Reedy v City of Aurora

Filing 17

Opinion And Order. The court hereby ORDERS defendant to produce to plaintiff the minutes of the September 21, 2011, City of Aurora City Council Executive Session, and to produce those minutes within seven(7)days of the date of this order. Signed on 8/18/11 by Magistrate Judge John V. Acosta. (cib)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
MICHAEL REEDY,

ll-CV-588-AC
Plaintiff,

OPINION AND
ORDER

v.
CITY OF AURORA,
Defendant.
ACOSTA, Magistrate Judge
In this employment case plaintiff alleges defendant terminated his employment as chief
of police after his September 14,2010, testimony at a civil proceeding. Plaintiff contends his
testimony angered one or more of defendant's representatives and that defendant responded by
wrongfully terminating his employment on September 23,2010.
On August 3, 2011, the parties filed a stipulated motion for in camera inspection of
minutes from defendant's city council executive session. (Docket No. 12.) Defendant objects to
producing the minutes based on the public records disclosure exemptions contained in ORS
192.650(2) and .660(2), and on the attorney-client privilege. Plaintiff argues the minutes are not
protected from disclosure under either theory: the public records exemption does not apply to

Page I - OPINION AND ORDER

discovery in lawsuits, and defendant has not established that the attorney-client privilege applies
to the particular minutes at issue.
The parties submitted an audio CD for the court's review. The CD contains a single
audio excerpt in two different audio formats. The excerpt contains what appears to be a
complete audio' transcript of the defendant's city council executive session convened September
21,2010. The excerpt is 5 minutes and 39 seconds in length. The court has carefully listened to
the audio CD multiple times and fmds that nothing contained in the audio excerpt is protected
from disclosure in this case.
First, the executive session exception under ORS 192.660, upon which defendant relies,
does not apply here, because at no time during the session is the employment of any employee,
including plaintiff, ever discussed. ORS 192.660(2)(a) provides for an executive session by a
public body to "consider the employment of a public officer, employee, staff member or
individual agent." The only reference in the audio excerpt to any employment-related topic is
the mayor's reference to "Resolution 612," which resolution would delegate to the mayor
"employment authority" to be exercised subject to the city council's review. Thus, the statutory
exemption does not support defendant's position that disclosure is prohibited, because the city
council never discussed the employment of a public employee.
Further, and as plaintiff observes, the public disclosure exemption contained in the
statute does not control whether exempted documents are discoverable in lawsuits. ORS
192.650(2) states in relevant part: "If the disclosure of certain material is inconsistent with the
purpose for which a meeting under ORS 192.660 is authorized to be held, that material may be
excluded from disclosure. However, excluded materials are authorized to be examined privately
by a court in any legal action and the court shall determine their admissibility." No employment
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matter was discussed in the executive session, which means disclosure of the executive session
could not be inconsistent with the purpose of the meeting. Thus, there is no tension between the
purpose of the meeting and disclosure. For this additional reason, defendant's reliance on the
statute is misplaced.
Second; the attorney-client privilege does not apply because at no time during the
executive session is there any advice given by a lawyer about a pending or imminent lawsuit.
Further, at no time does any person present at the executive session identifY himself or herself as
an attorney, nor is litigation or legal strategy ever discussed. Thus, defendant cannot withhold
the executive session minutes under the attorney-client privilege. Nor can defendant prevent
disclosure using ORS 192.660(2), which provides that a public body may go into executive
session "to consult with counsel concerning the legal rights and duties of a public body with
regard to current litigation or litigation likely to be filed." Again, no discussion with legal
counsel ever occurred in the executive session. Thus, neither the attorney-client privilege nor
the statute are a basis for withholding disclosure of the executive session minutes.
Accordingly, the court hereby ORDERS defendant to produce to plaintiff the minutes of
the September 21, 20 II, City of Aurora City Council Executive Session, and to produce those
minutes within seven (7) days of the date of this order.
IT IS SO ORDERED.
DATED this

Itriy

of August, 2011.

V.ACOSTA
tates Magistrate Judge
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