Gov. Brown signs Executive Order for Immigrants and Refugee Rights. Last week Oregon Governor Kate Brown signed Executive Order 17-04 which strengthened the state’s commitment to protecting its immigrant, refugee, and religious-minority resident’s rights.  Currently, subject to enumerated exceptions, state law prohibits state and local law enforcement agencies from using agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws. ORS 181A.820.

The executive order re-states Oregon’s commitment to the current law and broadened it to include all state agencies (not just state law enforcement agencies).   The Order does not contain any new requirements for local agencies. 

The similarly related topic of sanctuary cities will be covered in more detail in an upcoming newsletter article.  In the meantime, we wanted to ensure our clients were aware of the law and that they understood the import of the new Executive Order.

Gov-Law Connection, Winter 2016 Edition
BEH's quarterly newsletter covers a wide range of topics including drones, body cameras and the Portland Arts Tax.
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The Trump Administration and Marijauana. With the arrival of President Trump and a new administration, some are wondering whether the change affects state medical and recreational marijuana laws.  First, it is important to remember that even under President Obama, marijuana remained a Schedule I drug under the U.S. Controlled Substances Act.  That is to say, marijuana was illegal at the federal level during the Obama administration and remains so today with the Trump administration.  The Obama administration effectively told states that have laws permitting medical or recreational marijuana growing and sales that it would not enforce federal law as long as the states followed guidelines that the U.S. Department of Justice issued.  Therefore, the question at this point is whether the Trump administration will reverse this policy and begin enforcing federal law.  At this time it is too soon to know.  President Trump has nominated Senator Jeff Sessions to be attorney general, and Mr. Sessions is on record as opposing the liberalization of marijuana laws.  However, Mr. Trump also said during the campaign that he believes it is something each state should decide for itself.  The bottom line is it is too soon to tell what will happen.  Until we have a better sense of where the new administration will go on this issue, local governments are advised to continue to follow state law with respect to medical and recreational marijuana.

Nine Oregon counties scored a victory in Linn County Circuit Court regarding the state's recently effective paid sick leave law. On December 8, 2016, Judge Murphy granted the countnies' motion for summary judgment that the law violates Article XI, section 15 of the Oregon Constitution. This provision (commonly known as the "unfunded mandate" clause) prohibits the State of Oregon from imposing a new program on local governments without allocation funding to local governments to pay for the program. It is very important to note that this decision only applies to the nine counties who prevailed in circuit court (Linn, Douglas, Jefferson, Malheur, Morrow, Polk, Sherman, Wallowa and Yamhill). It does not allow any other local governemtns to avoid complying with the new law, and other local governments should continue to treat the law as applicable to them. We will monitor this case as it goes to the Oregon Court of Appeals. If the Oregon Court of Appeals were to agree with Judge Murphy, then the ruling would likely apply to all of Oregon's local governments.

Nicita v. City of Oregon City LUBA No. 2016-045, LUBA contemplated this question: Is it sufficient to list only a hyperlink to a record item in the record index or table of contents? LUBA said no. The Board ruled that listing hyperlinks in the record index as the sole means of accessing relevant documents is insufficient, even when the links point to audio and video recordings of land use hearings (such as what might be found on a local government’s website, for example). Links can be included, but must be accompanied by discs containing recordings of whatever the links direct to.  Similarly, in Dodds v. City of West Linn LUBA No. 2016-071 LUBA ruled that including links to YouTube videos in the record index or table of contents is insufficient citing, among other things, that the problem lies in content being hosted on a third party’s website, over which control is limited or non-existent. In both cases LUBA stated that the appropriate remedy is to provide discs containing audio/video recordings, or note “difficult to duplicate” record items and present them at oral argument instead of including them in the record. 
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Court Ducks Central Issue in Public Meetings Case. The Oregon Supreme Court last week issued a decision in Handy v. Lane County, in which the central issue was whether a series of meetings among a quorum of a public body, whether electronically or in person, constitutes a “public meeting” for which notice, minutes, etc. are required.  The Court of Appeals earlier concluded that a series of communications between a quorum of a public body, in this case email and telephone calls over an 18-hour period, are a public meeting if the communications are for the purpose of making a decision or deliberating toward making a decision.  The Supreme Court overruled the Court of Appeals, holding that there wasn’t enough evidence to conclude that a public meeting occurred under any standard and, therefore, it wasn’t necessary to decide the issue. 

