Committee still striving for secrecy on Mirror Pond

The committee that’s trying to decide the future of Bend’s Mirror Pond held a meeting Tuesday that was open to the public.

That shouldn’t be an occasion to hand out medals. In this case, it initially felt like it.

But then the committee proceeded to renew its efforts to cultivate secrecy. Nobody’s getting a medal now.

A subset of the committee is going to hold private talks with Pacific Power to discuss the dam.

Those are the meetings that will attempt to get to the bottom of one of the crucial unanswered questions about Mirror Pond’s future: What is the dam’s future?

That answer goes a long way toward dictating if Mirror Pond stays Mirror Pond or returns to a more natural river.

The Mirror Pond committee’s plan is to have Bend Park & Recreation Director Don Horton, the district’s lawyer, Neil Bryant, and Bend City Councilor Mark Capell hold talks with Pacific Power. Nobody else would be allowed to watch.

The trio would then presumably return with whatever deal Pacific Power would agree to.

So, for one of the most crucial unanswered questions about Mirror Pond’s future, the deal is going to be decided behind closed doors.

It must be hard for some to remember that Oregon’s public meetings laws are about keeping the public’s business open to the public. At the same time, the law does recognize that there are some things that need a level of confidentiality — real estate transactions, some employee issues, litigation, trade secrets and more.

In Oregon, the instrument for such confidentiality is executive session. A governing body opens a public meeting. It then declares the reason it is going into executive session. It can then meet without the public, though the media can attend. It’s subject to the understanding that media representatives don’t directly report what goes on in executive session.

The media is there to improve its understanding of decisions so it can keep the public better informed. It is also there to be a watchdog — to ensure that what is discussed in executive session is appropriate.

The important thing to remember about Oregon’s law is that the nondisclosure requirement should be no broader than the public interest requires.

What the Mirror Pond committee is doing is going further. It is saying that those critical negotiations with Pacific Power should not be held in executive session. They should be held without any oversight at all.

The Mirror Pond committee’s aim should not be to preserve its privacy.

Source: The Bulletin ©2013

Dam owner to talk privately about Mirror Pond

The Mirror Pond ad hoc committee met Tuesday to select which of its three members will meet privately with Pacific Power to discuss the future of Mirror Pond.

The utility owns the Newport Avenue dam that created Mirror Pond and operates a hydroelectric facility at the site.

A Pacific Power representative has said publicly that the company wants the community to decide the fate of the pond, which is a dammed section of the Deschutes River. However, Bend Park & Recreation District Executive Director Don Horton said Tuesday the company is ready to speak more frankly behind closed doors.

“I had a telephone call from Pacific Power,” Horton said. “They do want to be more engaged in the process now.”

The small group that will meet privately with Pacific Power includes Horton, park district lawyer Neil Bryant and city Councilor Mark Capell. The six-member Mirror Pond ad hoc committee planned to hold its meetings behind closed doors, but stopped the practice after just one meeting when at least one lawyer said it violated Oregon public meetings law.

The committee includes two Bend city councilors, two park board members, Horton, Bend Community Development Director Mel Oberst, and as many as three citizens who have not yet been selected.

Officials have acknowledged the Mirror Pond ad hoc committee is a public governing body and, under Oregon public meetings law, must hold its meetings in public. On Aug. 21, City Attorney Mary Winters said the ad hoc committee’s Aug. 13 closed-door meeting should have been public. However, the small group that will meet with Pacific Power is less than a quorum of the six-member committee, so it can meet behind closed doors and without notice.

Approximately 14 members of the public attended the ad hoc committee meeting on Tuesday afternoon. Horton said he wants to have Bryant attend meetings with Pacific Power because of the legal issues involved. The subgroup will likely meet with Pacific Power in early September and then report back to the full ad hoc committee later that month.

Mirror Pond Project Manager Jim Figurski said Tuesday that several people contacted him regarding their interest in serving on the committee. Horton said the district will advertise the citizen openings on the committee, and set a two-week deadline to submit applications.

At this point, the primary issues the ad hoc committee should explore are Pacific Power’s plans for the dam and how to handle ownership of land under Mirror Pond, Horton said. Park district officials have said they believe the McKay family, early landowners in Bend, owns the land under Mirror Pond. However, the family has never paid property taxes on the land, and a title company asked to verify the McKays’ claims of ownership said it cannot do so. Horton said in July it would be nice for a public entity to own the land under Mirror Pond. On Tuesday Horton said the McKay family would expect to receive payment for the submerged land, although park district officials have not discussed specific figures with the family.

