72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2255
House Bill 2762
Sponsored by Representative KRUSE
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires public body to conduct collective bargaining in
public. Requires public body to notify public of collective
bargaining. Authorizes resident of public body's jurisdiction to
bring civil action for violation or on application of Act.
Authorizes Oregon Government Standards and Practices Commission
to penalize public official for violating Act. Allows maximum
civil penalty of $1,000 for violation of Act.
A BILL FOR AN ACT
Relating to public body collective bargaining; creating new
provisions; and amending ORS 192.610, 192.660, 192.685, 244.350
and 342.176.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 5 of this 2003 Act are added to
and made a part of ORS 192.610 to 192.690. + }
SECTION 2. { + All collective bargaining by a public body
shall be open to the public, and all persons shall be permitted
to attend any collective bargaining by a public body. + }
SECTION 3. { + (1) A public body shall conduct collective
bargaining:
(a) Within the geographic boundaries over which the public body
has jurisdiction;
(b) At the administrative headquarters of the public body; or
(c) In the event of an emergency necessitating immediate
action, at the nearest practical location to the administrative
headquarters of the public body.
(2) A public body may not conduct collective bargaining in a
place:
(a) Where a person discriminates on the basis of race,
religion, color, sex, age or national origin; or
(b) That is inaccessible to a person with a disability.
(3) Notwithstanding subsection (2)(a) of this section, a public
body may conduct collective bargaining in a place where an
organization with restricted membership holds meetings if use of
the place by a restricted membership organization is not the
predominate use or primary purpose of the place.
(4) If a person makes a request for an interpreter for hearing
impaired persons within 48 hours before collective bargaining, a
public body shall make a good faith effort to provide an
interpreter for the bargaining.
(5) When a public body conducts collective bargaining by
telephone or other electronic means, the public body shall make
at least one place available where the public can listen to the
bargaining. + }
SECTION 4. { + A public body shall:
(1) Give public notice of the time and place for collective
bargaining, reasonably calculated to give actual notice to
interested persons, including news media, that have requested
notice; and
(2) Take minutes of collective bargaining and make the minutes
available for public inspection within a reasonable time after
the bargaining. + }
SECTION 5. { + (1) A resident of a public body's jurisdiction
may bring a civil action to:
(a) Prevent a violation of sections 2 to 4 of this 2003 Act by
the public body; and
(b) Determine the applicability of sections 2 to 4 of this 2003
Act to actions of the public body.
(2) A person shall commence an action under subsection (1) of
this section in the circuit court for the county in which the
public body ordinarily conducts collective bargaining.
(3) In an action under this section, a plaintiff must present
prima facie evidence of a violation of sections 2 to 4 of this
2003 Act before the public body must prove that the collective
bargaining complied with sections 2 to 4 of this 2003 Act. When a
plaintiff presents prima facie evidence of a violation of
sections 2 to 4 of this 2003 Act, the burden to prove that the
public body complied with sections 2 to 4 of this 2003 Act is on
the public body. + }
SECTION 6. ORS 192.610 is amended to read:
192.610. As used in ORS 192.610 to 192.690:
{ + (1) 'Collective bargaining' means a meeting between a
representative of a public body and a representative of the
employees of the public body:
(a) To negotiate mandatory subjects of bargaining;
(b) To confer about the interpretation or application of a
collective bargaining agreement; and
(c) To execute written contracts incorporating agreements that
the representatives reached in negotiations. + }
{ - (1) - } { + (2) + } '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.
{ - (2) - } { + (3) + } 'Executive session' means any
meeting or part of a meeting of a governing body which is closed
to certain persons for deliberation on certain matters.
{ - (3) - } { + (4) + } 'Governing body' means the members
of any public body which consists of two or more members, with
the authority to make decisions for or recommendations to a
public body on policy or administration.
{ - (4) - } { + (5) + } 'Public body' means the state, any
regional council, county, city or district, or any municipal or
public corporation, or any board, department, commission,
council, bureau, committee or subcommittee or advisory group or
any other agency thereof.
{ - (5) - } { + (6) + } 'Meeting' means the convening of a
governing body of a public body for which a quorum is required in
order to make a decision or to deliberate toward a decision on
any matter. ' Meeting' does not include any on-site inspection
of any project or program. 'Meeting' also does not include the
attendance of members of a governing body at any national,
regional or state association to which the public body or the
members belong.
