I am submitting this complaint to the Oregon Government Ethics Commission in the form of a post on one of my blogs because the complaint is lengthy owing to the complexity of this matter, which would have made it difficult to file the necessary information on the Commission's web site.
In addition, by consolidating all of that information in a single document, I felt this would make it easier for Commission staff to read and understand the issue at hand: whether Salem Mayor Julie Hoy engaged in prohibited serial communications involving the forced resignation of City Manager Keith Stahley.
This complaint is in three sections: (1) Grievance notice sent to City of Salem; (2) Response to grievance notice by City of Salem: (3) My comments on City of Salem response to the grievance. Due to the length of this complaint, I've inserted a page break after section (1). Simply click on the notice of the page break to read the rest of the complaint. There are a few formatting and font problems in the complaint, a result of copying and pasting from other documents, but the problems don't interfere with readability.
(1) Grievance notice sent to City of Salem
TO: Acting City Manager Namburi, Mayor Hoy, City Attorney Atchison, city councilors, and other city officials
FROM: Brian Hines
RE: revised Oregon Government Ethics Commission grievance notice
Please consider this my revised grievance notice to the notice I sent you last night. After reading a story in today’s Statesman Journal about Stahley’s resignation, I’ve added mention of a part of that story as it demonstrates that Mayor Hoy told Councilor Nishioka that a majority of City Council members wanted Stahley to resign, and edited some other parts accordingly.
In accordance with the policy of the Oregon Government Ethics Commission that before a complaint alleging a violation of the Public Meetings Law can be submitted, the public body at issue — in this case the City of Salem — has to be given 21 days to respond to a written grievance setting forth the facts and circumstances of the alleged violation, this email sent on February 16, 2025 is that written grievance.
Official FlashAlert communications from the City of Salem provide a primary basis for my grievance. Stories published by the Salem Reporter and the Statesman Journal also will be used to support this grievance.
The issue at hand is the recent forced resignation of City Manager Keith Stahley. It appears that Mayor Hoy violated Or. Admin. Code 199-050-0020 dealing with the prohibition of serial communications. However, there may have been additional violations of Oregon law and administrative rules.
I’ll use excerpts from these to make my case for this grievance, supplementing that information with information from two Salem Reporter stories, both by Joe Siess: “Mayor Julie Hoy set in motion events that led to Keith Stahley’s abrupt resignation” (February 13) and “Councilor Micki Varney breaks the silence about city manager’s resignation” (February 14), and a Statesman Journal story by Whitney Woodworth “Salem city councilor calls for transparency after city manager’s exit” (February 16).
This saga began at some undisclosed date when, according to the city, "Mayor Julie Hoy had individual communications with different members of City Council concerning Keith Stahley's performance and potential separation from the City.” The Salem Reporter learned that Councilors Micki Varney and Shane Matthews had talked with Hoy by phone. In addition a city communication says that Hoy "spoke on the phone with Councilor Linda Nishioka.”
So Mayor Hoy, a member of the City Council herself, spoke with at least three other councilors about Stahley (four, actually, since we can assume Hoy speaks to herself). The Salem Reporter has gotten "no comment" from Councilors Nordyke and Tigan about this, adding "Hoy and Councilors Deanna Gwyn, Irvin Brown, and Nishioka haven’t responded to emailed questions about when they decided the matter of Stahley’s resignation and to whom they communicated that decision.”
The current membership of the City Council is eight, as one seat on the nine-member council is vacant. Thus at a minimum, Mayor Hoy had spoken with half of the City Council (again, including herself) about Stahley’s performance and potential separation from the city via resignation or firing prior to Nishioka’s meeting with Stahley on February 7. And as noted below, the Statesman Journal story indicates that Hoy spoke with a majority of the council members.
Regarding that meeting: there is no evidence that prior to February 7, anyone on the City Council had expressed to Hoy a desire for Stahley to resign. In fact, according to the Salem Reporter, on February 2 Varney had told Hoy that she needed more information to make a decision either way, and Matthews told Hoy that he didn’t indicate support for Stahley’s resignation.
