League of Oregon Cities Says Ethics Commission Has Distorted Public Meetings Law

In an April 9 letter to the Oregon Government Ethics Commission, the League of Oregon Cities lambasted the body’s interpretation of a new public meetings law that tightens restrictions on how local elected officials may communicate.

“The advice being given by the Commission’s staff is a profound and disturbing misreading of ORS 192.700,” wrote Patty Mulvihill, executive director of the LOC, in a letter addressed to ethics commission chair David Fiskum. “It is also patently unrealistic in its application and so far outside the bounds of what any member of the Legislature would have intended upon the enactment of the statute.”

At issue is a new state law that prohibits local elected officials from using “serial communications” to essentially operate as a quorum outside of the public eye. The League says that the commission’s interpretation has caused ripples of confusion and alarm across Oregon cities that are subject to the new restrictions.

The Legislature passed House Bill 2805 in June 2023. Gov. Tina Kotek signed it into law in July 2023, and the ethics commission finalized the rules in October 2024.

The bill did two things.

First, it barred “serial communications” that formed a quorum—that is, a majority of a governing body—outside of public view. An easy way to think of a serial communication is like a game of telephone: If one city councilor talks to another about a policy and where they stand on it, and that councilor runs into a colleague in the hallway and describes what they just talked to the first councilor about, that would be a serial communication that effectively formed a quorum. (For a Portland City Council policy committee with five members, three people is a quorum.)

Secondly, HB 2805 required the ethics commission to provide annual training sessions to all local elected officials across the state on Oregon‘s public meetings laws, including the new serial communications law. The law allows third parties to conduct the training sessions so long as their materials are approved by the ethics commission.

The law went into effect in late 2023, but the ethics commission took until October 2024 to finalize rulemaking, and training sessions began in November for hundreds of freshly elected officials, including the 12 members of the new Portland City Council.

But the League of Oregon Cities now says the ethics commission‘s interpretation of the serial meetings law is a “gross misinterpretation” and is causing ripples of confusion and frustration all across Oregon’s cities.

Mulvihill wrote in her letter that the commission’s interpretation has led to “grave concerns” among elected city officials across the state.

“As Commission staff have begun training public officials themselves on Oregon’s Public Meetings Law, city officials from across the state began calling the LOC with grave concerns over the content of the training,” Mulvihill wrote. “For example, Commission staff have asserted in trainings that a mayor’s quote in a newspaper about city business could result in a serial meeting violation, that a councilor’s conversation with a city manager about city business could result in a serial meeting violation, and that an elected official’s conversation with a constituent about one of their concerns could result in a serial meeting violation.”

Mulvihill also wrote that the LOC would “consider all other avenues of legal recourse available to it in its effort to ensure the statutes enacted by the Legislature are being reasonably interpreted and enforced” and said she‘s asking all of its city members to no longer send their elected officials to ethics commission training sessions until a “formal opinion from the Commission can be obtained.”

Ethics commission executive director Susan Myers says the commission is “scheduling a meeting with representatives of the League of Oregon Cities to discuss the concerns raised in their letter.”

Before passing HB 4805 in 2023, members of Legislature raised questions about the potential complications stemming from a serial meetings law.

Two lobbyists provided information about the bill at the time, one from the League of Oregon Cities and another representing the Society of Professional Journalists. They explained to the Joint Committee on Ways and Means Subcommittee on General Government in a May 25, 2023, meeting what would be prohibited by the law.

“Say two of you are at lunch and talk about something, and then one of you goes and talks to a couple more people on this committee, and then soon effectively you’ve got a quorum,” explained SPJ lobbyist Tom Holt, adding that email threads also counted as serial communications.

Several state lawmakers raised concerns about the proposed serial meetings law, even though it would exempt the Legislature.

“How do you enforce that?” asked Rep. Greg Smith (R-Heppner). “If we‘re at lunch, and he and I talk, it’s outside of my control whether he talks to someone else.”

Smith later added that such rules would paralyze legislative business because “the basic tenet of being in this building is vote counting and building coalitions.”

Rep. Gomberg (D-Otis) laid out a hypothetical scenario: “Tell me how you think we might appropriately communicate with each other on this committee, for example, with a vote coming up. We bump into each other in the elevator or hallway or lunch room, and I talk to Rep. Smith, and the next day Rep. Smith talks to Rep. Chaichi and Rep. Reschke bumps into the two of us, and suddenly we‘ve got a quorum problem. What’s the right way to do that?”

Holt replied: “Of course, in a legislative context that kind of thing happens all the time. But in the context of a local government elected body, you have to be careful about avoiding those kinds of situations.”

Just one problem: The new Portland City Council functions as a legislative body, similar to a state legislature. It has five-member policy committees that hear and discuss legislation and refer policies to a vote of the full council.

Several Portland city councilors have told WW that the new state laws around serial meetings have made it much dicier, and legally murkier, to talk about potential legislation with their colleagues outside of public meetings.

The matter has come up during a handful of subcommittee meetings of the City Council, and other times in full council sessions.

Councilor Steve Novick tells WW that the ethics commission‘s rules have made it exceptionally difficult for him to communicate with his fellow councilors, especially those with which he serves on subcommittees.

“The purpose of the public meetings law is to prohibit backroom deals and have the votes counted in advance. That’s dramatically different from being able to explain to each other in advance, here‘s what the proposal is so they can start thinking about it,” Novick says.“The result has been that you have public meetings where councilors seem completely confused, and the public is wondering, why haven’t you worked this out in advance?”

The answer, Novick says, is because that’s sometimes “the first time we‘re hearing of it because we can’t discuss it outside of the context of a public meeting.”

The council’s Governance Committee discussed the new rules at an April 21 meeting, and the murkiness of what, exactly, a violation would look like.

Councilor Candace Avalos, who does not sit on the committee but was present to offer testimony, said the council was “really struggling to navigate how we can meet and when” and that there was a certain level of fear and “precarity” around the new rules.

Everyone seemed confused about what could constitute a violation, both in real time and retroactively. One scenario that came up: If three of five committee members talked about something that was simply within the scope of their work within the committee, and then something they discussed came in front of the committee two months later as an agenda item, would that be a violation?

City Attorney Robert Taylor told them that yes, that could be an issue. “That’s something they should avoid doing,” Taylor said.

Another scenario presented by Councilor Jamie Dunphy: Three members of the governance committee participate in a public forum where governance is discussed, and something that’s touched on comes in front of the council months down the road as a policy.

“That would be a problem,” Taylor said.

Dunphy replied: “I worry that this limits our ability to communicate with the public, too.”

City Council President Elana Pirtle-Guiney tells WW that the law and subsequent rules “have created a lot of uncertainty, and that makes it difficult for councilors to know what conversations they’re allowed to have and who they can talk with. This has all made it harder for us to do our work.”

Taylor, the city’s attorney, echoed that, saying the “new law and rule changes have created uncertainty, and the city is doing its best to navigate those uncertainties.”

City spokesman Cody Bowman says the city has been in communication with the League of Oregon Cities to address the problems.