City nudity debate may be closed to public

ASHLAND — Plans to hold a closed-door City Council meeting to discuss the city's partial ban on nudity are drawing opposition from numerous corners.

The council is scheduled to hold an executive session on Sept. 22 to hear advice from City Attorney Richard Appicello about the legality of the current ban and its possible extension.

Under Oregon law, executive sessions are closed to the public. Members of the media can attend, but cannot report on the proceedings unless someone from the meeting discusses it afterward.

Council members agreed last week to discuss the nudity issue in an executive session.

Councilman Greg Lemhouse had asked the council to consider expanding Ashland's current nudity ban — which prohibits the display of genitals downtown and in parks — to include areas around schools.

Appicello told the council he needed to research legal issues about the ban. At least two council members, Eric Navickas and David Chapman, raised concerns that the existing partial ban may violate legal protections for free expression.

On Thursday, Ashland Transportation Commissioner Colin Swales sent a message to the council's public e-mail board saying he could find no provision under Oregon's laws on executive sessions that would permit the closed-door discussion of nudity.

"I can find nothing (excepting '... current litigation or litigation likely to be filed ...'), that would allow such an unnecessarily secret cover-up of this matter," Swales wrote.

In an e-mail sent to city officials and the Daily Tidings, Appicello said Oregon public record law exempts internal advisory communications from public disclosure. Communications between an attorney and a client — in this case, Appicello and elected city officials — also are exempt from disclosure, he said.

Attorney Laura Cooper, who gives advice to the Oregon Newspaper Publishers Association, said verbal discussions in executive sessions are supposed to relate only to current or likely litigation under Oregon law.

But she said Oregon law gives government officials greater leeway during executive sessions when it comes to written communications. Appicello can present councilors with written legal information and advice even without existing litigation or likely litigation.

"That's possibly why he's putting it in writing," Cooper said.

She said councilors would not be legally allowed to engage in verbal discussions of the nudity ban.

Resident Matt Warshawsky, also a member of the Transportation Commission, was less concerned about the legality of holding the nudity discussion in private.

"Forget the legality of it. What sort of impression do you think you are making to the public when you take a rather contentious item and discuss it behind closed doors?" he asked in a public e-mail sent to councilors.

The ongoing exchanges of e-mails prompted Mayor John Stromberg to weigh in.

He said Oregon's Constitution provides broader protections for free expression than most states and the U.S. Constitution. Several court rulings about local laws involving nudity and nude dancing may apply to Ashland's existing ban and the proposal to expand the ban.

"The City Council needs to understand the legal risks, but we don't discuss that in public because that would essentially give people information about the best ways to file lawsuits against the city," Stromberg wrote in an e-mail on the council's public message board. "This is the very reason why the Executive Session provisions exist in Oregon."

That reasoning didn't satisfy Ralph Temple, who has spoken to the council in the past on behalf of the American Civil Liberties Union.

He wrote his own e-mail saying he joined with several other residents in "protesting against an executive session based on protecting the city from exposing itself to a justified lawsuit. What is this — the Bush Administration?"

Council member Navickas also objected to the secrecy.

"I have to agree with the critics for allowing an executive session in this case," Navickas wrote in an e-mail on the council's public message board.

Vickie Aldous is a reporter for the Ashland Daily Tidings. She can be reached at 479-8199 or

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