Horton said Bryant is working with the title company, with the goal of getting the company to provide title insurance if the park district purchases land under Mirror Pond from the McKays. “He’s thinking that they will, but he has not heard a definitive answer on that,” Horton said.

Horton also said Bryant and an attorney for Pacific Power are researching whether the water rights associated with the Newport Avenue dam — which are currently tied to power generation — could be transferred to a different type of use and allow for the dam to remain in place.

“If the water right can be transferred, I think it opens up a whole new discussion about what the future of the pond might be,” Horton said.

Oberst said if the water rights transfer to a different owner, the state might require the new holder to install fish passage at the dam.

The Mirror Pond ad hoc committee decided not to schedule its next meeting until after the subgroup meets with Pacific Power, so it can report to the committee.

Source: The Bulletin ©2013

Call for a vote on Mirror Pond

I’m sick of hearing about Mirror Pond and all the hand-wringing. What to do? What to do? Dredge or restore, restore or dredge, or leave it alone?

Let’s settle it once and for all time. Since ownership of the bottom of the river is not at issue, let’s quit wringing our hands and get on with it.

I believe it’s up to the people and not the Bend City Council to make the decision as to what to do, since it’s the people who are going to be paying for whatever is done.

Again, since ownership isn’t an issue, the city needs to put it on the ballot with three ways to vote. Restore, dredge, or leave it alone. Attach a levy for doing the work (dredging as opposed to restoring the river) to the ballot so everyone is aware of what it is going to cost either way. The vote will be the deciding factor.

Once a vote is taken and the levy is in place, go for it. But, for God’s sake, quit wringing your hands and spending endless time and money on countless studies and indecision.

Diana Hopson

Keep the doors open

We take back what we said about city of Bend officials. It’s not at all clear they have come to their senses about keeping meetings about Mirror Pond’s future open to the public.

In fact, they seemed to have looked for a way to keep the public out.

Back in July, the Bend City Council and the Bend Park & Recreation District Board met together to talk about the future of Mirror Pond. They both passed resolutions creating a Mirror Pond subcommittee “to select and refine a final preferred vision for the future of Mirror Pond.” The subcommittee was to include a couple of members from the City Council, a pair from the park board, some other government officials and three citizen members.

When time came for the first meeting, the public was not notified. No agenda was publicly available. Bulletin employees were told they could not attend because it was not a public meeting.

To make a long anecdote shorter, we protested, they acquiesced and told us future meetings of the subcommittee would be open to public. The next meeting was noticed for Tuesday, Aug. 27, at 3 p.m. at the park district headquarters.

This week, Bend City Manager Eric King and City Attorney Mary Winters came in to talk to the editorial board. King said he said he agreed with us that the meetings should be open.

Winters did say, though, that she believes that a subset of a governing body can engage in fact-finding investigations without it being necessary under Oregon’s public meeting law that those investigative meetings be open to the public.

Then on Wednesday, the council passed an amendment to the original resolution recasting the subcommittee as “an exploratory, fact-finding body to advise and assist project staff and the consultant team.”

It’s hard to know what to make of that.

It could be a move to enable the Mirror Pond subcommittee to fly under the legal requirements that the meetings be open.

We don’t expect that real estate transactions, such as negotiations with Pacific Power over the dam, should be required to be open to the public. Oregon’s public meeting law is designed to give exceptions for such matters.

But it would be outrageous if the amendment’s purpose was to game the public meetings law. We hope the council is not showing a passion for secrecy on Mirror Pond’s future. We’ll start to find out on Tuesday.

Source: The Bulletin ©2013

Test case for democracy

The publicly funded Mirror Pond Project — with its skewed polls and committees heavily weighted in favor of preserving this abiotic impoundment on the Deschutes River — is a test case for the viability of democracy in Central Oregon.

Recently, the “ad hoc Mirror Pond Committee” held a possibly illegal and certainly improper closed meeting. This is the latest outrage in a so-called public process that is anything but.

For too long this community has staggered under the influence of powerful special interests that use government to do their bidding. We finally saw a popular uprising against rule by fiat in Bend with the election last November of city councilors pledged to restore transparency.

Even so, our local power elite has chosen to revert to old habits, and the Mirror Pond Project has been turned into a classic case of political behind-the-scenes manipulation to arrive at a predetermined outcome.

The original Mirror Pond Project Web page announced that “ultimate decision making authority” would rest with the five-member steering committee. Then, on May 16, the Bend Park & Recreation District Board wrote, “the ultimate decision will be made jointly by the elected representatives of the Bend City Council and the BPRD Board.”

Now we learn that the new “ad hoc” committee (consisting of people from the old committees) will be “authorized to select a final plan for the future of Mirror Pond.”

