The Malheur County Development Corp. board may have broken Oregon Open Meetings Law with a series of decisions last month. The board oversees the rail reload project now under construction in Nyssa. (The Enterprise/LES ZAITZ)
NYSSA – Brad Baird needed to get a $5 million contract awarded for the Nyssa rail project and he felt he had little time.
But Baird, president of Anderson Perry & Associates – the firm hired to do the engineering work on the $26 million project – had a problem. Such a decision required a vote by the Malheur County Development Corp. board and there was no meeting on the schedule.
“We need to avoid losing this week as the schedule is tight for the project,” Baird wrote to the members of the Malheur County Development Corp., the nonprofit entity created by the county oversee the project, by email on Dec. 28.
“If possible, we would like the award made today,” he wrote.
Normally, meetings of public agencies have to follow an Oregon law that says such decisions need to be made openly.
That didn’t happen.
Instead, Baird wrote out a motion for the board and then, one by one, the directors of the public company approved the bid award, messaging from their personal email accounts.
The process may violate the state public meetings law, and it wasn’t the first time the board had opted to decide on public matters in secret.
Scores of public bodies, including others in Malheur County, are covered the law mandating public meetings: “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,” the law says, declaring “that decisions of governing bodies be arrived at openly.”
None of the directors of the development corporation, responsible for spending $30 million in public money to erect the Treasure Valley Reload Center, addressed questions about their decisions made outside of a meeting open to the public.
Greg Smith, the contractor who runs the rail project and organizes board meetings, ignored detailed questions.
“Your negative assumptions are incorrect. Please do your homework, as you are walking a thin line. Slander is a hard pill to swallow,” Smith said in an email.
Smith, from Heppner, has been a public official in Oregon for 20 years.
Grant Kitamura, the Ontario onion industry executive who is president of the public development corporation, said that he didn’t have “answers to the question of whether it was legal.” Besides the development corporation board, Kitamura also served on a state board that operates under open meetings requirements.
Lynn Findley, a state senator from Vale who is also a director of the development corporation, said regarding the bid award, “I thought it was an advisory deal. I do not believe there was a plot to keep it out of the public eye.”
Subsequently provided detailed questions in writing, Findley responded, “I do not have the time to review and respond” because of legislative business. Findley previously served as Vale city manager, involved with several public bodies that had to comply with Oregon’s open meetings laws.
Other directors who approved the $5 million contract didn’t respond to emails about the matter. That included Kay Riley, general manager of Snake River Produce in Nyssa; Jason Pearson, an executive with Eagle Eye Produce in Nyssa; and Corey Maag, a Vale-area farmer.
Kitamura, Findley, Riley, Maag and Pearson were appointed to their positions by the Malheur County Court.
Malheur County Judge Dan Joyce, who has been on the county court for 20 years, declined to address the development corporation’s board acting by email.
“Those are legal questions. I don’t know the particulars or the background,” said Joyce.
The Malheur County Development Corp. board ordinarily meets by phone, giving the public notice, posting an agenda and allowing any citizen to dial in and comment.
The Oregon law was adopted in 1973 to provide more government openness in the post-Watergate era.
The open meetings law declares, “No quorum of a governing body shall meet in private for the purpose of deciding on or deliberating toward a decision.”
The development corporation board’s process to decide on the $5 million contract came into public view after the Enterprise obtained public records, including an email chain among the directors.
Baird requested the board decide in a way that mimicked what would happen in a public meeting. Those on public boards and councils usually decide by voting on motions before them.
In his email, Baird provided language to the board: “The motion would be as follows: MCDC approves award of the TVRC rail contract to RailWorks Track Systems Inc. in the base bid amount of $5,038,144.”
Each director then used email to share their decision with the rest of the board.
Smith wrote, “I recommend approval.”
Pearson: “I too recommend approval.”
Riley: “I approve awarding the contract.”
Findley: “Recommend approval and award.”
Kitamura: “I approve awarding the bid.”
Maag: “I approve the bid.”
Earlier in December, the development corporation board decided two other matters without meeting in person, but instead by email among themselves, according to public documents obtained from the development corporation last week.
One decision was a resolution giving Kitamura the authority to sign documents to finish acquiring land for the rail center.
“I would ask the board to motion, second and vote” on the resolution, Smith wrote.
He also urged the board to act on awarding a $1.2 million contract for the rail center building.
“I would ask for a motion, a second and subsequent acknowledgement from all board members that they have received the documents,” he wrote in a Dec. 7 email to all the directors.
He later reported by email that Maag “motioned” to approve the resolution and asked for “votes” and “acknowledging the receipt of the bids.”
His language about “acknowledging” the bids is unclear because Baird had earlier in the day asked the board to “approve” the bid for the building so it could be “ordered ASAP.”
Kitamura, the president, then summarized in an email that all directors had voted yes on “the corporate resolution and approval of the building materials bid.”
Minutes of a later board meeting showed the “board approved two items via email” and described how “Corey Maag moved to accept these items, Jason Pearson seconded, and the vote passed unanimously (all via email.)”
There is no record that the board alerted the public to its email voting sessions, allowed any participation, or shared beforehand the documents on which the decisions would be based.
According to the Oregon Public Meetings Law “nonexecutive session meetings held by telephone or other electronic means of communication” must provide the public “at least one place where its members may listen to the meeting by speakers or other devices.”
The state Justice Department manual on public meetings explains, “The Public Meetings Law also requires that public notice be given’ of the time and place of meetings. The public notice requirements apply to any ‘meeting of a governing body.”
Under the law, special meetings also require “at least” 24 hours’ notice to the public and “any news media who have requested notice, and the members of the governing body.”
Jack Orchard, a First Amendment attorney who represents the Oregon Newspaper Publishers Association, said email meetings by a public board are lawful only if they meet specific requirements.
The board must give notice, post an agenda, make accommodations for public to access the email exchanges, make all parts of the discussion – such as motions and votes – available to the public and preserve minutes and any other documents, said Orchard.
Orchard also said a board must ensure all actions and discussion are in “the public forum” and any “materials available to the staff and board members are available to the public.”
“Generally speaking, I think an internet, sequential e-mail meeting is tough to pull off if the meetings law requirements are truly met,” said Orchard.
The Attorney General’s Public Records and Meetings Manual, relied on by government officials to guide their conduct, says a vote by mail “could not be used” unless there is a specific legal provision. “It would also be improper because a decision by the board, commission, or council may only be made at a meeting at which a quorum is present,” the manual says.
“If improper procedures in voting such as the use of a proxy, an absentee ballot, a vote by mail, or a secret ballot are used, it will cast grave doubts on the validity of any decision arrived at as a result of using these procedures,” the manual states.
News tip? Contact Pat Caldwell at [email protected].
Previous coverage:
WATCHDOG: Nyssa rail center, public money, and a most unusual deal
Costs for rail for Treasure Valley Reload Center comes in high; one key track line remains optional
‘NEED $3.6 million’ – Records raise questions about Malheur County rail center finances
EXCELLENCE IN JOURNALISM – Available for $5 a month. Subscribe to the digital service of the Enterprise and get the very best in local journalism. We report with care, attention to accuracy, and an unwavering devotion to fairness. Get the kind of news you’ve been looking for – day in and day out from the Enterprise.