However, it is entirely possible that of the remaining six councilors on the current eight-member City Council, five (including Hoy) expressed a desire for Stahley to resign or be fired during the talks Hoy had with councilors. That would be a majority of the council. Since we know that Hoy spoke with three councilors, it seems likely that she spoke with all seven of her fellow councilors. In fact, the Statesman Journal story says tthis about a statement Councilor Nishioka released on February 15.
Nishioka said a discussion with Hoy led to her reaching out to Stahley. She said Hoy told her a majority of councilors believed Stahley should resign.
On February 7 Councilor Nishioka met with Stahley after meeting with Hoy. There’s no dispute that Nishioka asked Stahley if he would consider resigning. A key question that spurred this grievance is what Nishioka told Stahley.
In a February 9 resignation letter that followed his meeting with Nishioka that was included in the February 13 Salem Reporter story, Stahley said, in part:
I understand the desire of the Mayor and Council to move forward and have a fresh start. I hope that my resignation per Section 14: Severance (b) (3) of my contract will help to facilitate that.
I am submitting this resignation based on a meeting that I had with Councilor Nishioka on Friday February 7, 2025, where she represented that she was the duly authorized representative of the Mayor and a majority of City Council and requested that I tender my resignation.
Note that Stahley says that Nishioka represented herself as being both a duly authorized representative of the Mayor and a majority of the City Council. Since Nishioka is president of the entire City Council, her saying that she was a representative of a majority of the council clearly indicates that she’s speaking here about whether Stahley has the support of that majority to remain in that position.
Obviously Stahley was told by Nishioka that a majority wanted him gone, or he wouldn’t have resigned two days after his meeting with Nishioka.
The key point here is that the only way Nishioka could have known that a majority of the City Council wanted Stahley to resign or be fired was if Mayor Hoy had told Nishioka this in their meeting prior to February 7. This is precisely what the Statesman Journal story says, referencing a statement from Nishioka. The February 13 city communication says:
Due to public meeting law limitations, Councilor Nishioka was concerned that speaking with other members of Council about this issue would violate the law. She relied on her understanding of the situation after speaking with Mayor Julie Hoy.
So how would Nishioka be able to tell Stahley that she represented a majority on the City Council that wanted him gone? Because Mayor Hoy didn’t have the concerns about breaking Oregon’s public meeting law that Nishioka did. Hoy engaged in what’s known as prohibited serial communications under Or. Admin. Code 199-050-0020. It states:
A quorum of the members of a governing body shall not, outside of a meeting conducted in compliance with the Public Meetings Law, use a series of communications of any kind, directly or through intermediaries, for the purpose of deliberating or deciding on any matter that is within the jurisdiction of the governing body.
The prohibited methods of communication include in-person; telephone calls; emails; and such, including “any other means of conveying information.” Deciding whether to keep a City Manager on the job is within the jurisdiction of the City Council.
In his resignation letter, Stahley said that Nishioka told him that she represented a majority of the City Council and requested that he tender his resignation. This is strong evidence that Hoy engaged in a prohibited serial communication with members of the City Council and instructed Nishioka to tell Stahley that he should resign. Again, Nishioka said that she avoided talking with her fellow councilors about this, so it was Hoy who concluded through her serial communications that a majority wanted Stahley gone.
Legally, it doesn’t matter whether Hoy spoke truthfully with Nishioka about this. What matters is that Nishioka, putting herself forward to Stahley as a representative of a majority of the City Council, asked Stahley to resign. This action needed to take place at a public meeting, not via a series of private phone calls or other communications Mayor Hoy had with city councilors.
In the February 15 communication that was the city attorney’s statement concerning Stahley’s resignation, City Attorney Atchison said about Nishioka’s meeting with Stahley:
At that meeting, Councilor Nishioka asked Keith Stahley if he would consider resigning. Councilor Nishioka never said that she was City Council’s “duly authorized representative" or implied she was speaking on behalf of City Council.
