75th OREGON LEGISLATIVE ASSEMBLY--2009 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 2616
 
                         House Bill 3183
 
Sponsored by Representative THATCHER (at the request of Richard
  Koenig)
 
 
                             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.
 
  Prohibits agency that conducts hearing on proposed rules from
excluding individual from submitting written or oral testimony at
hearing in cases where security ban would otherwise prohibit
attendance at hearing by individual.
  Requires governing body of public body to provide for sound,
video or digital recording or taking of written minutes of
certain hearings not subject to public meetings law.
 
                        A BILL FOR AN ACT
Relating to public meetings; creating new provisions; and
  amending ORS 183.335 and 192.650.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 183.335 is amended to read:
  183.335. (1) Prior to the adoption, amendment or repeal of any
rule, the agency shall give notice of its intended action:
  (a) In the manner established by rule adopted by the agency
under ORS 183.341 (4), which provides a reasonable opportunity
for interested persons to be notified of the agency's proposed
action;
  (b) In the bulletin referred to in ORS 183.360 at least 21 days
prior to the effective date;
  (c) At least 28 days before the effective date, to persons who
have requested notice pursuant to subsection (8) of this section;
and
  (d) At least 49 days before the effective date, to the persons
specified in subsection (15) of this section.
  (2)(a) The notice required by subsection (1) of this section
must include:
  (A) A caption of not more than 15 words that reasonably
identifies the subject matter of the agency's intended action.
The agency shall include the caption on each separate notice,
statement, certificate or other similar document related to the
intended action.
  (B) An objective, simple and understandable statement
summarizing the subject matter and purpose of the intended action
in sufficient detail to inform a person that the person's
interests may be affected, and the time, place and manner in
which interested persons may present their views on the intended
action.
 