“If plaintiff’s evidence is not sufficient to permit a reasonable trier of fact to infer that defendants “met” in violation of ORS 192.630(2), even under the Court of Appeals’ interpretation of that statute, then any decision as to what that statute means could be viewed as unnecessary and perhaps dicta. Beyond that, we think it fair to say that the correct interpretation of the term “meet” in ORS 192.630(2) is far from clear.”

Beyond punting to the Legislature (which meets in January) the question of whether a series of discussions amounts to a “public meeting” under the Public Meetings Law, the Court did make one ruling that underscores the “Never Hit ‘Reply All’ Rule.”  The Lane County Board of Commissioners has five members.  In Handy, there was email evidence that two of them communicated with the county administrator whether to release a letter pursuant to a public records request.  A third Commissioner, Leiken, was included in the email but did not respond.  According to the court, the mere “passive receipt” of an email is not the same as “deliberation.”

Even if plaintiff can rely on a series of separate communications to establish that each member of a quorum met to decide or deliberate towards deciding an issue, he must show something more than Leiken’s passive receipt of the county administrator’s email to establish that Leiken deliberated whether to release the attorney’s letter. Without something more, Leiken’s mere receipt of the county administrator’s views on the public records request is not sufficient to permit a reasonable inference that Leiken decided or deliberated toward deciding that issue.

City Managers and County Administrators routinely email a quorum of the City Council or Board of Commissioners.  If the email involves more than what to order for lunch, a City Councilor or County Commissioner receiving the email is well-advised never to hit “reply all.” Individual discussions with an employee may or may not be a public meeting, but an email discussion among a quorum of the public body surely is.
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The Oregon Supreme Court recently ruled against a Portland Police Bureau practice of inspecting packages at Portland International Airport.  In 2012, Portland police and the U.S. Postal Service noticed a suspicious looking package in a mail sorting facility at the airport.  The police removed the package from the delivery queue and sought – and received – the addressee’s consent to open the package.  The package contained a large amount of cash, which lead officers to ask the addressee to consent to a search of his residence, which he did.  That search revealed a large amount of marijuana and the addressee was charged with intending to distribute a controlled substance.  At trial, the defendant successfully argued for the suppression of the evidence of the cash and the marijuana, which the Oregon Court of Appeals affirmed.  The state appealed to the Oregon Supreme Court, which upheld the court of appeals’ ruling.  The Oregon Supreme Court agreed that the Portland Police Bureau conducted an unconstitutional seizure of the package when it took the package out of the delivery queue, and in the absence of a warrant, the evidence gained from that seizure as well as the resulting search of the defendant’s residence needed to be suppressed. 
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Marijuana Dispensaries: Exceptions to the 1,000-foot Rule:  The “1,000-foot rule” is widely acknowledged as standard when planning for or analyzing the likelihood of placement of marijuana dispensaries in cities: Dispensaries must be located 1,000 feet from schools, daycares, and playgrounds.  An amendment to HB3400, which is now codified as Oregon law (Chapter 83, Oregon Laws, 2016, sections 28-31), allows dispensaries or recreational facilities within 500 feet of schools, if cities adopt an ordinance allowing it and meet certain conditions.  Cities can adopt ordinances allowing facilities to move within 500 feet of a school if the city determines that a physical or geographic barrier capable of preventing children from traversing to the school separates the medical marijuana dispensary from the school.  The 1,000-foot rule is still the gold standard when it comes to planning, but cities now have a bit more leeway when it comes to siting of dispensaries. This is potentially important in situations where existing zoning conditions may create a de-facto ban.
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Stun Guns and the Second Amendment  Historically, cases concerning the Second Amendment to the U.S. Constitution have involved firearms. However, the March 21, 2016, U.S. Supreme Court decision in Caetano v. Massachusetts has changed that limited view and brought what the court identified as “stun guns” into the Second Amendment analysis. The court used “stun guns” to refer to the class of weapons law enforcement generally categorized as electronic control devices, and held that Second Amendment protection should be given to such electronic control devices. Communities with outright bans on the private ownership or use of stun guns will want to discuss this issue with their legal counsel, as it would appear such bans may not withstand a legal challenge.
Caetano v. Massachusetts, 577 U.S. ___ (2016).

9th Circuit says feds can’t prosecute medical marijuana defendants complying with state laws. A federal appeals court has ruled that federal law prohibits the US Justice Department from spending money to prosecute people who are strictly complying with state medical marijuana laws. The prohibition, which denies the US Department of Justice the right to spend funds to prevent states’ implementation of their own medical marijuana laws, is set forth in a congressional appropriations rider, Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015). The case is United States v. McIntosh.
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ORS 222.125 allows a City Council to approve an annexation if all of the property owners and at least half of the electors in the area consent to the annexation.  This is the “double-majority” exception to the general rule that an annexation must be referred to the ballot.  In a recent case involving a “cherry-stem” annexation in Happy Valley, LUBA held that if the cherry-stem is a county right-of-way, the county also must consent to the annexation.  Interestingly, the “triple-majority” exception to the voting requirement in ORS 222.170 expressly excludes public right-of-way and other non-taxable property.  The case is Altamont Homeowners Association Inc. v. Happy Valley, LUBA 2-15-070 (March, 2016).

