The last fourth of the 6 January 1941 State of the Union Address to Congress

A 75-year old speech reminds of us a time before the corporate capture of politics, when even a well-born WASP president recognized that freedom requires ending special privilege for the few and had to include economic security for workers and those unable to work. There is probably no better guide to understanding why the rich hated “that man in the White House” every bit as much as the right hates President Obama, a far less liberal thinker, today.

This is the last fourth of FDR’s 1941 “State of the Union” address to Congress. He spent much of the speech outlining the “Lend Lease” program of sending arms to Britain to help it keep Hitler at bay. FDR had to overcome the fact that many prominent Americans on the right cheered Hitler’s results in Germany and promoted the idea that America should ignore the fight in Europe. But FDR’s speech did not just discuss arms and war — he segued from Lend Lease to discussing the basic social contract that had to exist to justify taking Americans toward what FDR knew would be a titanic war against fascism.

FDR’s speech captured the essence of the progressive struggle against the Gilded Age policies that still mainly dominated up to FDR’s election and the “New Deal.” Undoing FDR’s legacy has been the main object of the Republican Party ever since, and they have succeeded to a frightening degree in convincing average folks that what is good for the top 1% is good for America, despite all evidence to the contrary.

The 272-word Gettysburg Address is the standard by which all Presidential speaking is judged. This part of FDR’s speech lacks the amazing crystalline precision and simplicity of that speech and can seem leaden and dull in comparison. But in terms of effect, the roughly 600 additional words FDR used to outline a positive program for the American Century were well used.

As men do not live by bread alone, they do not fight by armaments alone. Those who man our defenses, and those behind them who build our defenses, must have the stamina and the courage which come from unshakable belief in the manner of life which they are defending. The mighty action that we are calling for cannot be based on a disregard of all things the worth fighting for.

The Nation takes great satisfaction and much strength from the things which have been done to make its people conscious of their individual stake in the preservation of democratic life in America. Those things have toughened the fibre of our people, have renewed their faith and strengthened their devotion to the institutions we make ready to protect.

Certainly this is no time for any of us to stop thinking about the social and economic problems which are the root cause of the social revolution which is today a supreme factor in the world.

For there is nothing mysterious about the foundations of a healthy and strong democracy. The basic things expected by our people of their political and economic systems are simple. They are:

Equality of opportunity for youth and for others.
Jobs for those who can work.
Security for those who need it.
The ending of special privilege for the few.
The preservation of civil liberties for all.
The enjoyment of the fruits of scientific progress in a wider and constantly rising standard of living.

These are the simple, the basic things that must never be lost sight of in the turmoil and unbelievable complexity of our modern world. The inner and abiding strength of our economic and political systems is dependent upon the degree to which they fulfill these expectations.

Many subjects connected with our social economy call for immediate improvement.
As examples:

We should bring more citizens under the coverage of old-age pensions and unemployment insurance.

We should widen the opportunities for adequate medical care.

We should plan a better system by which persons deserving or needing gainful employment may obtain it.

I have called for personal sacrifice. And I am assured of the willingness of almost all Americans to respond to that call.

A part of the sacrifice means the payment of more money in taxes. In my Budget Message I will recommend that a greater portion of this great defense program be paid for from taxation than we are paying for today. No person should try, or be allowed, to get rich out of the program; and the principle of tax payments in accordance with ability to pay should be constantly before our eyes to guide our legislation.

If the Congress maintains these principles, the voters, putting patriotism ahead of pocketbooks, will give you their applause.

In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms.

The first is freedom of speech and expression–everywhere in the world.

The second is freedom of every person to worship God in his own way–everywhere in the world.

The third is freedom from want–which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants-everywhere in the world.

The fourth is freedom from fear–which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor–anywhere in the world.

That is no vision of a distant millennium. It is a definite basis for a kind of world attainable in our own time and generation. That kind of world is the very antithesis of the so-called new order of tyranny which the dictators seek to create with the crash of a bomb.

