disclose the fire department's documents.

Whether the fire department was a part of the city government involves findings of historical fact, e.g., the extent to which the city financed the operations of the department, as well as conclusions concerning the legal significance of those facts, e.g., whether the city had the right to control the department's functions. In this case, the parties do not appear to dispute any issues of historical fact. Accordingly, we rev...