Are Salem City Council votes predetermined prior to meetings?

It's an open question, the title of this blog post. But this is something people have been talking about for a long time here in Salem, Oregon, because it sure seems like important policy decisions often are voted on with very little discussion or debate between councilors at City Council meetings.

Today I emailed the message below to Kacey Duncan, the Acting City Manager, and other city officials. After last Monday's city council meeting, I figured it was time to ask some pertinent questions that revolve around whether the City of Salem is complying with Oregon's public meeting law.

The way I argue it in my message, there are only two basic possibilities.

Either (1) Votes on issues such as whether to allow or ban early sales of recreational marijuana aren't predetermined in advance of City Council meetings, in which case citizens have good reason to weigh in via emails, letters, phone calls, and public testimony about upcoming votes, or (2) Votes are predetermined and City officials are violating the public meeting law.

As I say in the message, if (1) is true then Councilors Brad Nanke and Jim Lewis owe me an apology when they said at last Monday's meeting that I spread "misinformation" and "paranoia" by altering people to the possibility of the council imposing a ban on early sales.

Actually, as I said in the public comment period, this is democracy in action -- citizens expressing their opinions to elected officials about an issue that means a lot to them. I woke up today feeling that I couldn't let Nanke and Lewis get away with their anti-public participation remarks.

Here's what I sent to City officials. I'll let you know what sort of response I get.

Mr. Duncan, as Acting City Manager I’ve got some questions for you about issues I raised during my testimony at the August 31 City Council meeting, and raised again in the email I sent to you and other City officials after the meeting. 

That email was mostly directed to Councilor Nanke, but I’ve gotten a brief non-responsive reply from him saying, "In the future I would suggest you contact city staff for clarification on any staff report.” So that’s basically what I’m doing here, even though my questions involve more than Mr. Atchison’s staff report about marijuana laws/policies.

 

I’ll try to be as clear as possible, framing my concerns and questions in a step by step process. I’ll boldface the questions to make them stand out more. 

 

(1) I’m still confused about Councilor Nanke’s contention at the meeting that the staff report, and also the Statesman Journal story on this subject, indicated that early sales of recreational marijuana through medical marijuana dispensaries was going to be approved by the Council on August 31, so there was no need for me (and others) to fire people up with requests to contact Council members and/or testify in person in favor of allowing early sales.

 

I’ve re-read the staff report and Statesman Journal story several times. Both say, in various ways, that a ban on early sales, and also “late” sales, will be considered by the Council at the August 31 meeting, as will other marijuana-related questions raised by Mr. Atchison. Yet Councilor Nanke accused me of spreading misinformation by communicating this fact to concerned citizens.

 

So, what are the portions of the staff report and Statesman Journal story which support an assertion that the question of banning early sales of recreational marijuana had been settled by the Council — in favor of early sales? 

 

This isn’t the meaning I get from the staff report. Rather, it says that staff will move ahead with ordinance changes to allow early sales unless the Council decides to institute a ban on such. The report doesn’t contain a staff recommendation on the marijuana-related policy questions. Instead, it says: “Staff recommendations are dependent on Council policy choices on the issues identified above.”

 

(2) Thus this raises the question of whether the Council had already made those policy choices at the time of the August 31 staff report, which was released to the public, along with the meeting agenda, on Friday, August 28. I’m not aware that the Council had previously discussed these choices, notably including whether early sales of recreational marijuana should be allowed, or banned.

 

So, prior to August 28, did the City Council hold an official work session or meeting where a vote was taken on allowing early sales? If this happened, please send me the minutes of the meeting. 

 

I’m pretty sure, but not 100% sure, that this didn’t happen. After all, if the Council already had given direction to City staff on the question of whether to allow early sales, why would the City Attorney ask for such guidance on this policy choice in the staff report? (This is a rhetorical question; no need to answer it.)

 

(3) Assuming that the question of allowing early sales was still officially unsettled prior to the August 31 Council meeting, I remain perplexed by Councilor Nanke’s strong assertion that all the people, including me, who asked the Council to permit early sales were operating under some sort of false assumptions or misinformation. 

 

Nanke emphatically implied at the meeting, if not outright asserted, that it should have been obvious that the Council was going to approve early sales, so there was no need for the public to weigh in on this via emails, phone calls, and testimony during the meeting’s opening public comment period.

 

So, how was this obvious? How would citizens know that the Council was going to approve the early sale of marijuana when this was raised as an open question in the staff report? More broadly, how would a member of the City Council, such as Brad Nanke, know in advance of the August 31 meeting that this was going to happen?

 

(4) This brings me to the question of “secret deliberations” and “pre-council meetings” that some citizen activists in Salem believe are happening. Understand, I’m not saying they are. I just want to bring this out in the open, as this question has been raised, and denied, by Councilor Bednarz and others during council meetings. 

 

I will accept that denial unless evidence arises that secret deliberations indeed are occurring.

