City refuses to answer questions about hiring process

Jim Cornelius, News Editor | Last updated Nov 09, 2010 12:0pm0

The City of Sisters is refusing to answer questions raised by citizens about the process for hiring an economic development manager.

That process has drawn fire from critics, who complain of a lack of transparency and openness and argue that the hiring violated the city's contracting procedures as laid out in Ordinance 394.

Mike Morgan and Ed Protas both raised questions about the process and requested access to public documents regarding the hiring process, depending on the answers. The Nugget and The Bulletin also made public records requests regarding the city's communications with EDCO (Economic Development for Central Oregon), who handled the selection process for the position.

As per normal procedures, the city requested a $100 deposit and proffered an estimate of approximately $258 to provide the documents.

Morgan and Protas then boiled their query down to a couple of questions, asking for yes or no answers. Morgan asked: "Was there a board resolution delegating the council's powers and responsibilities as the contract review board to EDCO per paragraph 2.32.020 of the contracting ordinance?" And, "Did the city manager set selection criteria per 2.32.120 of the contracting ordinance?"

Protas asked, "City Manager Stein, are you aware of any physical communication from EDCO to the City of Sisters regarding the selection or recommendation, be it one person, or a short list of candidates for the position of Economic Development Manager?"

Stein referred all queries to City Attorney Steve Bryant.

In a letter to the city council, Bryant stated that, "It is important for the council to recognize that the questions posed effectively circumvent the public records process. The statute does not require the city to answer questions but does require that it provide certain documents. This is because the public documents best reflect the underlying facts, and the documents speak for themselves. In this instance, each of the questions can be answered through a public records request."

Bryant's argument drew an incredulous response from Morgan.

"We can't ask questions because to do so circumvents public record law; in other words, by asking questions we circumvent the city's ability to charge us a bunch of money to make us go away," Morgan said.

Protas said, "... they are banking on the hope that a demand for money (8 hours at $32.33/hr.) will effectively end the requirement of the city manager to answer the four simple questions originally asked - that has now been reduced to one simple question that can be answered with a yes or no. There can be no possible explanation for this behavior other than there is something that needs to be hidden."

Bryant defended the city's actions in the hiring of the economic development director:

"From our review, we can find nothing that the city has done that violated the public contracting statutes or the city code in hiring the economic development director. We also could find no basis for any litigation against the city relative to the hiring of the economic development director."

The attorney did leave the door open to a council decision to answer the questions raised by Protas and Morgan.

"While it will take some time and resources to answer the questions posed, my impression is that it would not be overly burdensome," Bryant wrote. "I have recommended to the city manager that she bring the questions to you to have you decide whether you want her to respond (and to do the same with any future questions related to council decisions or, alternatively, have the questioner to pose the questions directly to the council). Then it is up to you to decide, as a matter of city policy, how you want the city manager to use her time and resources and address these types of issues."

In his letter, Bryant also offered a defense for City Manager Eileen Stein's reluctance to respond directly to questions. Bryant noted that he had instructed that Stein wait for legal review of questions since critics have alleged violations of city ordinances and state law. He also noted that he has "recommended to city staff that they be circumspect in answering questions related to council decisions. That is the council's purview and you should have the opportunity to decide whether you want staff answering questions related to your decisions. Moreover, you should not have staff unilaterally making statements that bind the city and council based on staff interpretation of documents."

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Jim Cornelius, Editor in Chief

Jim Cornelius is editor in chief of The Nugget and author of “Warriors of the Wildlands: True Tales of the Frontier Partisans.” A history buff, he explores frontier history across three centuries and several continents on his podcast, The Frontier Partisans. For more information visit www.frontierpartisans.com.

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Attorney Bryant letter:

Council,

I appreciate you patience while I've been out of the office. I understand that several members of the public have e-mailed questions to the city manager pertaining to the hiring of the city's economic development director, and that they are awaiting a response.

As an initial matter I want the council to know that I had strongly recommended to the city manager that she not answer any of the questions posed until my office had an opportunity to fully review the situation. In this instance the questions were preceded by what was effectively a public records request, followed by allegations that the city violated state law and city code, plus a concern raised about possible litigation. Under those circumstances my office will always want to carefully evaluate the allegations before the city makes any response.

In terms of the questions posed to the city manager there are two aspects to this issue.

First, I understand that there was initially a public records request.

When the city advised the requester of the cost associated with responding to the request, the request was withdrawn and the city manager was presented with a series of questions from two different individuals.

It is important for the council to recognize that the questions posed effectively circumvent the public records process.

The statute does not require the city to answer questions but does require that it provide certain documents.

This is because the public documents best reflect the underlying facts and the documents speak for themselves.

In this instance, each of the questions can be answered through a public records request.

By asking questions rather than requesting records, the city is required to expend the resources it would have otherwise been reimbursed for to locate and review any applicable records (or at least I would recommend that they locate any applicable documents before answering questions related to those documents).

The city is then required to interpret the documents to answer the questions.

Second, while not a legal issue, there is also a policy issue to be addressed.

City staff regularly answer questions about city services and operations.

However, I have recommended to city staff that they be circumspect in answering questions related to council decisions.

That is the council's purview and you should have the opportunity to decide whether you want staff answering questions related to your decisions.

Moreover, you should not have staff unilaterally making statements that bind the city and council based on staff interpretation of documents.

The better process would be to pose these types of questions to the council and have the council decide whether it wants to answer the questions or have its city manager invest time and resources to answer the questions.

The council could, as a matter of policy, direct the city manager to answer all questions posed to her by the public.

However, I am sure you recognize the significant issues raised by that type of policy.

From our review, we can find nothing that the city has done that violated the public contracting statutes or the city code in hiring the economic development director.

We also could find no basis for any litigation against the city relative to the hiring of the economic development director.

While it will take some time and resources to answer the questions posed, my impression is that it would not be overly burdensome.

I have recommended to the city manager that she bring the questions to you to have you decide whether you want her to respond (and to do the same with any future questions related to council decisions or, alternatively, have the questioner to pose the questions directly to the council).

Then it is up to you to decide, as a matter of city policy, how you want the city manager to use her time and resources and address these types of issues.

Finally, it appears to me that the concerns raised relate wholly to the city's process. The council has the ability to revisit this issue and to initiate its own hiring process at any point. While you would need to work within the parameters of the existing contract, that contract does not preclude a supplemental process. If you are interested in this option I would be happy to discuss with the council how to proceed.

Let me know if you have any additional questions.

Steven D. Bryant

Attorney at Law

Bryant Emerson & Fitch, LLP

888 W. Evergreen Ave.

Redmond, Oregon 97756

541-548-2151