The $200,000 that we are shelling out for this dismal project should, at least, buy us a vote.

Foster Fell

Source: The Bulletin ©2013

Mirror Pond committee sessions to be open

The Mirror Pond ad hoc committee is a governing body under state law and its Aug. 13 closed-door meeting should have been public, Bend City Attorney Mary Winters said Wednesday.

“We do want to clarify that that meeting that was held last week will be held again, noticed and held Tuesday,” Winters said. “This is a governing body under the public meetings law.”

Winters spoke at a City Council meeting after councilors voted to amend a motion they made in July to create the Mirror Pond ad hoc committee. The amendment Wednesday states the committee will work with city and park district employees and a consultant “as an exploratory, fact-finding body to advise and assist project staff and the consultant team regarding issues pertaining to the future of Mirror Pond.” The committee will also “engage Pacific Power to become part of the exploratory process.”

However, the council let stand the July 16 motions by the City Council and Bend Park and Recreation District board that created the ad hoc committee. The committee goal is to select and refine a final plan for the future of Mirror Pond, the landmark body of water along the Deschutes River in the heart of Bend. The July motions were based on a prototype written by parks Executive Director Don Horton, which called for the committee to “work with project staff and the consultant team to select and refine a final preferred vision (option) for the future of Mirror Pond.”

But a closed-door session of the ad hoc committee Aug. 13 raised the question: Did the committee violate Oregon public meeting laws by meeting in executive session and without prior public notice? After one private meeting, officials said future meetings will be public.

Wednesday, City Council approved the same motion adopted Tuesday by the Bend Park and Recreation District board of directors, said City Councilor Victor Chudowsky. Chudowsky is a member of the ad hoc committee, but was on vacation and did not participate in the meeting last week.

The Mirror Pond ad hoc committee includes two Bend city councilors, two park board members, Horton, Bend Community Development Director Mel Oberst and as many as three citizens who have not yet been selected.

In other business Wednesday night, city councilors heard an update on a collaboration between the city and Tumalo Irrigation District to look for opportunities to leave more water in Tumalo Creek. The city takes much of its water from the creek, and hopes to begin work this fall on a $24 million project to install new intake equipment and a pipeline from Bridge Creek to the city water storage facility. The Forest Service has indicated it will likely issue a permit for the project, although that process is not complete. Opponents of the project might also file a lawsuit to stop it, as they did last year.

The city can take up to 18 cubic feet of water per second from Tumalo Creek. Tumalo Irrigation District is the other major water user on Tumalo Creek, taking an average of 55 cubic feet per second at the height of irrigation season in August, according to the Oregon Water Resources Department.

As recently as the 1990s, a section of Tumalo Creek near the Deschutes River ran dry during the summer irrigation. This section begins after the irrigation district diversion. Currently, at least 10 cubic feet per second runs through this section, and the city and Tumalo Irrigation District established a goal of doubling that to 20 cubic feet per second. The Oregon Department of Fish and Wildlife set an optimal goal of 32 cubic feet per second of water in this lower section of Tumalo Creek.

It would likely cost $12 million to $14 million to complete a project to pipe an existing open irrigation canal, engineer Jon Burgi said Wednesday night. Burgi works as the irrigation district’s engineer through the firm David Evans and Associates, Inc. This project would allow the city and irrigation district to reach their goal of 20 cubic feet per second in the lower reach of Tumalo Creek, Burgi said. Matching grants are available for the project.

City councilors did not commit to provide any funding on Wednesday, although some said they are interested in supporting the effort.

Source: The Bulletin ©2013

Traffic may lessen if pond changes

I note there is considerable controversy surrounding the Franklin Avenue/Riverside Boulevard/Broadway Street construction activity. Listening to the pro vs. con discussion, I wonder why there is no discussion about the real need for spending over $1 million for improvements at all. I question why improvements in pedestrian safety and vehicle parking are any issue, because as Mirror Pond becomes a mosquito-ridden swamp or a raging river as some feel it should become, I don’t believe there will be much pedestrian traffic or vehicle parking in that area anyway.

Charles Porter

Source: The Bulletin ©2013

Secret nonsense

With so much flawed thinking, it is hard to know where to begin to assess the process that led to a secret meeting on the future of Mirror Pond.

As Bulletin reporter Hillary Borrud revealed, the Bend City Council and Bend Park & Recreation District created an ad hoc, joint committee in July to recommend a solution to Mirror Pond’s silting.

Foregoing the you-should-know-better advice we give our children, they got caught with their fingers in the jar of secret dealings.

Notwithstanding the apparent contempt for the public meetings law of the state, our ad local hoc-ers added insult to injury by thumbing their noses at the holy grail of transparency.