However, what Stahley said in his resignation letter directly contradicts what the city attorney claimed in the quotation above.
This is one reason I’m initiating an inquiry by the Oregon Government Ethics Commission: to resolve the question of whether Mayor Hoy and possibly other city officials engaged in prohibited serial communications that caused, in Stahley’s view, a request by a majority of the City Council for him to resign — even though no public meeting of the council had been held regarding this issue.
I want to note something misleading in the February 15 statement by the city attorney. Atchison said:
Stahley’s resignation letter stated that Nishioka said she was “the duly authorized representative of City Council" acting on Council’s behalf. That language is straight from Stahley’s employment agreement concerning severance benefits. Stahley used that exact language apparently because it was consistent with the language in his employment agreement concerning his eligibility for severance, not because Nishioka ever uttered those words.
There are several problems with this assertion by the city attorney. First, the quote Atchison shared, the part in quotation marks above, isn’t in Stahley’s resignation letter, which actually said:
I am submitting this resignation based on a meeting that I had with Councilor Nishioka on Friday February 7, 2025, where she represented that she was the duly authorized representative of the Mayor and a majority of City Council and requested that I tender my resignation.
I’m virtually 100% sure that this language isn’t in Stahley’s employment agreement. So the city attorney was wrong when he claimed that Stahley was echoing the language in the employment agreement. Second, the city attorney doesn’t know why Stahley said what he did in his resignation letter. That’s why Atchison included “apparently” in his conjecture that Nishioka never said that she was the duly authorized representative of the Mayor and a majority of the City Council. Basically, the city attorney is accusing Stahley of lying.
Here’s a much more likely reason Stahley said what he did: it was the truth as he remembered it from the meeting with Nishioka that occurred just two days before he wrote his resignation letter.
Lastly, I want to share Councilor Varney’s public statement about the resignation of Keith Stahley that appeared in a February 14 Salem Reporter story by Joe Siess, “Councilor Micki Varney breaks the silence about city manager’s resignation.” It provides a valuable perspective from the only member of the City Council who has issued a public statement about this disturbing action that, as argued above, seems to violate Oregon’s public meeting law.
“I write this feeling great sadness and regret at what has transpired over the past week. It has eroded the trust and transparency we as a Council have been trying to rebuild over the past year.
The public has every right to, and deserves, an explanation of the events leading up to and following the city manager’s submission of his letter of resignation. The public has a right to demand that their elected officials follow the rules and statutes they all took an oath to uphold when they took office.
I believe that trust matters and respect is the currency of trust. I also believe that my duties, as your elected city councilor, include the sharing of concerns when warranted, and in a timely manner.
Transparency is a standard you have every right to expect of your government.
Members of the public and members of the Council deserve answers. The manner in which the city manager’s resignation occurred is untimely and unacceptable. I believe we all must continue to ask questions in order to discover exactly what actions were taken, and by whom and why, between the timing of the recent audit report and the abrupt resignation of the city manager earlier this week.
I am unaware of what really happened over the past few days, and I believe it is essential that we understand the reality of how we ended up in the situation we now find ourselves. Namely, we are now without a city manager while beginning the city budget setting process for the upcoming fiscal year.
There are many reports circulating around the various media speculating what may or may not have occurred. This suggests that either the facts were not provided to the media, or someone, or someones, misreported the facts to purposefully shape the larger narrative for a desired outcome.
It is apparent the city manager accepted a request to resign from a representative of the whole or (at least as stated in the resignation document), a majority of the council. However, no single city councilor – or mayor – has the authority to ask for a resignation absent a vote of the entire council. In this instance, this never occurred.
I, and to the best of my knowledge many of my fellow councilors, were not aware of what was transpiring during the week prior to the city manager’s resignation. We were following the rules which specify that we do not communicate with one another regarding city matters outside of a public meeting.
I was shocked to hear of the city manager’s resignation.
I am looking forward to being able to fill in many of the gaps as more facts are brought forward. I urge patience as more information is gathered.