  (b) The agency shall include with the notice of intended action
given under subsection (1) of this section:
  (A) A citation of the statutory or other legal authority relied
upon and bearing upon the promulgation of the rule;
  (B) A citation of the statute or other law the rule is intended
to implement;
  (C) A statement of the need for the rule and a statement of how
the rule is intended to meet the need;
  (D) A list of the principal documents, reports or studies, if
any, prepared by or relied upon by the agency in considering the
need for and in preparing the rule, and a statement of the
location at which those documents are available for public
inspection. The list may be abbreviated if necessary, and if so
abbreviated there shall be identified the location of a complete
list;
  (E) A statement of fiscal impact identifying state agencies,
units of local government and the public which may be
economically affected by the adoption, amendment or repeal of the
rule and an estimate of that economic impact on state agencies,
units of local government and the public. In considering the
economic effect of the proposed action on the public, the agency
shall utilize available information to project any significant
economic effect of that action on businesses which shall include
a cost of compliance effect on small businesses affected. For an
agency specified in ORS 183.530, the statement of fiscal impact
shall also include a housing cost impact statement as described
in ORS 183.534;
  (F) If an advisory committee is not appointed under the
provisions of ORS 183.333, an explanation as to why no advisory
committee was used to assist the agency in drafting the rule; and
  (G) A request for public comment on whether other options
should be considered for achieving the rule's substantive goals
while reducing the negative economic impact of the rule on
business.
  (c) The Secretary of State may omit the information submitted
under paragraph (b) of this subsection from publication in the
bulletin referred to in ORS 183.360.
  (d) When providing notice of an intended action under
subsection (1)(c) of this section, the agency shall provide a
copy of the rule that the agency proposes to adopt, amend or
repeal, or an explanation of how the person may acquire a copy of
the rule.  The copy of an amended rule shall show all changes to
the rule by striking through material to be deleted and
underlining all new material, or by any other method that clearly
shows all new and deleted material.
  (3)(a) When an agency proposes to adopt, amend or repeal a
rule, it shall give interested persons reasonable opportunity to
submit data or views. Opportunity for oral hearing shall be
granted upon request received from 10 persons or from an
association having not less than 10 members before the earliest
date that the rule could become effective after the giving of
notice pursuant to subsection (1) of this section. An agency
holding a hearing upon a request made under this subsection shall
give notice of the hearing at least 21 days before the hearing to
the person who has requested the hearing, to persons who have
requested notice pursuant to subsection (8) of this section and
to the persons specified in subsection (15) of this section. The
agency shall publish notice of the hearing in the bulletin
referred to in ORS 183.360 at least 14 days before the hearing.
The agency shall consider fully any written or oral submission.
  (b) If an agency is required to conduct an oral hearing under
paragraph (a) of this subsection, and the rule for which the
hearing is to be conducted applies only to a limited geographical
area within this state, or affects only a limited geographical
area within this state, the hearing shall be conducted within the
geographical area at the place most convenient for the majority
of the residents within the geographical area. At least 14 days
before a hearing conducted under this paragraph, the agency shall
publish notice of the hearing in the bulletin referred to in ORS
183.360 and in a newspaper of general circulation published
within the geographical area that is affected by the rule or to
which the rule applies. If a newspaper of general circulation is
not published within the geographical area that is affected by
the rule or to which the rule applies, the publication shall be
made in the newspaper of general circulation published closest to
the geographical area.
  (c) Notwithstanding paragraph (a) of this subsection, the
Department of Corrections and the State Board of Parole and
Post-Prison Supervision may adopt rules limiting participation by
inmates in the proposed adoption, amendment or repeal of any rule
to written submissions.
  (d) If requested by at least five persons before the earliest
date that the rule could become effective after the agency gives
notice pursuant to subsection (1) of this section, the agency
shall provide a statement that identifies the objective of the
rule and a statement of how the agency will subsequently
determine whether the rule is in fact accomplishing that
objective.
  (e) An agency that receives data or views concerning proposed
rules from interested persons shall maintain a record of the data
or views submitted. The record shall contain:
  (A) All written materials submitted to an agency in response to
a notice of intent to adopt, amend or repeal a rule.
  (B) A recording or summary of oral submissions received at
hearings held for the purpose of receiving those submissions.
  (C) Any public comment received in response to the request made
under subsection (2)(b)(G) of this section and the agency's
response to that comment.
  (D) Any statements provided by the agency under paragraph (d)
of this subsection.
   { +  (f) Except as provided in paragraph (c) of this
subsection, an agency that holds a hearing under paragraph (a) of
this subsection may not exclude individuals from delivering
written or oral testimony at the hearing, including but not
limited to individuals who are otherwise subject to a security
order prohibiting them from being present in the building in
which the hearing is being held. + }
  (4) Upon request of an interested person received before the
earliest date that the rule could become effective after the
giving of notice pursuant to subsection (1) of this section, the
agency shall postpone the date of its intended action no less
than 21 nor more than 90 days in order to allow the requesting
person an opportunity to submit data, views or arguments
concerning the proposed action. Nothing in this subsection shall
preclude an agency from adopting a temporary rule pursuant to
subsection (5) of this section.
  (5) Notwithstanding subsections (1) to (4) of this section, an
agency may adopt, amend or suspend a rule without prior notice or
hearing or upon any abbreviated notice and hearing that it finds
practicable, if the agency prepares:
  (a) A statement of its findings that its failure to act
promptly will result in serious prejudice to the public interest
or the interest of the parties concerned and the specific reasons
for its findings of prejudice;
  (b) A citation of the statutory or other legal authority relied
upon and bearing upon the promulgation of the rule;
  (c) A statement of the need for the rule and a statement of how
the rule is intended to meet the need;
  (d) A list of the principal documents, reports or studies, if
any, prepared by or relied upon by the agency in considering the
need for and in preparing the rule, and a statement of the
 