SECTION 7. ORS 192.660 is amended to read:
192.660. (1) Nothing contained in ORS 192.610 to 192.690 shall
be construed to prevent the governing body of a public body from
holding executive session during a regular, special or emergency
meeting, after the presiding officer has identified the
authorization under ORS 192.610 to 192.690 for the holding of
such executive session. Executive session may be held:
(a) To consider the employment of a public officer, employee,
staff member or individual agent. The exception contained in this
paragraph does not apply to:
(A) The filling of a vacancy in an elective office.
(B) The filling of a vacancy on any public committee,
commission or other advisory group.
(C) The consideration of general employment policies.
(D) The employment of the chief executive officer, other public
officers, employees and staff members of any public body unless
the vacancy in that office has been advertised, regularized
procedures for hiring have been adopted by the public body and
there has been opportunity for public input into the employment
of such an officer. However, the standards, criteria and policy
directives to be used in hiring chief executive officers shall be
adopted by the governing body in meetings open to the public in
which there has been opportunity for public comment.
(b) To consider the dismissal or disciplining of, or to hear
complaints or charges brought against, a public officer,
employee, staff member or individual agent, unless such public
officer, employee, staff member or individual agent requests an
open hearing.
(c) To consider matters pertaining to the function of the
medical staff of a public hospital licensed pursuant to ORS
441.015 to 441.063, 441.085, 441.087 and 441.990 (3) including,
but not limited to, all clinical committees, executive,
credentials, utilization review, peer review committees and all
other matters relating to medical competency in the hospital.
{ - (d) To conduct deliberations with persons designated by
the governing body to carry on labor negotiations. - }
{ - (e) - } { + (d) + } To conduct deliberations with
persons designated by the governing body to negotiate real
property transactions.
{ - (f) - } { + (e) + } To consider records that are exempt
by law from public inspection.
{ - (g) - } { + (f) + } To consider preliminary
negotiations involving matters of trade or commerce in which the
governing body is in competition with governing bodies in other
states or nations.
{ - (h) - } { + (g) + } To consult with counsel concerning
the legal rights and duties of a public body with regard to
current litigation or litigation likely to be filed.
{ - (i) - } { + (h) + } To review and evaluate, pursuant to
standards, criteria and policy directives adopted by the
governing body, the employment-related performance of the chief
executive officer of any public body, a public officer, employee
or staff member unless the person whose performance is being
reviewed and evaluated requests an open hearing. The standards,
criteria and policy directives to be used in evaluating chief
executive officers shall be adopted by the governing body in
meetings open to the public in which there has been opportunity
for public comment. An executive session for purposes of
evaluating a chief executive officer or other officer, employee
or staff member { - shall - } { + may + } not include a
general evaluation of an agency goal, objective or operation or
any directive to personnel concerning agency goals, objectives,
operations or programs.
{ - (j) - } { + (i) + } To carry on negotiations under ORS
chapter 293 with private persons or businesses regarding proposed
acquisition, exchange or liquidation of public investments.
{ - (k) - } { + (j) + } By a health professional regulatory
board to consider information obtained as part of an
investigation of licensee or applicant conduct. Notwithstanding
paragraph (b) or (c) of this subsection, subsection { - (5) - }
{ + (4) + } of this section or ORS 192.650, the public
disclosure of minutes, transcripts or recordings relating to the
substance and disposition of the matter investigated are governed
by ORS 676.175.
{ - (L) - } { + (k) + } By the State Landscape Architect
Board, or an advisory committee to the board, to consider
information obtained as part of an investigation of registrant or
applicant conduct. Notwithstanding subsection { - (5) - }
{ + (4) + } of this section or ORS 192.650, the public
disclosure of minutes, transcripts or recordings relating to the
substance and disposition of the matter investigated is governed
by ORS 671.338.
{ - (2) Labor negotiations shall be conducted in open
meetings unless both sides of the negotiators request that
negotiations be conducted in executive session. Labor
negotiations conducted in executive session are not subject to
the notification requirements of ORS 192.640. - }
{ - (3) - } { + (2) + } Representatives of the news media
shall be allowed to attend executive sessions other than those
{ - held under subsection (1)(d) of this section relating to
labor negotiations or executive session - } held pursuant to ORS
332.061 (2) { + , + } but the governing body may require that
specified information { - subject of the executive session - }
be undisclosed.
{ - (4) - } { + (3) + } When a governing body convenes an
executive session under subsection { - (1)(h) - }
{ + (1)(g) + } of this section relating to conferring with
counsel on current litigation or litigation likely to be filed,
the governing body shall bar any member of the news media from
attending the executive session if the member of the news media
is a party to the litigation or is an employee, agent or
contractor of a news media organization that is a party to the
litigation.
{ - (5) - } { + (4) + } { - No - } { + An + } executive
session may { + not + } be held for the purpose of taking any
final action or making any final decision.