In conclusion, I ask our city and community to remain engaged and participate in the steps ahead of us. I recognize the need for trust-building and truth-telling, and that is precisely why I am sharing my concerns with you in this message.
Together, I believe we can and will move Salem forward, but it will take all of us working together to be able to achieve that objective.”
— Brian Hines
(2) Response to grievance notice by City of Salem
To: Brian Hines and Elliott Lapinel
CC: Oregon Government Ethics Commission
From: City of Salem
Re: Public Meeting Law Grievances
Pursuant to ORS 192.705, the City of Salem acknowledges the public meeting law grievances filed by Brian Hines on February 15, 2025 (revised on February 16, 2025) and Elliott Lapinel on February 14, 2025. Both grievances allege that the Salem City Council engaged in an illegal serial meeting on or before the Council’s February 10, 2025 executive session. In addition, the Lapinel grievance alleges that the City Council violated OAR 199-050-0040(3)(d)(B) by failing to announce in open session, prior to the February 10, 2025 executive session, the specific statutory provision and appropriate subsection and paragraph authorizing the executive session, as well as a general description of the statutory authorization.
As further explained below, pursuant to ORS 192.705(2)(b)(B), the City admits that it did not announce the specific statutory provision at an open public meeting before the Council entered its executive session on February 10, 2025, because such a statement is not legally required. Accordingly, the City denies that this constituted a violation of the public meeting laws.
In addition, pursuant to ORS 192.705(2)(b)(A), the City denies the factual allegations that the Council engaged in a prohibited serial meeting, provides the facts and circumstances it believes occurred here, and explains why those facts and circumstances do not amount to a violation of the public meeting laws.
A. Failure to Announce Statutory Basis for Executive Session
The Salem City Council held a meeting on February 10, 2025. The meeting began with two executive sessions that started at 5:00 pm and 5:30 pm, respectively. As is the case with executive sessions, neither were open to the public. The portion of the Council’s meeting that was open to the public began after the second executive session concluded.
Because the executive sessions were held before the business meeting, and no meeting was open to the public before the executive session, the Council was not required to make the announcement mentioned in OAR 199-050-0040(3(d)(B). Rather, pursuant to OAR 199-040-0015(2), the Council was merely required to provide the announcement via a properly issued meeting notice. Specifically, the regulation provides, “If an executive session only will be held, or if the executive session precedes a meeting open to the public, the announcement must be made in a properly issued meeting notice.” The City announced the executive session, and the statutory basis for the executive session, in its meeting notice and agenda for the February 10, 2025 meeting. A copy of the agenda is available online at:
https://salem.legistar.com/View.ashx?M=A&ID=1233165&GUID=5B5B4FA0-CAC7-4338-A80A-59A6E9000090 .
Therefore, no violation of the public meetings law occurred as alleged in the grievance due to a failure to publicly announce the statutory basis for the executive session in an open meeting. To that end, while the City admits the facts alleged in this part of the grievance, it denies a violation of the public meeting laws occurred.
B. Illegal Serial Meeting
The City denies the facts and circumstances outlined in the grievances related to an alleged serial meeting. Specifically, the City denies that any decision or deliberation towards a decision was conducted by a quorum of the City Council through the use a series of communications.
The City has reached this conclusion by reviewing written information that was available during the period allowed to form a response to the grievances as well as confirming the facts outlined below with individual members of the City Council.
The City believes the following facts and circumstances occurred:
- Mayor Julie Hoy had individual communications with different members of the City Council concerning the former City Manager’s performance and potential separation from the City.
- The Mayor sought and received advice from the City Attorney prior to engaging in such discussions. The City Attorney advised the Mayor that that one-on-one conversations with other members of Council did not violate the state’s public meeting laws or constitute “serial meetings” as long as the Mayor did not serve as a conduit to allow a quorum of the Council to deliberate towards or make a decision.
