Media Access to Council Executive Sessions
I’m writing this blog to share my take on the recent controversy regarding the City of Ashland’s decision not to allow a resident who claimed to be representing a news organization into the Council’s executive meeting and to explain my vote against the motion to direct staff not to explore protocol options at the January 31 study session.
This, like many issues faced by local government, is more complicated than some in our community might like to believe.
The Gist:
By state law, representatives of media organizations are able to attend executive sessions of city councils.
A local person requested access and was appropriately denied.
However, that request showed clearly that we need a protocol for such requests.
Staff asked the Council to allow them to start looking into what a protocol might be.
Mayor Akins took to social media with misinformation to convince people their democracy was under attack.
Council decided to direct staff to not move forward with changing a protocol that doesn’t exist and then directed them to gather certain contact information from anyone who requests access to an executive session.
The motion made no sense to me and failed to respond to the clear need to develop a protocol, so I voted against it.
We are still not clear how a representative of a media organization requests access and what criteria they must meet to secure that access.
The Details:
Meetings of elected bodies (like our city council) are required to be open to the public except in instances where executive sessions are held to discuss topics that need to remain confidential. Those instances are limited to issues, such as real estate negotiations, personnel discussions, union negotiations, information or records that are exempt by law from public inspection, and consultations with counsel about current litigation or litigation likely to be filed. ORS 192.660 governs executive sessions.
It is good that there are a very limited number of topics that can be taken up outside the public eye because it is true that democracy dies in darkness.
Executive sessions are required to stick to the agenda item and no decisions can be made in executive session. Direction can be given to staff during an executive session, but actual decisions have to be made in public meetings.
In every other state in the country, no one is allowed in those meetings except members of the elected body and the people (attorneys, city managers, etc.) who are necessary to the conversation. In Oregon, we allow representatives of media organizations to attend executive sessions, but they are not allowed to report on the discussions in those sessions.
Their presence ensures that the meeting stays on topic and no decisions are made. Media representatives serve an important accountability function for executive sessions in Oregon - and that’s a good thing.
The Oregon law allowing media representatives at executive sessions (ORS 192.660) was passed decades ago when media consisted of newspapers and TV news. It was easy to tell who was an institutional media representative and who was not.
Fast forward to mid-January in Ashland. Our Recorder, Melissa Huhtala (an elected official), received a request to attend the January 18 executive session from Mr. Silver, who writes opinion pieces for the Chronicle. The Recorder asked the City Attorney, Katrina Brown, for guidance given that the Chronicle is not a known media organization and Mr. Silver’s connection to it was also not clear.
By Oregon law, local elected officials can rely on the legal advice of their municipal attorneys in situations like this. Our City Attorney assessed the situation and determined that Mr. Silver was not a representative of an institutional media organization, in part because the Chronicle had filed dissolution paperwork with the State of Oregon last summer after roughly one year in operation. Our City Attorney advised the Recorder of her assessment and our Recorder refused to give Mr. Silver the Zoom coordinates for the executive session, which was to be held before the January 18 business meeting.
Mayor Akins gave Mr. Silver the coordinates privately and he was on the call as an attendee, but there were technological issues and the executive session had to be postponed until after the business meeting. A new zoom link was created for the new executive session and the recorder did not share that with Mr. Silver, so he was unable to attend.
Two days after the executive session, on January 20, a reporter from the Ashland.news also asked for information about how to attend executive sessions. The Council has not had any executive sessions since Ashland.news made their request, but it is my understanding that their representative has been notified that they will have access to future executive sessions as requested.
Upon learning that there had been two recent requests to attend executive sessions, I realized that I didn’t know the protocol the City follows to respond to a request to attend executive sessions. I asked staff to look into this and come back to Council with information about existing protocols and for a discussion about whether we needed to alter them in any way. They were already doing so having come to the same conclusion that we weren’t clear what the protocol should be.
Mayor Akins spoke against the Council having this conversation and when our City Manager put it on the agenda anyway, as is his right to do, she went out onto social media (NextDoor) and said:
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“Julie Akins Siskiyou North • 29 Jan
Transparency in government—help needed. On Monday at 5:30 pm the Ashland City Council, despite many arguments to reconsider, will be hearing from the City Attorney an argument to further limit transparency in Ashland on what I can only see as an assault on the free press and your rights to have a watchdog evaluating your government.