The Oregon Supreme Court recently resolved a long running dispute over a historic property in Lake Oswego. The property, called the 'Carman House', was built in 1856 and originally part of a pioneer homestead, created by one of the first Donation Land Claim grants in Oregon. The issue in the case was whether the current owner of the Carman House could demand removal of the historic property designation that Lake Oswego imposed upon a former owner. The Oregon Supreme Court ruled that ORS 197.772 only permits a property owner to seek removal of the designation if they owned the property at the time the historic designation was imposed.
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To all of our Oregon clients involved in land use, here is another example of just how tricky regulating “needed housing” can be under Oregon law.  This case is another in a long line of cases standing for the proposition that a city’s comprehensive planning and implementing ordinances must employ “clear and objective standards” within the meaning of ORS 197.307(4), and not be so ambiguous that they allow for discretionary decision making.  In this case, the standard at issue involved what options a developer had relative to a precise number of lots.  Notwithstanding the quantifiable nature of the standard, LUBA agreed with the petitioner that the standard was not clear and objective.
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Supreme Court Guts Recreational Immunity by David Doughman. Local governments often make significant portions of their property available to the public free of charge for recreational use.  To encourage such uses of property, the Oregon Legislature provided protection from lawsuits to property owners through what is commonly known as the legal concept of recreational immunity.  This spring, the Oregon Supreme Court gutted this protection when it ruled recreational immunity does not extend to city employees. 
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A local government is not liable under Oregon Tort Claims Act if it relies in good faith on a plausible interpretation of federal law.
The plaintiff in this case was the subject of a federal inquiry into whether he was in the U.S. illegally.  After he was booked into Multnomah County jail on a disorderly conduct charge, the federal government asked Multnomah County to maintain custody of the plaintiff to provide adequate time for Immigration and Customs Enforcement to assume custody of Mr. Cruz.  His disorderly conduct charges were ultimately reduced to a violation and the court ordered him released.  However, pursuant to the ICE request, jail officials continued to hold him. The plaintiff ultimately sued Multnomah County for violating ORS 181A.820, which prohibits Oregon law enforcement officials from using resources to apprehend someone whose only violation concerns federal immigration laws.  The Oregon Court  of Appeals found that, while Multnomah County’s actions were unlawful, the county’s duties under local and federal law in this instance were not clear.  Therefore, the court held that a local government is not liable under Oregon Tort Claims Act if it relies in good faith on a plausible interpretation of federal law.
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Gov-Law Connection, Summer 2016 Edition
BEH's quarterly newsletter covers a wide range of topics including new FSLA legislation regarding overtime, and recreational immunity.
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Pokemon Hang-on-a-Second...
The new Pokemon Go app uses your phone’s GPS and clock to detect where you are and make Pokemon characters appear on your phone screens, and it’s up to you to collect as many as you can. The Pokemon characters may be in public places such as parks, beaches and even bathrooms, and players have to go to the locations to find them. Some lawyers say the “augmented reality” game raises legal issues and public safety concerns, including possibly creating attractive nuisance, and/or challenging the First Amendment.
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The Ninth Circuit has granted immunity to officers sued on a claim of false arrest based on the exclusionary rule. 
The Ninth Circuit joined other circuits around the country in holding that the exclusionary rule is designed to protect defendants from improper prosecutions, but for qualified immunity probable cause purposes, the relevant inquiry is what information was known to the officer, not whether that information would ultimately be admissible. 
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Cities that receive federal funding subject to implied false certification liability under the False Claims Act…
Under a recent Supreme Court ruling, local governments that receive federal funding can now be sued for making false claims under the theory of implied false certification. The implied false certification theory relies on the belief that when a local government submits a claim for federal funding, it impliedly certifies compliance with all conditions of payment. In a unanimous opinion the Supreme Court adopted the theory with two caveats. “[F]irst, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.”
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Attention HR directors!
The Ninth Circuit court recently upheld a lower court’s decision that under FLSA unused health benefits must be considered as compensation and therefore included in calculations of an employee’s “regular rate” of pay for purposes of determining overtime.
The case is Flores v. City of San Gabriel.
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