- Except for possibly one discussion, the Mayor refrained from sharing the views of councilors with other councilors during these conversations. Rather, she explained her concerns and asked the councilors with whom she spoke about their feelings towards the former City Manager.
- At least some of the councilors who responded to Mayor Hoy explained that they did not have enough information to form an opinion and needed further discussion on the matter.
- The last councilor with whom the Mayor spoke was Council President Nishioka.
- Council President Nishioka has publicly stated that the Mayor informed her that a majority of councilors believed the former City Manager should consider resigning.
- This is the only discussion in which the Mayor appears to have possibly shared the views of other councilors, however, that discussion was just between two members of the Council, which is less than the five members necessary to form a quorum.
- Language used in the former City Manager’s resignation letter related to resigning at the request of a duly authorized representative of the City Council mirrored language in his employment contract that was necessary to make him eligible to receive severance benefits. If the former City Manager resigned on his own accord, he would not have been eligible under his employment contract to receive severance benefits.
- Council President Nishioka denies that she informed the former City Manager that she represented the Council or was acting on the Council’s behalf. She further denies that she asked for his resignation or that anyone asked her to ask the former City Manager to resign.
- Despite the fact that the former City Manager submitted his resignation letter with no formal request from Council for his resignation, the City Council voted to accept the resignation and deem that it was made at the request of Council. By doing so, the Council was able to provide the former City Manager severance benefits under his employment agreement. In addition, under his employment agreement, the former City Manager had to sign a release of liability to the City in exchange for the severance payment. The Council vote to deem that the resignation was made at the request of the Council did not, nor was it intended to, suggest that the Council collectively asked for the former City Manager’s resignation.
Based on these facts and circumstances, no violation of the state’s public meeting laws related to serial meetings occurred. Pursuant to ORS 192.620, all “meetings” of the Salem City Council must be open to the public. ORS 192.610(7)(a) defines the term “meeting” to mean, “the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter. A meeting may be “convened” if a quorum of the Council uses an intermediary to communicate among participants. See ORS 192.610(1)(d). This is commonly known as a “serial meeting.”
State regulations further define this limitation. Specifically, OAR 199-050-0020(1) provides that “a quorum of the members of a governing body shall not, outside of a meeting conducted in compliance with the Public Meetings Law, use a series of communications of any kind, directly or through intermediaries, for the purpose of deliberating or deciding on any matter that is within the jurisdiction of the governing body.”
Taken together, the statutory and rule language prohibit serial meetings only when a quorum of the council utilizes a series of communications through some sort of intermediary, such as a person, to deliberate towards or make a decision.
A quorum is defined by state law as “the minimum number of members of a governing body required to legally transact business. In the absence of a statute, ordinance, rule, charter, or other enactment specifically establishing the number of members constituting a quorum, a quorum is a majority of the voting members of the governing body.” OAR 199-050-0005(9). Pursuant to section 14 of the Salem City Charter, a quorum of the Council is “a majority of the council.” Since the Council consists of nine members, a majority, and therefore a quorum constitutes five members. (Five members remains the number needed for a quorum even though there is currently one vacancy on the Salem City Council.)
Under state law, an intermediary is “a person who is used to facilitate communications among members of a governing body about a matter subject to deliberation or decision by the governing body, by sharing information received from a member or members of the governing body with other members of the governing body.” OAR 199-050-0005(7). By this definition, sharing information with just one member, rather than multiple members, would not constitute a person being an intermediary.
Taken all together, in order for the Mayor to have served as an intermediary, and therefore create a serial meeting, the Mayor would have had to share information about councilor views amongst a quorum of the Council. Here, based on the facts and circumstances set forth above, at no time did five councilors utilize the Mayor as an intermediary to deliberate towards or make a decision related to the former City Manager’s employment with the City. Even if it is true that the Mayor informed Council President Nishioka that a majority of the councilors believed the former City Manager should consider resigning, thereby causing deliberations to occur between the Council President and the Mayor, such information would have been shared by the Mayor with only one member of the council, well below the quorum level of five or the multiple members required by the definition of intermediary.