To that new order we oppose the greater conception–the moral order. A good society is able to face schemes of world domination and foreign revolutions alike without fear.

Since the beginning of our American history, we have been engaged in change–in a perpetual peaceful revolution–a revolution which goes on steadily, quietly adjusting itself to changing conditions–without the concentration camp or the quick-lime in the ditch. The world order which we seek is the cooperation of free countries, working together in a friendly, civilized society.

This nation has placed its destiny in the hands and heads and hearts of its millions of free men and women; and its faith in freedom under the guidance of God. Freedom means the supremacy of human rights everywhere. Our support goes to those who struggle to gain those rights and keep them. Our strength is our unity of purpose.

To that high concept there can be no end save victory.

Essay: The Silent Collapse

Maine’s Sam Smith, long-time inspiration for OregonPEN, founder and publisher of “The Progressive Review” for many years and still busy giving life to Utah Phillips’ pointed observation that “The long memory is the most radical idea in this country. It is the loss of that long memory which deprives our people of that connective flow of thoughts and events that clarifies our vision, not of where we’re going, but where we want to go.”

Sam Smith, 2011

One of the curiosities of being chronically ahead of the mainstream is that periodically you suddenly discover that you’re not. For example, over the past decade I’ve putting forth the notion, seemingly bizarre to many, that the First American Republic was over and that we had moved into a post constitutional adhocracy. Lately, however, the idea seems to be becoming increasingly mundane, almost like saying, “Geez, that was a lot of rain we had.”

But when did it shift from being a radical thought to becoming so inevitable? I don’t remember people debating it on corporate TV, writing about it in the NY Times, arguing it in a campaign speech, or analyzing it in a professorial paper. It just happened. The most important development in our nation’s history since the Civil War crept into the room like a shy new guest. And somewhere in between, radical conjecture transformed itself into the norm.

We have moved into a time in which the Bill of Rights is being routinely trashed, the true unemployment rate is higher than anything we’ve seen since the thirties, our corporations are out of control, no one in power seems to care about climate change, and the only presidential candidate in either major party who won’t send you to Gitmo without an indictment and trial is Ron Paul.

What’s critical about this is not just that the new reality has been recognized but that it has been accepted as inevitable without debate, anger, or strong protest.

Some years ago I wrote about such a time:

What was unexpected, both in timing and intensity, was that I would not only live through one of America’s great revivals but during a subsequent era when my country — without debate, consideration, or struggle — decided it really didn’t want to be America any more.

Few even talked about it, but, as a writer and as a child of segregation, I knew that in the silence could be something as telling and evil as words. After all, the language of the old south was most descriptive in what it didn’t say – and what wasn’t allowed to be said.

Much later I would come across the words of a German university professor who described to journalist Milton Mayer what it had been like under the Nazis in the 1930s:

To live in the process is absolutely not to notice it — please try to believe me — unless one has a much greater degree of political awareness, acuity, than most of us ever had occasion to develop. Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted.’. . .

Believe me this is true. Each act, each occasion is worse than the last, but only a little worse. You wait for the next and the next. You wait for one shocking occasion, thinking that others, when such a shock comes, will join you in resisting somehow.. . .

Suddenly it all comes down, all at once. You see what you are, what you have done, or, more accurately, what you haven’t done (for that was all that was required of most of us: that we did nothing). You remember those early meetings of your department in the university when, if one had stood, others would have stood, perhaps, but no one stood. A small matter, a matter of hiring this man or that, and you hired this one rather than that. You remember everything now, and your heart breaks. Too late. You are compromised beyond repair.

William Shirer noted something similar in Nightmare Years:

What surprised me at first was that most Germans, so far as I could see, did not seem to mind that their personal freedom had been taken away, that so much of their splendid culture was being destroyed and replaced with a mindless barbarism, or that their life and work were becoming regimented to a degree never before experienced even by a people accustomed for generations to a great deal of regimentation . . .