She will be asking the council to let her draft a “legitimate” list of press. And then she will exclude all those not considered “legitimate” from public processes which are clearly lined out by the state’s laws as important for press access such as executive sessions.
Press attends executive sessions to be certain public bodies cannot meet in private over items meant to be spoken of in public. The legislature did this to protect the public process and your rights.
It’s hard as a journalist not to take this personally. I got here because I reported on the city and saw a need for change. Now I’m your mayor and the people I serve are losing the transparency we feel is so critical.
And what’s more, I believe strongly that the attorney’s legal basis is significantly flawed. The law is clear: it says the news media shall have access. It says public bodies cannot legislate around that and it goes so far as to say if the public body attempts it—the members of that body can be held accountable.
Do not let democracy die in darkness. Join me in opposing this extreme overreach.
Ps: I tried to have this discussion for weeks in private bringing documents and rational arguments and got nowhere. This item was placed on the agenda despite my requests not to include it. This is why I reach out through social media. Otherwise I am screaming into the void. Please write letters.
We need to stop this.”
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Given the alarmist tone of her message, members of our community stepped forward to defend the right of media representatives to attend executive sessions. It was an appropriate response considering the information they were given.
Here is what is untrue or misleading in Mayor Akins’ social media post:
1. The City Attorney wasn’t putting forward an “argument to further limit transparency in Ashland” nor was she assaulting “the free press and your rights to have a watchdog evaluating your government.” You can read exactly what she was putting forward in the council communication for that study session.
2. “She will be asking the council to let her draft a “legitimate” list of press. And then she will exclude all those not considered “legitimate” from public processes which are clearly lined out by the state’s laws as important for press access such as executive sessions.” All of this is false. See above link for the council communication prepared by the City Attorney.
3. “…the people I serve are losing the transparency we feel is so critical.” No, they aren’t.
4. “Join me in opposing this extreme overreach.” It’s not an overreach at all, let alone an extreme one. It was just a question – and an important one at that.
Mayor Akins said: “The law is clear: it says the news media shall have access. It says public bodies cannot legislate around that and it goes so far as to say if the public body attempts it—the members of that body can be held accountable.” That’s correct, and I haven’t heard anyone say otherwise. But so too is the City Attorney’s reading of the law that says that the City does have the right to determine who is an actual representative of an actual media organization.
Unfortunately, Mayor Akins’ misrepresentation of the purpose of the conversation made it look like the City Attorney was trying to exclude legitimate representatives of the media. Nothing could be further from the truth and what’s more, this type of communication about City staff is unfair. It unnecessarily erodes trust and morale at a time when we have neither of these to spare.
Where We Need Clarification
What is true, however, is that we do not have protocols in place to respond to these requests. How people get their information has changed radically in the last five years and the request from Mr. Silver is the first request we have had from a person requesting access to an executive session who was not obviously a representative of a media organization. It showed us that we do not have protocols to ensure that people who come forward and request access are evaluated equally, fairly, and consistently through a protocol that respects both the letter and the spirit of this important law.
The request pointed out that we need clarity about:
Where the request should go - Should it be the Recorder, City Manager, City Attorney, Mayor, or Council? No one really knows.
Whether they need to request access a certain amount of time ahead of their first executive session in order for the City to have adequate time to assess whether they are a representative of a media organization. Clearly once they are approved their first time, they should be admitted without additional process for future meetings.
Who decides if the person is a media representative - We have a Council/Manager form of government, but the law indicates it is the elected officials’ responsibility to ensure that media representatives are allowed at executive sessions. It just doesn’t specify which elected officials are responsible for this determination.
Into the weeds on who decides: It would be easy to say that the Council should make the decision, but here’s the rub. Elected officials cannot make decisions at an executive session, so if someone walks up (or tries to Zoom up) and says they are a news media representative just before an executive session starts, the Council is unable to decide, in that moment, whether or not to let the person attend the session. The person is not likely to make that request earlier because executive sessions are noticed at the same time that regular business meetings are noticed. If a person sees an executive session announced and wants to request access, the Council will not be able to meet ahead of that executive session to determine whether they meet criteria necessary to be considered a media representative. Clearly staff will need to do the vetting unless we require that the request be received at least several weeks ahead of the executive session in order to get it on a Council agenda at a business meeting. But that doesn’t fit with the spirit of the law.
