The Board of Directors for Mid-Columbia Fire & Rescue (MCFR) is under investigation by the Oregon Government Ethics Commission for possibly violating an Oregon Public Meetings law during executive sessions that the Board held in regard to the lawsuit filed against the local firefighter’s union over logo use in 2019.
Ethics Commission Investigator Susan Meyers recommended the investigation in her preliminary review of a complaint alleging that MCFR Board President Dave Jacobs, along with other board members, formally decided to file the lawsuit against the union during executive session — a violation of an ORS 192.660 provision that dictates that governing bodies have to return to public session to take action or make a formal decision.
The law allows governing bodies — such as the MCFR Board of Directors — to discuss possible litigation, and even make tentative decisions, during executive session; but the governing body is required to let the public know the result of discussions that were held during executive session. Taking a formal vote in open session satisfies the requirement of the law, according to the Attorney General’s Public Records and Meetings Manual — even if the outcome of the vote only finalizes a tentative decision made during a discussion in executive session.
The complaint, filed by retired MCFR Division Chief Daniel Hammel on Feb. 3, 2020, references four executive sessions that the board held between June and September 2019, before MCFR officially filed a lawsuit in Wasco County Circuit Court against the Mid-Columbia Firefighters Association, IAFF Local 1308, on Sept. 4, 2019.
In the lawsuit, MCFR alleged that the union had wrongly adopted the district’s trademarked logo for its own use, and both parties asserted that they commissioned and used their own respective logos first. Both logos featured the same design elements, except one read “Mid-Columbia Fire and Rescue” while the other read “Mid-Columbia Firefighters.”
MCFR commissioned an inquiry into the matter in spring 2019, and concluded that the district sought the logo first. The district obtained copyrights for its version of the logo and sent the union an official cease and desist letter in June ordering them to stop using the logo, and when the union did not comply, MCFR filed a lawsuit in Wasco County Circuit Court on Sept. 4, 2019, asking that the union pay compensatory damages and the district’s legal costs.
The matter was privately settled in a closed-door session on Feb. 10, 2020, with the fire district dropping the lawsuit and the union agreeing not to use the logo. The MCFR Board of Commissioners formally approved the settlement during the public session of a meeting held after an executive session on Thursday, Feb. 13 — and it is the only decision related to the lawsuit that the board officially made during a public session.
MCFR asserts that major decisions made during the lawsuit — namely, deciding to send the cease and desist letter, to register a trademark for the logo, and to initiate the lawsuit — were made by Fire Chief Robert Palmer, not by the Board of Directors.
However, MCFR issued a press release in Jan. 29, 2020, that stated the decision to file litigation “was made by the board upon the advise of its counsel.” Jacobs’ attorney, Mark Sandri, responded in February and said that, “At no time did the board approve or decide the issue to file the lawsuit in question,” and that Palmer alone made the decision to file litigation, with advice from counsel. Regarding the January press release, Sandri said that it was “prepared in haste by the district counsel and was inartfully phrased.”
When asked by a reporter for comment on the Ethics Commission’s decision to pursue a formal investigation into the alleged violation, the MCFR Board of Directors released a joint statement, saying, “The members of the Mid-Columbia Fire and Rescue Board of Directors were disappointed to learn that the Oregon Government Ethics Commission (OGEC) decided to pursue a formal investigation into actions taken by the District, which we believe were in full accordance with applicable Oregon public meetings and ethics law. In reaching the decision to further investigate this matter, the OGEC was unwilling or unable to consider additional information we believe demonstrate that the Board and the District acted lawfully, which included the Board meeting minutes and declarations.”
According to Meyers’ recommendation, the Ethics Commission will request minutes from the four executive sessions in question as part of the formal investigation.
“We are confident the OGEC will find that the Board and the District’s actions, which were taken on the advice of counsel, were lawful and in full accordance with Oregon law,” said the Board.
If the Ethics Commission does conclude that the MCFR Board of Directors did make decisions in executive session, those decisions would be voided unless the board reinstates them in compliance with Oregon Public Meeting law. Additionally, the Ethics Commission could impose civil penalties not to exceed $1,000.
Oregon law (ORS 192.680) also states that if the Ethics Commission finds that an Oregon Public Meetings law violation was “the result of intentional disregard of the law or willful misconduct by a quorum of the members of the governing body,” or “the result of willful misconduct by any member or members of the governing body,” then the decisions made in executive session would be voided and the court could order “such equitable relief as it deems appropriate in the circumstances.”
Hammel, the retired fire chief who filed the complaint, said that he doesn’t care about what reprimand the MCFR Board receives beyond educating the board that they have to follow the law and ensuring that this doesn’t happen again. “They are elected officials and somebody has to hold them accountable and do the right thing,” he said. Hammel expressed frustration over the cost of the lawsuit — $88,000, according to records Hammel acquired via a public records request in January — paired with the fact that voters recently approved a fire district levy to fund new equipment. “This isn’t right,” said Hammel.
The board stated that they will fully cooperate with the Ethics Commission’s investigation, and that they “Look forward to presenting facts that, when properly considered, will demonstrate the board members and district’s proper actions.”