Talent council may have violated law concerning city manager's contract

TALENT — A group of Talent residents, including former City Councilwoman Darby Stricker, is investigating whether City Manager Jay Henry's contract is valid.

They say changes were made to Henry's contract during two executive sessions in September that violated public meetings laws.

Jack Orchard, a Portland lawyer who specializes in media law, agrees with their interpretation.

The City Council held executive sessions on Sept. 1 and 15 under Oregon Revised Statute 192.660(2)(I), which allows for performance reviews and evaluations of chief executive officers.

But Mayor Bill Cecil, who was then a councilman, said amendments to Henry's contract were discussed in the sessions.

"That doesn't sound like a performance review to me," said Orchard, who handles many public records and meetings issues for the Oregon Newspaper Publishers Association. "They are not evaluating his performance, they are setting his contract. That's not an executive session discussion."

"That's disappointing if we didn't do that correctly," said Cecil. "I try to be pretty careful when we do that today because we have the right to do things in executive session, but there are other things we shouldn't."

Additional concerns have been raised about how the executive session was conducted, including a lack of written minutes or recordings of the sessions, and the fact that no record was kept of a decision to alter Henry's contract following the Sept. 15 meeting.

Cecil said the council reached a consensus to modify Henry's contract in several areas but did not get that recorded in the minutes of the open session Sept. 15. He characterized the omission as an oversight and said the council has now devised a system to record executive sessions.

Oversight or not, Orchard said, "They violated the law."

"They have to have some record of what happened in executive session," he said.

Former Mayor Don Steyskal, who presided at the executive sessions, said the city had not been keeping minutes at closed meetings.

"We just didn't do it with the executive sessions because it was something that wasn't going to go out," said Steyskal.

Henry's contract was amended after the executive sessions to change provisions for severance pay and to drop clauses said to be covered elsewhere.

"There's no such thing as a consensus," said Orchard. "There's either a vote to do this or not a vote. The action has to be taken in open session."

"Every lawyer has his own opinion. No one has ever called us on stuff like that before," Steyskal responded when asked about the failure to take a vote in open session.

An addendum to the minutes — to record the directions given to the mayor on Sept. 15 — was prepared last week and signed by those at the session. Cecil said Thursday everyone present on Sept. 15 had signed the addendum.

"It's just a very simple thing that says we authorized the mayor to negotiate the contract," said Cecil.

Current council members Sherman Lamb, E.J. McManus and Teresa Cooke were on the council and attended the two September sessions. John Morrison and Bob Wilson also served on the council at that time and were present.

A discussion of public meeting laws was held at a recent council meeting at the request of new Councilwoman Diane Glendenning.

Glendenning also had called for an executive session that took place on May 4 to discuss possible contract violations by Henry. Following a 105-minute closed session, the council agreed by consensus — but without a vote — to set performance standards for the city manager.

Stricker, who ran against Cecil in November, said the council violated its own policies.

"We have a resolution that says all decisions are to be recorded," said Stricker. That rule has never been violated except for the September meetings, she claimed.

Stricker said the actions appear to be an attempt to cover up changes to Henry's contract. At the time the contract was changed, Henry was the subject of a civil-rights complaint filed with Oregon's Bureau of Labor and Industries by former employee Cheryl Nicolay. Nicolay withdrew the BOLI complaint in March, but her attorney said she plans to sue the city in federal court.

Henry's amended contract does not include a clause that was in his previous agreement that eliminated severance pay if he was convicted of a felony or misdemeanor involving suitability and fitness to continue as chief executive officer. Another provision in the contract provides for nonpayment of severance if the council finds the manager committed misconduct that could be characterized as criminal.

Stricker said a finding of violation by BOLI might have fallen under the deleted clause.

"It was a fearful decision based on what they knew of the investigation testimony," said Stricker. "The accusation had been made, and the investigation was well on its way."

Stricker said she filed a complaint with Glendenning over the contract and meetings issues so that the council could find a way to deal with it internally.

Cecil previously told the Mail Tribune the contract was amended to ensure stability in city government.

"When we asked why (the contract was amended), the answer is to give the city stability," said Glendenning. "Whose stability, the city's or Jay's?"

Stricker has met with Talent citizens Joi Riley, Michelle Glass and others to explore remedies, such as forcing the council to vote on Henry's contract amendments in open session.

"It's just a group of concerned citizens that are discussing options," said Stricker. "The concept of a formal coalition might be one of the options."

Stricker noted that state law allows a decision made in a meeting that violates the law to be voided.

The same statute provides for reinstatement of a voidable decision if the action is done in compliance with public meeting laws.

"Let them do it in the light of day," Stricker said.

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