location at which those documents are available for public
inspection; and
  (e) For an agency specified in ORS 183.530, a housing cost
impact statement as defined in ORS 183.534.
  (6)(a) A rule adopted, amended or suspended under subsection
(5) of this section is temporary and may be effective for a
period of not longer than 180 days. The adoption of a rule under
this subsection does not preclude the subsequent adoption of an
identical rule under subsections (1) to (4) of this section.
  (b) A rule temporarily suspended shall regain effectiveness
upon expiration of the temporary period of suspension unless the
rule is repealed under subsections (1) to (4) of this section.
  (7) Notwithstanding subsections (1) to (4) of this section, an
agency may amend a rule without prior notice or hearing if the
amendment is solely for the purpose of:
  (a) Changing the name of an agency by reason of a name change
prescribed by law;
  (b) Changing the name of a program, office or division within
an agency as long as the change in name does not have a
substantive effect on the functions of the program, office or
division;
  (c) Correcting spelling;
  (d) Correcting grammatical mistakes in a manner that does not
alter the scope, application or meaning of the rule;
  (e) Correcting statutory or rule references; or
  (f) Correcting addresses or telephone numbers referred to in
the rules.
  (8)(a) Any person may request in writing that an agency send to
the person copies of the agency's notices of intended action
issued under subsection (1) of this section. The person must
provide an address where the person elects to receive notices.
The address provided may be a postal mailing address or, if the
agency provides notice by electronic mail, may be an electronic
mailing address.
  (b) A request under this subsection must indicate that the
person requests one of the following:
  (A) The person may request that the agency mail paper copies of
the proposed rule and other information required by subsection
(2) of this section to the postal mailing address.
  (B) If the agency posts notices of intended action on a
website, the person may request that the agency mail the
information required by subsection (2)(a) of this section to the
postal mailing address with a reference to the website where
electronic copies of the proposed rule and other information
required by subsection (2) of this section are posted.
  (C) If the agency provides notice by electronic mail, the
person may request that the agency electronically mail the
information required by subsection (2)(a) of this section to the
electronic mailing address, and either provide electronic copies
of the proposed rule and other information required by subsection
(2) of this section or provide a reference to a website where
electronic copies of the proposed rule and other information
required by subsection (2) of this section are posted.
  (c) Upon receipt of any request under this subsection, the
agency shall acknowledge the request, establish a mailing list
and maintain a record of all mailings made pursuant to the
request.  Agencies may establish procedures for establishing the
mailing lists and keeping the mailing lists current. Agencies by
rule may establish fees necessary to defray the costs of mailings
and maintenance of the lists.
  (9) This section does not apply to rules establishing an
effective date for a previously effective rule or establishing a
period during which a provision of a previously effective rule
will apply.
  (10) This section does not apply to ORS 279.835 to 279.855,
279A.140 to 279A.155, 279A.250 to 279A.290, 279A.990, 279B.050 to
279B.085, 279B.200 to 279B.240, 279B.270, 279B.275, 279B.280,
279C.360, 279C.365, 279C.370, 279C.375, 279C.380, 279C.385,
279C.500 to 279C.530, 279C.540, 279C.545, 279C.550 to 279C.570,
279C.580, 279C.585, 279C.590, 279C.600 to 279C.625, 279C.650 to
279C.670 and 279C.800 to 279C.870 relating to public contracts
and purchasing.
  (11)(a) Except as provided in paragraph (c) of this subsection,
a rule is not valid unless adopted in substantial compliance with
the provisions of this section in effect on the date that the
notice required under subsection (1) of this section is delivered
to the Secretary of State for the purpose of publication in the
bulletin referred to in ORS 183.360.
  (b) In addition to all other requirements with which rule
adoptions must comply, a rule is not valid if the rule has not
been submitted to the Legislative Counsel in the manner required
by ORS 183.715.
  (c) A rule is not subject to judicial review or other challenge
by reason of failing to comply with subsection (2)(a)(A) of this
section.
  (12)(a) Notwithstanding the provisions of subsection (11) of
this section, but subject to paragraph (b) of this subsection, an
agency may correct its failure to substantially comply with the
requirements of subsections (2) and (5) of this section in
adoption of a rule by an amended filing, as long as the
noncompliance did not substantially prejudice the interests of
persons to be affected by the rule.
  (b) An agency may use an amended filing to correct a failure to
include a fiscal impact statement in a notice of intended action,
as required by subsection (2)(b)(E) of this section, or to
correct an inaccurate fiscal impact statement, only if the agency
developed the fiscal impact statement with the assistance of an
advisory committee or fiscal impact advisory committee appointed
under ORS 183.333.
  (13) Unless otherwise provided by statute, the adoption,
amendment or repeal of a rule by an agency need not be based upon
or supported by an evidentiary record.
  (14) When an agency has established a deadline for comment on a
proposed rule under the provisions of subsection (3)(a) of this
section, the agency may not extend that deadline for another
agency or person unless the extension applies equally to all
interested agencies and persons. An agency shall not consider any
submission made by another agency after the final deadline has
passed.
  (15) The notices required under subsections (1) and (3) of this
section must be given by the agency to the following persons:
  (a) If the proposed adoption, amendment or repeal results from
legislation that was passed within two years before notice is
given under subsection (1) of this section, notice shall be given
to the legislator who introduced the bill that subsequently was
enacted into law, and to the chair or cochairs of all committees
that reported the bill out, except for those committees whose
sole action on the bill was referral to another committee.
  (b) If the proposed adoption, amendment or repeal does not
result from legislation that was passed within two years before
notice is given under subsection (1) of this section, notice
shall be given to the chair or cochairs of any interim or session
committee with authority over the subject matter of the rule.
  (c) If notice cannot be given under paragraph (a) or (b) of
this subsection, notice shall be given to the Speaker of the
House of Representatives and to the President of the Senate who
are in office on the date the notice is given.
  (16)(a) Upon the request of a member of the Legislative
Assembly or of a person who would be affected by a proposed
adoption, amendment or repeal, the committees receiving notice
under subsection (15) of this section shall review the proposed
 
