The July 14 executive session of the Oregon Government Ethics Commission started just like any other. The chairperson read an admonition that reporters cannot “report on what you hear today.”
That’s typical. The unusual part came later.
Oregon has a quirky public access law that allows reporters to attend otherwise confidential government meetings. Like many of our state’s “sunshine” laws, the provision was enacted in the post-Watergate era, when public sentiment strongly favored the media keeping a close eye on the activities of government.
In Oregon, most meetings of public bodies must be open to all. Some sensitive topics, however, such as legal advice from an agency’s attorney, can be discussed behind closed doors, in what’s called an executive session.
Journalists are expressly allowed to attend, except in rare circumstances. The history behind the unusual access shows that lawmakers wanted reporters to gain “valuable background information for future reporting,” according to the Oregon Attorney General’s Public Records and Meetings Manual.
While the media may attend, public bodies may require attendees to keep the information confidential. Usually, they read a reminder at the start of the session, as they did July 14: Media representatives can be here, but you can’t report on this.
In Oregon, there’s one other important assurance of open government: Public bodies generally may not make any final decisions in executive session. Even if they reach an informal consensus in closed session, they must reconvene in public to cast the final vote. The idea is to allow Oregonians to know who voted which way and why. It informs the public and holds officials accountable.
And when officials violate the executive session provisions, there are consequences: They could get hauled in front of the Oregon Government Ethics Commission.
It’s against this backdrop that enterprise reporter Noelle Crombie contacted me on July 14. She called to tell me Ethics Commission members had taken a roll-call vote, behind closed doors, to launch a full investigation into former Oregon Secretary of State Shemia Fagan.
They can’t do that, can they?
Well, you learn something new every day.
It turns out the Ethics Commission, which oversees the appropriate use of executive session, including the prohibition on secret final decisions, operates under a statute that gives it authority to make a “final determination” … in secret.
Ron Bersin, longtime executive director of the Ethics Commission, said the commission was operating that way when he arrived in 2006.
I asked Bersin why not vote in public. The commission can’t, he said; the statute requires the vote occur in closed session.
And, he argued, the entire matter is public after the executive session ends – also unlike provisions for any other state agency or commission.
How would the average Oregonian ever know that? I asked.
He countered that people interested in the Ethics Commission would know to look at its website. There, an audio recording of the previously confidential executive session is posted after the meeting concludes. That audio, by the way, is found not under “public records,” “cases & complaints” or “resources” but rather under the “meetings” tab.
He said reporters also help get the word out.
But on July 14, according to the audio, reporters were specifically told at the start of the executive session that they may not report on the proceedings.
Was there a similar proclamation to them after the secret vote that the information was now public?
No.
Quite the opposite. Sophie Peel, the Willamette Week reporter who first broke the Fagan story, attended the July 14 meeting virtually. After the vote, she posted a question in the chat asking if the result could now be reported by journalists.
Instead of a simple yes, she was told instead the commission did not take media questions during executive session.
So, I asked Bersin how reporters would know the vote was public, given they are repeatedly cautioned they cannot report the contents of executive session.
I could practically hear his shrug over the phone line.
Reporters should do their homework, Bersin said. That information is in the law, he said, and reporters should read the statute.
The Oregonian/OregonLive reported the commission’s vote at 3:20 p.m. Friday, after Crombie was able to reach Bersin and clarify that we could reveal the contents of the executive session publicly. Peel also got the green light.
But a third reporter, Julia Shumway of the Oregon Capital Chronicle, didn’t receive the information until July 15, the next day.
Even though she attended the executive session in person, she was given bad information when she asked how to get the now-public preliminary report on the Fagan case. She followed up with a phone call Friday afternoon but did not get what she requested until the weekend.
Bersin later chastised Shumway for not emailing him directly that Friday afternoon, even though she said people at the meeting directed her otherwise.
Three excellent reporters, all of whom found the Ethics Commission process opaque — at best.
The Legislature should require the commission to vote in public. Posting audio on the commission website does not inform the public of its activities in any meaningful way. Expecting Oregonians to listen through the audio to find out the result of the vote is cumbersome, to say the least.
The Ethics Commission staff also could have and should have answered Peel’s simple and straightforward question in real time. Reporters can speak up in executive sessions.
The commission, which advises public bodies and public officials on best practices, should have an efficient and transparent way to inform reporters and Oregonians when it has voted to investigate public officials.
No doubt Bersin is a dedicated public servant. But he sounded frustrated during our conversation, as I was. “This is why I dislike calling you guys (the media) all the time,” he grumbled at one point. He retired last Nov. 30 but remains in office until his replacement can be found.
My vote, which I make openly so you can hold me accountable, is in favor of a successor who will care deeply about open and transparent communication with all Oregonians about the actions of the Ethics Commission.
