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