 

However, I hope you understand how Councilor Nanke’s comments at the August 31 council meeting fuel the fire of suspicion that votes are hard-wired, so to speak, prior to a council meeting. Otherwise, some would say, how could Nanke argue that there was no need for citizens to urge councilors to allow early sales of marijuana since, according to him, there was no possibility that a ban would be passed by the City Council?

 

So, as Acting City Manager, do you or any other city officials (elected or appointed) know the outcome of council votes with certainty prior to the vote occurring in public at a council meeting? This may sound like a rhetorical question with an answer of “no,” but I’d like to have an answer to it given the longstanding suspicions that votes are predetermined prior to council meetings. 

 

(5) I believe I’m done with my questions. Time for comments and clarifications. You and other City officials are smart enough to see what I’m getting at. 

 

Either the policy question of allowing early sales of recreational marijuana was settled by the City Council prior to the August 31 meeting, or it wasn’t. Meaning, either a ban on early sales had been ruled out in advance of the meeting, or a ban was still possible if a majority of councilors was to vote for it.

 

I and others have been castigated by Councilor Nanke (along with his wife, on a recent KYKN program) for alerting citizens to the fact that a ban on early sales was being considered by the council, and would be voted on at the August 31 council meeting. 

 

Supposedly, Nanke and others said, we citizen activists should have known that a ban was impossible; it wasn’t going to happen; the Council wasn’t going to approve one. My question is: how were we supposed to know this?

 

My understanding of Oregon’s public meeting law is that it requires not only that votes on policy questions such as whether to allow early sales of recreational marijuana are to occur in public, the deliberations leading up to those votes also are to be made in public. 

 

Otherwise, what is the purpose of citizens contacting public officials, such as city councilors, urging that a certain policy position be adopted? What is the purpose of having public hearings, or public comment periods, if a city council already has decided in advance of a meeting what the outcome of a vote would be? This makes a mockery of public participation.

 

Yet this is what Councilor Nanke seems to have asserted at the August 31 council meeting. He said that it was wrong of me to urge citizens to weigh in on the question of a ban on early sales because, apparently, the vote on this question had been settled prior to the meeting.

 

My questions above are intended to get at the truth of Nanke’s remarks. 

 

Maybe the Salem City Council does meet secretly prior to meetings and predetermine what the vote will be on certain policy questions. In this case, you are in violation of the state’s public meeting law. 

 

If that isn’t the case, then Councilor Nanke owes me and other citizen activists an apology, because the question of whether the council would institute a ban on early marijuana sales was unsettled prior to the meeting. Thus it was entirely appropriate for me and others to alert people to the possibility that a ban on early sales could be approved by the council.

 

Understand: I realize that we all make guesses/predictions about how elected officials will vote. This happens with Congress all the time. Today the big news is that Obama has a veto-proof Iran deal, even though a vote in Congress won’t happen for weeks.

 

The issue is about transparency and citizen participation in public policy-making, the goal of Oregon’s public meetings law. 

 

What if the outcry last weekend had been on the other side of the early sales issue? What if the council had heard from hundreds of people opposed to early sales, and dozens of them came to testify about this during the public comment period at the August 31 meeting? What if some people brought amazingly persuasive arguments in favor of an early sales ban before the council?

 

Councilor Nanke’s remarks, which went unchallenged by anyone else on the council, strongly implied (and again, seem to have outright asserted) that there was zero possibility of the council voting to approve a ban.

 

And again I ask: how did Nanke know this? How would a member of the public know this? If this is true, and the outcome of a vote on early sales was predetermined one way or another, how is the council complying with Oregon’s public meeting law?

 

Feel free to contact me by email or phone if you have any questions, Mr. Duncan. I’m eager to get the City of Salem’s replies to my questions. 

 

Sincerely, 

 

Brian Hines

 

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Update: Here's the response I got back from Kacey Duncan. Not very satisfying as regards answering my specific questions, but at least he got back to me. My reading of his response is that it confirms my positions as described in this blog post.

 

Good Afternoon Mr. Hines,

 

The purpose of the staff report was to inform the Council of recent legislative changes pertaining to recreational marijuana and taxation and seek policy direction on whether to initiate potential code amendments or other available actions.  The final page of the staff report spoke to actions staff would take--unless directed otherwise--based on our interpretation of marijuana and taxation policy guidance provided at previous meetings of the Council.  I do know that every effort is made comply with Oregon's public meeting laws and no final decisions are made prior to the public meeting.

 

Thank you for the opportunity to respond.

 

Kacey Duncan

Interim City Manager

City of Salem, Oregon

Comments

[Carole]

You are absolutely correct Brian. Nanke said in the last City Council meeting - the vote was already take before the meeting began.

Thank you for trying to keep the City Council within legal bounds.

[Salemander]

Brian these are all reasonable questions and conclusions you present, and they deserve an answer, seeing as how this all took place with Nanke acting in an official capacity in an official government meeting on the record.

It's all about being professional and accountable and respectful. As a government official, you get crap slung at you, you don't sling it. If Nanke doesn't want to do that maybe he shouldn't be in that position.