SECTION 8. ORS 192.685 is amended to read:
192.685. (1) Notwithstanding ORS 192.680 { + and section 5 of
this 2003 Act + }, complaints of violations of ORS 192.660
{ + and sections 2 to 4 of this 2003 Act + } alleged to have
been committed by public officials may be made to the Oregon
Government Standards and Practices Commission for review and
investigation as provided by ORS 244.260 and for possible
imposition of civil penalties as provided by ORS 244.350.
(2) The commission may interview witnesses, review minutes and
other records and may obtain and consider any other information
{ - pertaining to executive sessions of the governing body of a
public body - } for purposes of determining whether a violation
of ORS 192.660 { + or sections 2 to 4 of this 2003 Act + }
occurred. Information related to an executive session conducted
for a purpose authorized by ORS 192.660 shall be made available
to the Oregon Government Standards and Practices Commission for
its investigation but shall be excluded from public disclosure.
(3) If the commission chooses not to pursue a complaint of a
violation brought under subsection (1) of this section at any
time before conclusion of a contested case hearing, the public
official against whom the complaint was brought may be entitled
to reimbursement of reasonable costs and attorney fees by the
public body to which the official's governing body has authority
to make recommendations or for which the official's governing
body has authority to make decisions.
SECTION 9. ORS 244.350 is amended to read:
244.350. (1) The Oregon Government Standards and Practices
Commission or the court under ORS 244.260 (8) may impose civil
penalties not to exceed $1,000 for { - violating - } { + a
violation of + } any provision of this chapter or any resolution
adopted pursuant
{ - thereto - } { + to the provisions of this chapter + }
except that for violation of ORS 244.045 the commission may
impose a civil penalty of not to exceed $25,000.
(2) The commission may { - also - } impose civil penalties
not to exceed $1,000 for { - violating any provision - }
{ + a violation + } of ORS 192.660. However, { + the commission
may not impose + } a civil penalty
{ - may not be imposed - } under this subsection if the
violation occurred as a result of the governing body of the
public body acting upon the advice of the public body's counsel.
{ + (3) The commission may impose civil penalties not to
exceed $1,000 for a violation of sections 2 to 4 of this 2003
Act. However, the commission may not impose a civil penalty
under this subsection if the violation occurred as a result of
the public body acting upon the advice of the public body's
counsel. + }
{ - (3) - } { + (4) + } Any penalty imposed under this
section is in addition to and not in lieu of any other penalty or
sanction that may be imposed according to law, including removal
from office.
SECTION 10. ORS 342.176 is amended to read:
342.176. (1) Upon receipt of a complaint or information that a
person has violated ORS 342.143 or 342.175, the Teacher Standards
and Practices Commission shall promptly undertake an
investigation.
(2) The commission may appoint an investigator and shall
furnish the investigator with appropriate professional and other
special assistance reasonably required to conduct the
investigation, and the investigator is empowered to subpoena
witnesses over the signature of the executive director, swear
witnesses and compel obedience in the same manner as provided
under ORS 183.440 (2).
(3) Following completion of the investigation, the executive
director shall report in writing any findings and recommendations
to:
(a) The commission, meeting in executive session, at its next
regular meeting following completion of the investigation; and
(b) The person against whom the charge is made.
(4) The documents and materials used in the investigation and
the report of the executive director are confidential and not
subject to public inspection unless the commission makes a final
determination that the person charged has violated ORS 342.143 or
342.175.
(5) If the commission finds from the report that there is
sufficient cause to justify holding a hearing under ORS 342.177,
it shall notify in writing:
(a) The person charged, enclosing a statement of the charges
and a notice of opportunity for hearing;
(b) The complainant; and
(c) The employing district, if any.
(6) If the commission finds from the report that there is not
sufficient cause to justify holding a hearing under ORS 342.177,
it shall notify in writing:
(a) The person charged;
(b) The complainant; and
(c) The employing district, if any.
(7) Notwithstanding ORS 192.660 { - (5) - } { + (4) + },
the commission may make its findings under this section in
executive session. However, the provisions of ORS 192.660
{ - (3) - } { + (2) + } apply to such sessions.
SECTION 11. { + (1) Sections 2 to 5 of this 2003 Act and the
amendments to ORS 192.610, 192.660 and 192.685 by sections 6 to 8
of this 2003 Act apply to collective bargaining commenced on or
after the effective date of this 2003 Act.
(2) The amendments to ORS 244.350 by section 9 of this 2003 Act
apply to violations occurring on or after the effective date of
this 2003 Act. + }
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