March 05, 2004

Analysis Of Lawsuit Against Multnomah County, Part I

Did The County Violate State Open Meetings Law?

We notice that readers have been offering their own analyses of today's lawsuit in the comments to the previous item. We're refraining from examining them just yet, so we can offer our own analysis completely fresh. Then we'll go compare thoughts.

This is going to be a very long, involved, and detailed post. And so, for the purposes of this site's main index page, we are going to require the reader to click through for the rest. In addition, we will be breaking this analysis into component parts based upon each of the plaintiffs' allegations.

First, let's examine the allegation that Multnomah County Commissioners violated open meetings law. Here's what the suit alleges:

The above change in longstanding Multnomah County and State policy and practice, and the decision not to abide by the provisions of ORS Chapter 106, described in paragraph 4, above, is a "decision" within the meaning of ORS 192.610(1).

Well, let's examine Chapter 192 of the Oregon Revised Statutes, and see what ORS 192.610(1) says:

1) "Decision" means any determination, action, vote or final disposition upon a motion, proposal, resolution, order, ordinance or measure on which a vote of a governing body is required, at any meeting at which a quorum is present.

At issue here, we believe, will be the court's determining whether or not what was done constitutes a "determination, action, vote or final disposition upon a motion, proposal, resolution, order, ordinance or measure on which a vote of a governing body is required." In that light, then, we need to look at the Multnomah County Home Rule Charter and see if we can determine what sort of action the County undertook, and whether or not it falls within the above definition of "decision."

We'll begin with Multnomah County Legal Authority and Structure, starting with its explanation of Legislative Authority:

Charter Section 2.20 vests county legislative authority in the board, subject to the initiative and referendum powers reserved to county voters. Section 5.10 states that all county legislative action must be by ordinance.

...

In addition to Charter home rule legislative authority, ORS 203.035 grants the board and electors legislative authority within the county over matters of county concern. This provision was first enacted in 1973.

...

State law requires that certain county decisions be made by ordinance. For example, real property taxes must be levied by ordinance. The Charter also requires that some board actions take place by ordinance. Commissioner district boundaries adoption (Section 3.15), advisory board and commission creation (Section 3.70), citizen involvement committee structure (Section 3.75, interim officer designation procedure (Section 4.50), exclusion of employees from classified service (Section 7.10), civil service system (Section 7.30), public improvement procedures (Section 10.20), and initiative and referendum procedures (Section 11.30) must all be in ordinance form.

With these elements in mind, we need then to examine what this section of the Charter, on the other hand, has to say about Administrative Authority:

The chair must execute board policies and ordinances of the county.

...

Implicit with these Charter powers and duties is the authority to make rules governing the administrative practices and procedures necessary for their discharge. For example, the duties to execute board policies and ordinances, sign contracts, prepare county budget, and act as chief executive officer imply authority to adopt rules, practices and procedures to perform these duties.

In addition to charter delegated and implied authority, the chair also has authority delegated from the board by ordinance. These ordinances, codified in the county code, give the chair authority to adopt "executive rules". Numerous code provisions authorize the chair to implement specific policies adopted by the board.

...

All county administrative authority not delegated to the chair, sheriff, auditor or otherwise by the Charter remains with the board. Section 2.20 states: "Any other power of the county not vested by the Charter elsewhere shall be vested in the board but may be delegated by it." Thus, in addition to its exclusive legislative authority, the board has administrative authority.

Under the code the board adopts county "policy" by enacting an ordinance or adopting a resolution. An "ordinance" is a board exercise of legislative authority. A "resolution" is an exercise of board administrative authority.

The summary of this section, in part, puts it thusly:

The Charter delegates specific administrative powers and duties to the chair, sheriff and auditor. The board retains all residual legal authority. Only the board has legislative authority, the power to enact ordinances. The board also has administrative authority that it exercises by resolution. The board and chair may delegate administrative authority.

What we need to determine first is whether the County's actions qualify as a legislative act or an administrative one, and therefore just who at the County had the authority to act: the Board or the Chair.

If a legislative -- and therefore Board -- act, then there may very well be an open meetings law violation, since neither an ordinance nor resolution was adopted by the Board. If an administration -- and therefore likely Chair -- act, then there is no violation of the open meetings law.

Since the County's contention is that this was an administrative decision by County Chair Diane Linn, let's see whether or not that's possible. To do so, we first turn in the Charter to Chapter IV, on Administration:

The chair of the board of county commissioners:

...

(4) Shall execute the policies of the board and the ordinances of the county;

Examing both the County Charter and the Multnomah County Code, we find no specific provision for issuing marriage licenses of any kind. Rather, that authority comes from Chapter 106 of the Oregon Revised Statutes. Specifically, ORS 106.041(1):

All persons wishing to enter into a marriage contract shall obtain a license therefor from the county clerk upon application, directed to any person or religious organization or congregation authorized by ORS 106.120 to solemnize marriages, and authorizing such person, organization or congregation to join together as husband and wife the persons named in the license.

With such authority granted via state statute, there is no need for a specific County policy regarding the issuance of marriage licenses. Keeping this in mind, let's return to what the County says transpired.

At least two Commissioners asked the County Attorney for a legal opinion as to the issuance of same-sex marriage licenses. Here's what Chapter 7 of the County Code says, in part, about the duties of the County Attorney:

(J) Prepare formal written opinions deemed necessary by the County Attorney regarding significant interpretations of federal and state law, the Charter and ordinances and other documents. Formal opinions may be requested by any county elected official or department director. Formal opinions shall be official guidance to the county unless superseded by court or administrative decisions, or subsequent legislation or administrative rules;

So, point one: The Commissioners in question who asked the County Attorney for a legal opinion on the issuance of same-sex licenses did so under their proper authority to make such a request. This stage of the County's process is legitimate.

Now here's the thing. Because the County's authority to issue marriage licenses is governed by state statute, and not by County Code (which would imply an ordinance that would need a similar ordinance to adjust), what the Commissioners did is simply ask the County Attorney what in essence was the following question: What is the proper manner in which to discharge the County's statutory authority to issue marriage licenses?

Because this was merely a request for clarification as to the proper and lawful way in which to discharge that existing authority (this is the good bit) no new Board action was required.

What does this mean? It means that the County's action was not a "decision" as defined by ORS 192.610(1). It was not a "determination, action, vote or final disposition upon a motion, proposal, resolution, order, ordinance or measure on which a vote of a governing body is required."

And therefore the open meetings law does not apply. While more than one County Commissioner may have discussed the matter with one another, this was not a legislative process. Not being a legislative process, there was no requirement that open meetings law be followed.

So why are the Commissioners going to such great lengths to assure people that open meetings law was followed anyway? Not because they believed this was a legislative action and therefore within the purview of open meetings law. Rather, it was because they are smart enough to know that for such a controversial issue, someone would come after them on this count.

Layman's summary: Multnomah County's actions were not legislative in nature, did not constitute a "decision" under ORS 192.610(1), and therefore did not fall under Oregon's open meetings law. Since the action was merely to discharge the County's existing statutory authority to issue marriage licenses, and since the legal opinion of the County Attorney determined that same-sex marriage licenses cannot be denied without violating Article I, section 20, of the Oregon Constitution's prohibition against discriminatory privileges, the County Chair was entirely within her rights to instruct the Clerk to obey what the County Attorney had determiend to be the law.

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