Shortly before his death in Tom Stoppard’s Rosencrantz & Guildenstern Are Dead, Rosencrantz says:

What was it all about? When did it begin? . . . Couldn’t we just stay put? . . . We’ve done nothing wrong! We didn’t harm anyone. Did we? . . . There must have been a moment, at the beginning, when we could have said — no. But somehow we missed it.. . . Well, we’ll know better next time.

Are we too late this time as well?

One can’t tell, but the only way to fairly test the matter is to end the silence and loudly describe America as it has truly become – not yet a dictatorship but certainly a land run by those in both major parties whose contempt for our Constitution and normal decency strips them of any pretense of democratic leadership, leaving but the greed, corruption and cynicism of those who honor power and little else.

What is needed at this moment is a far more visible community of those who know this, tell about it, hate it and are willing to fight to recover our land from it. We have to put the issue out where even the Prozac press can’t ignore it.

Basically, our country is now divided between those who still believe in democracy and those who believe only in a culture of impunity for those with power and devoid of honor. With stunningly few exceptions, the latter includes not only Republican and Democratic politicians but our business leaders, media figures and a surprising number of academics. One need only to compare the role of today’s intellectuals with those of the 1960s to see how far our purported best and brightest have also fallen.

To do something about this, we do not have to forego our concerns for economic, ecological, and social issues, but we must understand and act on the fact that the biggest division in our country today is between those who still believe in democracy, decency and liberty and those who consider America just one big hedge fund that no one can, or cares to, regulate..

It might help, for example, if Greens and Libertarians came up with a joint plan to confront this crisis. Or if Bernie Sanders and Ron Paul jointly formed a movement to give it life. Or if the Occupiers and the Tea Party worked together on the simply recovery of a constitutional society. As Tea Party member and Marine Corporal Stephen Mark Allen, put it, “Nothing would terrify the establishment more than a united Occupy Tea Party movement.”

But one thing is for certain, time is running out. When you have a Democratic President supporting military incarceration without any constitutional protection, you don’t have many friends left. This is not just a difference in ideology; it is two Americas.

And we may not even get a next time in which to know better how to do it.

“Whistleblowers,” n., People who lose the match when wrestling with their own integrity trapped in jobs working for the ones who won.

; 1773 – Confidential letters exposed by Benjamin Franklin proved the governor of Massachusetts misled Parliament to promote a military buildup in the new world. The governor was dishonorably discharged and exiled.

1777 – US naval officers Samuel Shaw and Richard Marven revealed the torture of British POWs by the commander-in-chief of the Continental Navy. The following year, the Continental Congress unanimously enacted the first whistleblower protection law.

1872 – Julius Chambers, one of America’s first investigative journalists, admitted himself to New York’s Bloomingdale Insane Asylum and published an exposé proving patient abuse. 12 patients were subsequently released and laws were substantially re-written.

1906 – Upton Sinclair exposes conditions inside Chicago pig slaughterhouses through his novel, The Jungle.

1933 – Through secret congressional testimony and a book entitled War is a Racket, retired Marine Corps Major General Smedley Butler exposed government corruption known as “The Business Plot” that aimed to overthrow FDR’s presidency.
 

1962 – Through her watershed book Silent Spring, Rachel Carson exposed the residual effects of DDT chemicals on animals and humans, inspiring the widespread ban on DDT chemicals that went into effect in 1972.

1963 – John Paul Vann, an American colonel, reported to his superiors (and, later, the media) that American policy and tactics during the Vietnam War were seriously flawed. He was asked to resign his commission.

1966 – Congressional aide James Boyd and secretary Marjorie Carpenter expose documents from the office of Senator Thomas Dodd to show Dodd used more than $200,000 in unreported campaign funds for personal expenses. Dodd is censured and loses his seat in the next election.