As a result, based on this information, the City has concluded that no serial meeting occurred, and as such there was no violation of the state’s public meeting laws.
Chad A. Jacobs (he/him)
Beery Elsner & Hammond, LLP
1804 NE 45TH AVENUE
PORTLAND, OR 97213
d (503) 802-0011 | t (503) 226-7191 | f (503) 226-2348
www.behlaw.com
(3) My comments on City of Salem response to the grievance
Since my grievance only addressed the issue of serial communications engaged in by Mayor Julie Hoy, and not the issue of a public notice failing to be issued for an executive session by the City Council regarding the resignation of Keith Stahley, these comments pertain only to the serial communications section of the City of Salem response.
First, while the City denies a prohibited serial meeting occurred, the statement by the City below is telling. I've added the boldfaced emphasis:
The Mayor sought and received advice from the City Attorney prior to engaging in such discussions. The City Attorney advised the Mayor that that one-on-one conversations with other members of Council did not violate the state’s public meeting laws or constitute “serial meetings” as long as the Mayor did not serve as a conduit to allow a quorum of the Council to deliberate towards or make a decision.
But that's exactly what the Mayor did. She served as a conduit to allow a quorum of the Council to deliberate towards or make a decision -- the decision being whether City Manager Stahley should consider resigning. As Councilor Varney said in her statement that I included in my grievance:
It is apparent the city manager accepted a request to resign from a representative of the whole or (at least as stated in the resignation document), a majority of the council. However, no single city councilor – or mayor – has the authority to ask for a resignation absent a vote of the entire council. In this instance, this never occurred.
The City acknowledges that the Mayor spoke individually with other members of the City Council about her own concerns about Stahley and asked those members about their feelings toward Stahley. After these communications, the City acknowledges that Mayor Hoy told Councilor Nishioka (the Council president) that "a majority of councilors believed the former City Manager should consider resigning."
(Note: I attempted to confirm that four councilors who had not submitted public statements about Stahley's resignation had spoken with Mayor Hoy about whether he should consider resigning, but the City Attorney told them not to respond to me. This doesn't speak well about the City's commitment to openness and transparency. Details are in a blog post: "
City Attorney stopped me from asking questions about Stahley's forced resignation.")
Councilor Nishioka then met with Stahley, after which he submitted his resignation. Thus it is clear that Mayor Hoy served as a conduit to allow a majority of the Council to make a decision regarding whether Stahley should consider resigning, which the City of Salem admits constitutes an illegal serial meeting.
Meaning, Mayor Hoy spoke individually with members of the City Council, then communicated what she had learned -- that a majority of the Council wanted Stahley to consider resigning -- which allowed a quorum of the Council to make a decision regarding Stahley's status as City Manager.
It should be noted that this case is unusual in that it is an instance of an illegal serial communication where the public body, a City Council, didn't need to meet in order for the purpose of the serial communication to be fulfilled.
That is, it seems clear that Mayor Hoy wanted Keith Stahley to resign. All the Mayor needed to do to make this happen was talk with a quorum of the City Council individually, tell the President of the Council that a majority of the Council wanted him to consider resigning, then have the Council President meet with Stahley, after which he resigned.
While some might call this hard-nosed politics, what the Mayor did is prohibited by Oregon law, since Mayor Hoy conducted what should have been a public process in private. Mayor Hoy could have raised her concerns about Stahley in an executive session of the City Council. Instead, the Mayor orchestrated Stahley's resignation via a prohibited series of serial communications. The Council only met to discuss Stahley's resignation after he had already resigned following his meeting with Councilor Nishioka.
Second, that meeting involves an area of dispute between Councilor Nishioka and Keith Stahley. The City's response to my grievance says:
Council President Nishioka denies that she informed the former City Manager that she represented the Council or was acting on the Council’s behalf. She further denies that she asked for his resignation or that anyone asked her to ask the former City Manager to resign.