Fortunately, they came to their senses and decided to hold future meetings in the open, with public notice and access.

But the bad taste remains.

Doesn’t this make you wonder how capable or wise our leadership is when it can so badly stumble into predictable and completely unnecessary trouble?

One of the justifications for the secrecy is that land and property negotiations cannot be responsibly done in public.

But understanding that a properly constructed public process allows for executive sessions to conduct such negotiations in private, it’s hard to believe that this was the motivation.

Given the suspicions that secrecy cultivates, it is understandable why another motivation, born of a flawed process, has been suggested.

Let’s start with the basics.

Mirror pond is the iconic vista of downtown Bend.

Not that something else could not be in the future, but today it is a creature born of the Pacific Power & Light dam at Newport Avenue.

As backed-up ponds will do when fed by rivers, it is being transformed by silt.

What the city and park district face is less a complicated question than a white-hot political potato.

And what do stalwart leaders do with so hot a potato? They throw it to someone else.

Dredging the silt out of the ponds is, to a very sincere and very vehement group of our citizens, a wholly unnatural activity.

To not dredge is, to another group, to cave in to the Thousand Friends of Every Weed, Slug and Mud Beast found in and around the pond.

The great flaw in this has two parts.

The first was an exercise in junk science called an online survey.

It found the community split. Wow. Don’t you feel informed?

I would love to see our elected officials develop backbones, make decisions and then justify their views at the polls, but if you are going to use a survey as a deflective shield, at least make it scientific.

Spend a few bucks on this rather than on lawyers to defend your secrecy impulses, and do it right.

Second, let’s focus on the real issue, which is the dam.

No dam, no pond.

Conversely, no pond as we know it, no need for a dam.

That’s the key issue.

Personally, I think the pond should be preserved.

But, to spend millions of dollars on dredging, or even some lesser approach, when the pond could or should disappear, is the height of sentimental foolishness.

My real concern is whether the leaders who brought us to this impasse have the capacity to deal with a sophisticated issue that cuts across science, tradition, politics and culture.

Or, have they all along had a verdict that the evidence didn’t support? So they went to a secret advisory process.

Whatever, it doesn’t say much for them or their respect for us.

Source: The Bulletin ©2013

No more Mirror Pond secrecy

Bend city and park officials have come to their senses and decided to let the public in on meetings to decide Mirror Pond’s future.

Last week, they had made the outrageous decision to throw up a Great Wall of secrecy around the pond.

They changed their minds a day after The Bulletin protested.

Now they need to please keep it straight that government should not hide what’s going on from the public.

How did they get this so wrong?

Last month, the City Council and the park board formed a subcommittee to “select and refine a final preferred vision for the future of Mirror Pond.” The subcommittee also needs to sort out the dam’s future and the ownership of the land under the pond.

It held a meeting Tuesday at the Bend Park & Recreation District office to get started.

No public notice was provided of the meeting. No agenda was available.

When members of The Bulletin showed up, they were told they could not attend.

Don Horton, executive director of the Bend Park & Recreation District, said it’s not a public meeting.

Neil Bryant, the park district’s lawyer, was also there. We showed him some relevant statutes. We called our attorney.

One excuse they gave was that the subcommittee was not going to make a final decision. We showed them the minutes that say the committee is supposed to “select and refine a final preferred vision for the future of Mirror Pond.”

Bryant told us he had not researched the matter. On Wednesday, he prepared a confidential legal memo about the issue. Bend City Councilor Mark Capell, who is a member of the Mirror Pond subcommittee, called us after receiving the memo. He said future meetings would follow Oregon’s public meetings law.

Oregon’s law doesn’t insist that every single thing at a public meeting be done in public. There are exceptions, such as for legal and personnel matters and real estate negotiations. That gives the committee the ability to negotiate some sensitive issues privately.

It shouldn’t take a newspaper making a ruckus for city and park officials to know that the public should know what its government is doing.

Source: The Bulletin ©2013

Mirror Pond meetings to be public

The Mirror Pond committee authorized to recommend a final plan for the iconic body of water will hold its meetings in public, city councilor and committee member Mark Capell said Wednesday. The committee held its first meeting behind closed doors and without notice Tuesday, in a potential violation of Oregon public meetings law.

“I’m not sure who’s right,” Capell said Wednesday. “I think the best way to do this is just unwind, and start over.”

Capell said park district lawyer Neil Bryant advised the committee on Tuesday that its meetings must be public because the City Council and park district board voted in July to create the ad hoc committee. The committee was also authorized to select a final plan for the future of Mirror Pond, Bryant said.