What are the criteria by which the request should be judged? Criteria would need to be pretty simple to comply with state law and should focus on the two questions – is this an institutional media organization and if so, is this person a representative of that organization?
What is the appeal process to Council if a person receives a denial that they think is inappropriate? There should be some way for this person to come before the full council in a regular business meeting to appeal the decision.
The Motion and My Vote
At the Council study session where this was discussed, a motion was put forward to “direct staff to make no changes to the present media protocol.” Then an amendment was offered to “move forward such that we do not proceed with a new Resolution or Ordinance but that we do provide staff direction that upon receiving a request to attend an Executive Session the individual provides name, phone number, email and affiliation if appropriate.” I voted for the amendment because that information needs to gathered as part of any protocol for these requests.
But I voted against the motion itself for these reasons:
1. We don’t have a protocol and we need one to ensure that people who request access as media representatives are treated equally.
2. Staff was asking for permission to move forward with creating a protocol having provided information about how Salem, Oregon City, and Cottage Grove handle these requests. Voting for this motion meant refusing to give staff the direction they (and the mayor and Council) need to navigate future situations like this.
3. The motion contradicts itself in that it says there will be no changes to a protocol (that doesn’t exist) and then with the amendment creates the beginnings of a protocol. It doesn’t make sense.
4. The information the Council decided to ask for isn’t a bad start, but we still haven’t clarified how that information is evaluated and who makes the decision about whether it is appropriate to grant the request.
During our conversation at the study session, Mayor Akins indicated that she had personally vouched for both organizations to have access and felt that that should have carried the day. Why she would have vouched for an organization (Ashland.news) that at that point hadn’t even requested permission to be in the meeting is a bit of a puzzle, but the point is that we shouldn’t have any protocol that includes elected officials “vouching for” or potentially “vouching against” a particular person making this request. It is particularly problematic because Mayor Akins is listed as the President of the Chronicle, which the Oregon Corporations Division has listed as being administratively dissolved as of 7/22/21
Everyone making a request to attend executive session should be treated the same way and made to meet the same requirements. If they meet those requirements, they should be admitted to the executive session. If they do not meet them, they should not be admitted. Period.
Legal Clarifications from the State of Oregon
The Attorney General’s Opinion (No. 8291 dated April 18, 2016) clearly states that “governing bodies are not required to accept a person’s mere assertion that they qualify as a representative of news media. Consequently, a policy requiring proof of media status can be consistent with the Oregon Public Meetings Law.”
The Attorney General’s 2019 Public Records and Meetings Manual clarified that governing bodies can put in place procedures to determine the legitimacy of a person claiming to be a representative of a media organization as long as those procedures do not violate the law itself. The manual also states, “Because no bright-line definition exists, we encourage governing bodies to consult with their legal counsel when receiving a request from a blogger or other non-traditional journalist to attend an executive session.”
In dealing with these requests, we need to balance the people’s right to know what their government is doing with the need for the government to have, in very limited circumstances, confidential conversations. There is a reason that the authors of the bill allowed representatives of media organizations to sit in. Their job as a watchdog brings accountability, but their integrity and need to protect their reputation as a respected news organization will keep them from disclosing sensitive information.
If we have no requirements, then anyone can attend executive sessions and they are essentially public.
The City’s Decision
The City Recorder and City Attorney behaved appropriately in the determination that Mr. Silver was not a representative of an institutional media organization. But, it is also true that it wasn’t clear to staff what information needed to be requested from Mr. Silver. Having no protocol in place doesn’t serve the City or those requesting access as media representatives.
The City Attorney found no issues with granting Ashland.news reporter, Holly Dillemuth, access to future executive sessions when her request was received on January 20, two days after the executive session in question. Ashland.news is an organization registered with the state, Ms. Dillemuth is a staff member and reporter in the organization, and Ashland.news reports on local news using trained journalists who take care to report accurately and without bias. No problem there.
Where We Are Now
If a person who wanted to request access to the next Executive Session asked me how they should go about making the request, I would have no idea who they should send the request to and what that request should include. And, I believe if the mayor, City Manager, City Attorney, Recorder, and all of the councilors were asked the same thing, we would have at least a handful of different answers. That’s not an appropriate process for something as important as accountability in local government.
Thank you for making it all the way through. Government by the people requires an investment of energy and time and I appreciate you taking the time to consider my thoughts.
If you have comments or questions, please contact me through my council email address: tonya@council.ashland.or.us