I am submitting this resignation based on a meeting that I had with Councilor Nishioka on Friday February 7, 2025, where she represented that she was the duly authorized representative of the Mayor and a majority of City Council and requested that I tender my resignation.
So who are we to believe? As noted in my grievance, the City argues that Stahley used the language he did because it mirrors the language in Stahley's employment contract that makes him eligible to receive severance benefits. But as I said in the grievance:
The city attorney doesn’t know why Stahley said what he did in his resignation letter. That’s why Atchison included “apparently” in his conjecture that Nishioka never said that she was the duly authorized representative of the Mayor and a majority of the City Council. Basically, the city attorney is accusing Stahley of lying.
There's no dispute (1) that Mayor Hoy spoke with a quorum of the Council about whether Stahley should consider resigning; (2) that Mayor Hoy told Councilor Nishioka, the Council president, that a majority of the Council wanted Stahley to consider resigning; (3) that Councilor Nishioka met with Stahley on February 7 to discuss his employment status; and (4) that Stahley issued his resignation letter on February 9.
Yet the City wants us to believe that Stahley resigned on his own behalf, with no pressure from Nishioka, even though she had been told by Hoy that a majority of the City Council wanted Stahley to consider resigning. If this is true, and I want to emphasize that such is extremely unlikely, then Stahley has engaged in a form of employment fraud -- falsely claiming that Nishioka told him that she "was the duly authorized representative of the Mayor and a majority of City Council and requested that I tender my resignation."
Meaning, if Stahley decided to resign voluntarily, not at the behest of the City Council, he wouldn't be entitled to severance benefits. Yet this is at odds with another undisputed fact stated in the City's response to my grievance: "...the City Council voted to accept the resignation and deem that it was made at the request of Council."
That "deem" deserves careful consideration. The City contends that even though Nishioka never told Stahley that a majority of the Council wanted him to consider resigning, the Council still voted to give Stahley severance benefits out of the goodness of their heart. Strangely, the City also says:
The Council vote to deem that the resignation was made at the request of Council did not, nor was it intended to, suggest that the Council collectively asked for the former City Manager's resignation.
I'm not aware of any evidence that this is correct. The Council decision to accept Stahley's resignation occurred in a confidential executive session. So there is no reason to accept that what Stahley said in his resignation letter was false and what Nishioka says about their meeting is true. All we have is the undisputed fact that Stahley resigned after meeting with the Council president, who had been told by the Mayor that a majority of the Council wanted Stahley to consider resigning, and that the Council voted to accept his resignation and deem that it was made at the request of Council.
Which totally supports the contention of this complaint: that Mayor Hoy engaged in serial communications with a quorum of the City Council that led to Hoy telling Nishioka that a majority of the Council wanted Stahley to consider resigning, which he did after meeting with Nishioka and then stating in his resignation letter that he was resigning after Nishioka requested his resignation, putting herself forward as representing a majority of the Council.
Thus the Council voted to deem that Stahley resigned at the request of Council not as a favor to Stahley, but because this was true. The City's arguments otherwise are simply attempts to "spin" the facts in their favor.
The dispute over whether Stahley or Nishioka is speaking truly about what happened during their meeting illustrates the problem of an elected official, Mayor Hoy, using prohibited private serial communications to achieve a goal -- the resignation of Keith Stahley -- that lawfully should have been conducted via a public process by the City Council.
A majority of the City Council was within its rights to request Stahley's resignation. In fact, they voted to do just that at a Council meeting on March 10. Problem was, Stahley had already resigned on March 9, following his meeting with Nishioka where, according to Stahley, Nishioka told him that she represented a majority of the Council and asked him to resign.
This is not how official City Council business is supposed to work, privately behind closed doors, rather than publicly via either executive session or an open meeting.
Third, the City's response quotes the Oregon Administrative Rule included in my grievance, highlighting via boldface and underlining certain elements of the rule.
“A quorum of the members of a governing body shall not, outside of a meeting conducted in compliance with the Public Meetings Law, use a series of communications of any kind, directly or through intermediaries, for the purpose of deliberating or deciding on any matter that is within the jurisdiction of the governing body.”