1968 – A. Ernest Fitzgerald, a Department of Defense auditor, reports a $2.3 billion cost overrun in the Lockheed C-5 aircraft program. President Nixon reportedly tells aides to fire Fitzgerald, but he’s reinstated four years later. In the late 1980s, Fitzgerald plays a part in the investigation that reveals the Pentagon has purchased $200 hammers and $900 toilet seats.

1969 – Vietnam veteran Ron Ridenhour, an ex-Army helicopter gunner, writes a letter to Congress and the Pentagon describing events at My Lai during the Vietnam War, including the torture, sexual abuse, mutilation and mass murder of hundreds of unarmed civilians.

1970 – After police officer Frank Serpico reports police corruption to his superiors for several years and no action is taken, he approaches The New York Times with a story that ultimately forces New York City mayor John Lindsay to establish a commission to investigate police corruption.

1971 – Daniel Ellsberg, a former US military analyst and government contractor, discloses a classified government study about the Vietnam War later known as the Pentagon Papers. Ellsberg’s act proved several administrations had directly lied to Congress and the public about their intentions and actions in Vietnam. This led to protests, contributed to the resignation of Nixon, and emboldened the media when the Supreme Court decided against prior restraint in New York Times Co. v. United States.

1971 – NSA intelligence analyst Perry Fellwock exposed secret surveillance practices in an interview with Ramparts magazine under the pseudonym Winslow Peck. Legislation was passed in 1973 to stop the NSA from spying, but later ignored.

1972 – While working for the US Public Health Service, Peter Buxtun realizes the agency is studying the effects of syphilis by monitoring 399 African-American men who are neither told they have the disease nor treated for it. After Buxtun takes the story to the press and a series of Congressional hearings are held, a $10 million class-action settlement is paid to victims and their families.

1972 – After a break-in at the Democratic National Committee headquarters in the Watergate complex, Washington Post reporters Bob Woodward and Carl Bernstein uncover ties between the break-in and the White House. Anonymous source “Deep Throat” gives reporters information that eventually leads to President Nixon’s resignation. In 2005, Deep Throat is revealed to be W. Mark Felt, former associate director of the F.B.I.

1974 – Union activist Karen Silkwood, a technician at the Kerr-McGee plutonium fuels production plant in Oklahoma, is in the process of gathering evidence about plant safety negligence when she is killed in a mysterious car crash.

1975 – GE engineers Gregory Minor, Richard Hubbard and Dale Bridenbaugh reveal safety issues at nuclear power plants and subsequently resign. Over the next 15 years, more than 500 additional whistleblowers disclose further issues, resulting in the halting of construction of three plants and the overhaul of the Three Mile Island clean up.

1977 – Frank Camps, a senior principal design engineer with Ford Motor Company, warns Ford the design of the Pinto is unsafe. The vehicle is later withdrawn from the market after numerous accidents result in burn injuries due to its flawed design.

1977 – Frank Snepp, a CIA analyst at the US Embassy in Saigon, published Decent Interval about Operation Frequent Wind and failure to prepare for the fall of Saigon. Names, methods and sources were redacted from the book, but CIA Director Stansfield Turner had Snepp prosecuted for breach of contract, resulting in the loss of all income from the book’s publication.

1983 – Richard Parks, an engineer with Bechtel Corp. blows the whistle on the cleanup of a nuclear reactor on Three Mile Island – the worst nuclear power plant accident in American history. Parks noted Bechtel and their hiring company, General Public Utilities, were rushing the cleanup by ignoring regulations set forth by the Nuclear Regulator Commission (NRC). Funds were supplied to Bechtel for each cleanup task, but only after completion of the previous tasks, incentivizing them to cut corners and rush their work. After blowing the whistle, Parks was relocated and then fired. After the conclusion of drawn out legal proceedings, Parks’ disclosures led the Nuclear Regulatory Commission to halt and then revamp the entire cleanup process at Three Mile Island.