adoption, amendment or repeal for compliance with the legislation
from which the proposed adoption, amendment or repeal results.
  (b) The committees shall submit their comments on the proposed
adoption, amendment or repeal to the agency proposing the
adoption, amendment or repeal.
  SECTION 2. ORS 192.650 is amended to read:
  192.650. (1) The governing body of a public body shall provide
for the sound, video or digital recording or the taking of
written minutes of all its meetings. Neither a full transcript
nor a full recording of the meeting is required, except as
otherwise provided by law, but the written minutes or recording
must give a true reflection of the matters discussed at the
meeting and the views of the participants. All minutes or
recordings shall be available to the public within a reasonable
time after the meeting, and shall include at least the following
information:
  (a) All members of the governing body present;
  (b) All motions, proposals, resolutions, orders, ordinances and
measures proposed and their disposition;
  (c) The results of all votes and, except for public bodies
consisting of more than 25 members unless requested by a member
of that body, the vote of each member by name;
  (d) The substance of any discussion on any matter; and
  (e) Subject to ORS 192.410 to 192.505 relating to public
records, a reference to any document discussed at the meeting.
  (2) Minutes of executive sessions shall be kept in accordance
with subsection (1) of this section. However, the minutes of a
hearing held under ORS 332.061 shall contain only the material
not excluded under ORS 332.061 (2). Instead of written minutes, a
record of any executive session may be kept in the form of a
sound or video tape or digital recording, which need not be
transcribed unless otherwise provided by law. If the disclosure
of certain material is inconsistent with the purpose for which a
meeting under ORS 192.660 is authorized to be held, that material
may be excluded from disclosure. However, excluded materials are
authorized to be examined privately by a court in any legal
action and the court shall determine their admissibility.
   { +  (3) The governing body of a public body shall provide for
the sound, video or digital recording or the taking of written
minutes of all hearings conducted on behalf of the governing body
and to which ORS 192.610 to 192.690 do not otherwise apply. This
subsection applies only to hearings to which the public is
invited for the purpose of providing testimony. This subsection
does not apply to any hearing conducted under ORS chapter 183.
This subsection does not require a full transcript or a full
recording of the hearing. The written minutes or recording must
give a true reflection of the matters discussed at the hearing
and the views of the participants. The governing body on whose
behalf the hearing was conducted shall make all minutes or
recordings available to the public within a reasonable time after
the hearing. The minutes or recordings shall include at least the
following information:
  (a) The name of any person conducting the hearing;
  (b) The substance of any discussion on any matter; and
  (c) A reference to any document discussed at the meeting. + }
    { - (3) - }  { +  (4) + } A reference in minutes or a
recording to a document discussed at a meeting of a governing
body of a public body does not affect the status of the document
under ORS 192.410 to 192.505.
    { - (4) - }  { +  (5) + } A public body may charge a person a
fee under ORS 192.440 for the preparation of a transcript from a
recording.
  SECTION 3.  { + The amendments to ORS 183.335 and 192.650 by
sections 1 and 2 of this 2009 Act apply to hearings held on or
after the effective date of this 2009 Act. + }
                         ----------