“Neil and (City Attorney Mary Winters) say that probably the way the motion (to create the committee) was written, it says that we were going to recommend, which would make it public,” Capell said. “The rest of us thought our goal was just to get questions answered.”

Meanwhile, Bend resident Foster Fell said Wednesday that he sent a complaint to the Oregon Government Ethics Commission. Fell said he alleged the Mirror Pond committee violated state public meetings law, based on a report in The Bulletin. “I thought they should know,” Fell said. Fell ran unsuccessfully for a position on the Bend Park & Recreation District board in fall 2012.

Capell said the Mirror Pond ad hoc committee will meet in public and go into executive session when necessary. Executive sessions are closed-door meetings in which public officials can discuss specific matters such as legal defense, but Oregon law generally allows the press to attend. The press is prohibited from reporting on the discussions in these meetings.

The Mirror Pond ad hoc committee includes two Bend city councilors, two park board members, parks Executive Director Don Horton, Bend Community Development Director Mel Oberst, and as many as three citizens yet to be selected. Committee members said Tuesday they needed to meet out of the public eye to discuss real estate transactions and talk with Pacific Power about the Newport Avenue dam, which the utility owns. The dam created Mirror Pond. Wednesday, committee members said they started to discuss these issues on Tuesday and also talked about the legality of their closed-door meeting.

Jeff Manning, a spokesman for the Oregon Department of Justice, declined to say whether the committee’s secret meeting violated state public meetings law.

“We’re not going to weigh in on whether this is a public meetings law violation,” Manning said. “We just don’t do that. We’d need more facts. … As imperfect as it is, the primary vehicle of enforcement to a public records law, public meetings law violation is a lawsuit.”

Despite Capell’s statements Wednesday, not all committee members appeared ready to commit to public meetings.

“If it’s required to be an open meeting, we’re going to make it an open meeting,” Horton said Wednesday. “If it’s not, we feel there are a lot of issues that will be quicker and easier to resolve as a working group but not a decision-making body.”

Winters was out of the office Wednesday. Assistant city attorney Gary Firestone said he understoodBryant “was going to release something or take a position on it.”

On whether the committee can meet legally in private, Firestone said: “I can tell you that from my point of view, I do not have enough facts to venture an opinion and it would only be an opinion, essentially, until a court decides one way or another, or another body with jurisdiction.”

Bryant declined to say whether the Tuesday meeting complied with state law. “I’ve done some research and submitted some information to my client and that’s all I can tell you right now,” he said Wednesday. “You’ll probably hear something from them in the next 24 hours. There’s no scheduled meeting for some time.”

Capell and Horton said the committee Tuesday discussed when to select citizen members. They said the committee also decided to wait until it learned more about the future of the dam so it will know what type of expertise to seek. The committee also discussed sending a subcommittee to meet with Pacific Power. Horton said he will set up meetings.

He said the committee also discussed ownership of the land under Mirror Pond, but decided it should focus first on talking to Pacific Power. “We talked a little bit about water rights because if … even if Pacific Power decides that they’re not going to generate power anymore, the water right that exists is for the purpose of generating power and whether or not we can have that water right transferred for a different use,” Horton said. Attorneys are investigating whether there is a way to retain the water rights associated with the dam for a use other than power generation, he said.

That was all the committee discussed on Tuesday, he said.

Capell said the committee also discussed the legality of meeting privately. Prior to that meeting, committee members “thought we were OK (meeting privately)” because they believed they were only going to gather information and did not have a quorum of either the City Council or park district board, Capell said. “During the meeting yesterday, Neil (Bryant) went and got the minutes. And when he read them, we kind of went, ‘Oh.’”

Horton said he never intended for the committee to make decisions. He wrote the motion provided to city councilors and park district board members ahead of the July vote, but said the elected officials amended the motion before voting on it.

Horton said the City Council and park board will probably clarify the committee’s role at their respective meetings next week.

“I don’t think any of us intended for us to be a decision-making body, but reading the motion it seems like it is,” Horton said.

Park board Chairman Scott Wallace said the committee discussed questions it should answer about ownership of the dam and the land under Mirror Pond, and water rights associated with the dam. Wallace declined to explain what he meant by water rights associated with the dam.

He said officials have done a good job so far on the process to determine the future of Mirror Pond. “The process on Mirror Pond to date has probably been one of the most open public outreach things that we’ve done, that the community’s done,” Wallace said. “The meeting this week is perhaps not. … Well, it wasn’t open to the public so it’s one meeting out of however many we’ve had.”

“I have all the confidence that the process that we’ve laid out will get us to something the community can get behind and be proud of,” Wallace said.

Source: The Bulletin ©2013