1984 – John Michael Gravitt, a machinist foreman at General Electric, sued GE for defrauding the U.S. Department of Defense when GE began falsely billing for work on the B1 Lancer bomber. The case led to federal legislation bolstering the False Claims Act in 1986 that made it easier for whistleblowers to collect damages and a record settlement for Gravitt.

1985 – Ronald J. Goldstein was a supervisor at EBASCO, a contractor for the construction of Houston Lighting and Power Company’s South Texas Project. He reported safety problems to an internal compliance program, but was fired. He then filed suit under federal nuclear whistleblower statutes but lost after a ruling by the Fifth Circuit Court of Appeals cited the lack of whistleblower protections for private programs. Congress then amended federal nuclear whistleblower law.

1986 – Auditor Casey Ruud testified to Congress about missing plutonium, and public and worker health dangers, at the nation’s nuclear weapons reservation in Hanford, Washington. His testimony led to the halting of plutonium production in the US two years prior to the end of the Cold War.

1990 – Arnold Gundersen, a senior vice-president at consulting firm Nuclear Energy Services, discovered radioactive material in an NES accounting safe. Three weeks after he notified the company president of what he believed to be radiation safety violations, he was fired. The Office of the Inspector General later reported the Nuclear Regulatory Commission had violated its own rules by hiring NES.

1995 – Jeffrey Wigand, former vice-president for research and development for tobacco company Brown & Williamson, is interviewed by 60 Minutes and discloses the company misled consumers about how addictive and hazardous cigarettes are.

1995 – EPA veteran William Sanjour won a landmark lawsuit against the federal government which established the First Amendment rights of federal employees to criticize their employer.

1996 – David Franklin files a whistleblower lawsuit against Warner-Lambert exposing illegal promotion of the drug Neurontin. The ensuing investigation uncovers illegal industry-wide practices and results in a $430 million penalty to resolve criminal and civil charges.

1996 – Senior nuclear engineer George Galatis reported safety problems at the Millstone 1 Nuclear Power Plant relating to reactor refueling procedures. Galatis eventually took his concerns to the NRC only to find they had known about the unsafe procedures for years.

1998 – Marc Hodler was an International Olympic Committee (IOC) member who blew the whistle on the Winter Olympic bid scandal for the 2002 Salt Lake City games. Accusations included members taking bribes from the Salt Lake Organizing Committee during the bidding process. Ultimately, several IOC members were expelled and the IOC adopted new rules.

1999 – Frank Casey was an equity specialist manager who discovered a money manager, Bernard Madoff, generating a suspect 12% return for investors. He took his findings to Harry Markopolos, a financial fraud investigator, who submitted documents to the SEC multiple times showing that Madoff was running a Ponzi scheme. Madoff is arrested and charged with securities fraud, but not until 2008 when losses to investors are estimated at $18 billion. Madoff is convicted and sentenced to 150 years.

1999 – Cathy Harris, a former senior inspector for the U.S. Customs Service (USCS) at Hartsfield-Jackson International Airport in Atlanta, disclosed to the media the USCS practice of discriminatory racial profiling. She verified that women of African descent were targeted as possible drug couriers when only 3% of those women were actually carrying drugs, whereas drugs were found on 30% of white travelers detained and searched. Harris’ revelations resulted in a landmark GAO study of USCS profiling practices, and federal legislation to reform these unconstitutional practices.

2000 – Marsha Coleman-Adebayo, a senior policy analyst in the Office of the Administrator at the EPA, blew the whistle on the EPA for racial and gender discrimination in violation of the Civil Rights Act of 1964. The case eventually led to the passing of the No-FEAR Act in 2002 making federal agencies more accountable to employees.

2001 – Joseph Nacchio was chairperson and CEO of Qwest when it refused to participate in NSA spying on its customers in February 2001. Qwest was the only telecom company to demand a FISA court order to hand over its customer records.