My contention is that according to this Administrative Rule, the facts of this case support this complaint against Mayor Hoy.
-- It is undisputed that Mayor Hoy spoke with a quorum of the City Council, meaning a majority of the eight current members, which is five (one seat is vacant).
-- It is undisputed that Mayor Hoy's conversations with councilors took place outside of a meeting conducted in compliance with the Public Meetings law.
-- It is undisputed that Mayor Hoy's one-on-one conversations with city councilors comprised a series of communications about whether Stahley should consider resigning.
-- It is undisputed that the purpose of Mayor Hoy's serial communications had the purpose of deliberating or deciding whether Stahley should consider resigning.
-- It is undisputed that deliberating or deciding whether Stahley should remain as City Manager is within the jurisdiction of the City Council.
Given these undisputed facts, it isn't surprising that the City engages in some grasping at legal straws in an attempt to excuse what Mayor Hoy did.
One legal straw is using a definition of "intermediary" to argue that when Mayor Hoy told Councilor Nishioka that a majority of the City Council wanted Stahley to consider resigning, the Mayor was just sharing the information that she'd gained from her serial communications with individual councilors with a single member of the Council, rather than multiple members.
In other words, the position of the City is that Mayor Hoy couldn't be an intermediary who shared information about what she learned from her serial communications because she only told one person, Councilor Nishioka, that a majority of the Council wanted Stahley to resign. By this logic, if the Mayor had told that to two members of the Council, then the Mayor would have engaged in a prohibited serial communication -- but one person, that's just fine.
Which makes no sense, in part for a reason I shared before and will repeat here.
The City acknowledges that the Mayor spoke individually with other members of the City Council about her own concerns about Stahley and asked those members about their feelings toward Stahley. After these communications, the City acknowledges that Mayor Hoy told Councilor Nishioka (the Council president) that "a majority of councilors believed the former City Manager should consider resigning."
Councilor Nishioka then met with Stahley, after which he submitted his resignation. Thus it is clear that Mayor Hoy served as a conduit to allow a majority of the Council to make a decision regarding whether Stahley should consider resigning, which the City of Salem admits constitutes an illegal serial meeting.
Meaning, Mayor Hoy spoke individually with members of the City Council, then communicated what she had learned -- that a majority of the Council wanted Stahley to consider resigning -- which allowed a quorum of the Council to make a decision regarding Stahley's status as City Manager.
It should be noted that this case is unusual in that it is an instance of an illegal serial communication where the public body, a City Council, didn't need to meet in order for the purpose of the serial communication to be fulfilled.
That is, it seems clear that Mayor Hoy wanted Keith Stahley to resign. All the Mayor needed to do to make this happen was talk with a quorum of the City Council individually, tell the President of the Council that a majority of the Council wanted him to consider resigning, then have the Council President meet with Stahley, after which he resigned.
Thus in this instance of a serial communication, there was no need for Mayor Hoy to communicate to more than one person what she learned by talking privately with a quorum of the City Council -- that a majority wanted Stahley to resign. All the Mayor needed to do was communicate this to the Council President, Councilor Nishioka, who then met with Stahley, after which he resigned.
It's difficult for me to imagine that when the Oregon legislature passed a bill prohibiting serial communications, their intent was to allow a mayor to force a city manager to resign by the mayor talking privately with a quorum of a city council, telling the council president that a majority of the council wanted him to consider resigning, and then having the city manager resign following a meeting with the council president.
There was a way for Mayor Hoy to force Keith Stahley's resignation through regular communications with, and meetings of, the Salem City Council. Mayor Hoy didn't choose that way. She chose the prohibited serial communications way. Which is why I've gone to the time and trouble of filing this complaint. I believe in open and transparent government dealings, so it bothered me a lot when I learned how Stahley was forced to resign through a private and seemingly illegal process.
Thank you for your consideration of this complaint.
Sincerely, Brian Hines
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