2001 – Bogdan Dzakovic served as a leader for the FAA’s Red Team, which conducts mock raids on airports in order to determine if airlines are equipped to thwart hijackers. Breaching security with ease (a 90% rate), Red Team members repeatedly warned that America’s airports were vulnerable, including Boston’s Logan Airport used by hijackers a few months later on 9/11. The FAA ordered the Red Team not to write up its reports, not to retest to check if security breaches had been fixed, and proceeded to forewarn airlines when the Red Team was planning to test security. After 9/11, Dzakovic blew the whistle on this abuse of secrecy.

2001 – Technical Director William Binney and Senior Analyst J. Kirk Wiebe retired from the National Security Agency (NSA) after trying to blow the whistle on NSA’s gross mismanagement and waste in connection with the failed data collection program known as Trailblazer.

2001 – John Munsell, a small-business owner and meat grinder, reported that a giant packing company (ConAgra) was the source of E. coli-tainted meat at his plant. His disclosures, along with deaths from the E. coli-tainted beef, spurred one of the largest recalls in history, though as much as 80% of the potentially tainted shipment had already been consumed.

2001 – Kathryn Bolkovac is a former police investigator who served as an International Police Task Force human rights investigator in Bosnia. She cooperated with Human Rights Watch to expose the misconduct and human rights abuses committed against young girls, forced into prostitution and used as sex slaves by U.S. military contractors and other UN-related police and international organizations.

2001 – Sherron Watkins was Vice President of Corporate Development at Enron. She is considered by many to be the whistleblower who helped to uncover the Enron scandal in 2001, as she alerted then-CEO Ken Lay to accounting irregularities within the company, warning that Enron ‘might implode in a wave of accounting scandals.’ 

2001 – Jack Spadaro headed the National Mine Safety and Health Academy when the Martin County Coal Slurry Spill occurred in October 2000, spilling 300 million gallons of coal slurry into 100 miles of streams in Kentucky and West Virginia. He participated in the federal investigation of that disaster and found evidence that the owner and operator of the impoundment dam had prior knowledge of problems with the mine. Spadaro refused to sign off on an erroneous report and resigned his position before going public with his evidence of gross wrongdoing.

2002 – Department of Justice Ethics Advisor Jesselyn Radack warned FBI agents who sought to interrogate “American Taliban” John Walker Lindh without his legal counsel present.

2002 – Cynthia Cooper is an American accountant who formerly served as the VP of Internal Audit at WorldCom. She and her team of auditors worked together to investigate and unearth $3.8 billion in fraud at WorldCom, the largest incident of accounting fraud in U.S. history at the time.

2002 – Coleen Rowley of the F.B.I. outlined the agency’s slow response time to reports of suspicious activity before the 9/11 attacks. She jointly held the TIME Person of the Year award in 2002 with Sherron Watkins and Cynthia Cooper.

2003 – Robert MacLean is a Federal Air Marshal (FAM) who revealed a cost-cutting plan to cancel FAM coverage from long-distance flights on the eve of a confirmed al-Qaeda suicidal hijacking.

2003 – Justice Department attorney Thomas Tamm became aware of a program that bypassed the 11-member Foreign Intelligence Surveillance (FISA) court and allowed the Attorney General to sign wiretap requests without the court’s review.  After Tamm’s inquiries repeatedly ran into walls of silence, he contacted The New York Times, which ran a Pulitzer Prize-winning cover story about the Bush administration’s warrantless wiretapping program.

2003 – Jon Oberg, while working at the Department of Education as a researcher, discovered illegal payments to student loan lenders of federal tax dollars that department officials instructed him not to investigate. On his own time, he researched the payments and reported them to Congress, which in 2004 ended the payments prospectively, saving billions of dollars. In 2007, Oberg sued the recipients under the False Claims Act. Three years later, the Department of Justice announced it had settled four of the cases for over $57 million.

2003 – British government translator Katharine Gun leaks an e-mail detailing illegal activities by the US and UK in their push to invade Iraq. In the document, a U.S. National Security Agency official requests British help with spying on UN diplomats. Gun is arrested and charged with crimes before the case is finally dropped in 2004.

2004 – Food and Drug Administration (F.D.A.) safety officer David Graham breaks ranks with his employer and testifies to the U.S. Senate that Merck’s blockbuster arthritis drug Vioxx has killed as many Americans as the Vietnam War. Merck is forced to withdraw Vioxx from the market, and the F.D.A.’s reputation is severely tarnished.

2004 – Sergeant Joseph Darby provides photos to the U.S. Army Criminal Investigation Command of torture and abuse of prisoners at Abu Ghraib, triggering an investigation that leads to prison, dishonorable discharge and reprimands for 11 soldiers.

2004 – Samuel Provance, system administrator for U.S. Army Military Intelligence at the Abu Ghraib prison, publicly revealed the role of interrogators in the abuses, as well as general efforts to cover up the Abu Ghraib prisoner abuse itself.

2004 – Victoria Hampshire, an FDA veterinarian, discovered that a popular heartworm medication for dogs was killing hundreds of animals. Her analysis and reports pulled the drug off the market. Drugmaker Wyeth Pharmaceuticals then conducted a smear campaign against her and used its influence with the FDA to have her criminally investigated.

2004 – Gerald W. Brown, a former firestop contractor and consultant, uncovered the Thermo-lag circuit integrity scandal and silicone foam scandals in U.S. and Canadian nuclear power plants, which led to Congressional proceedings as well as Provincial proceedings in the Canadian Province of Ontario concerning deficiencies in passive fire protection.

2004 – Peter Rost, former vice president of Pfizer, reported accounting irregularities and other issues to US authorities, leading to a criminal investigation of Pfizer’s marketing practices. After he was terminated, Rost authored a book detailing illegal business practices he witnessed at the pharmaceutical company.

2005 – Rick Piltz, a senior associate in the U.S. Climate Change Science Program, resigns over the White House’s attempt to interfere with the program’s findings and manipulate them to overstate the degree of scientific uncertainty about human causes of climate change.

2005 – National Security Agency (NSA) Senior Executive Thomas Drake identified a massively wasteful and ineffective program that sacrificed security and privacy. Drake reported the program first using all proper internal channels (NSA, Congress, DoD IG), then later to a reporter in 2005. Prosecuted under the Espionage Act, he saw his case collapse by June 2011. Nonetheless, he was forced to mount a crushing legal battle for four years and his career was destroyed.

2005 – While working at UBS bank in Switzerland, banker Bradley Birkenfeld realizes that managers at the bank are encouraging American clients to evade taxes by putting their money in offshore accounts. Despite the recovery of billions of taxpayer dollars and the fact that he has helped to end the illegal UBS tax fraud scheme, Birkenfeld is ordered to serve a 40-month prison sentence.

2005 – Dr. Susan Wood served as FDA Assistant Commissioner for Women’s Health for five years. When she concluded in 2005 that Bush administration politics was tying up the approval of Plan-B, not the safety or efficacy of this “morning-after pill,” she resigned, stating that FDA science was being held captive by the “pro-life movement.”

2005 – Bunnatine “Bunny” H. Greenhouse, former chief civilian contracting officer for the U.S. Army Corps of Engineers, exposed illegality in the no-bid contracts for reconstruction in Iraq by a Halliburton subsidiary.

2005 – Shawn Carpenter, an employee of Sandia (Dept. of Energy research and development national laboratory), discovered that a sophisticated group of hackers were systematically penetrating computer networks at major U.S. defense contractors, military installations and government agencies to access sensitive information. He went on to voluntarily work with the U.S. Army and the FBI to address the problem, but Sandia terminated his employment and revoked his security clearance.

2006 – Mark Klein, a retired communications technician for AT&T, revealed the details of the secret 2003 construction of a monitoring facility in San Francisco thought to be operated by the NSA as part of its warrantless surveillance program.

2006 – Cate Jenkins, a former EPA chemist, wrote memos to the EPA Inspector General, Congress and the FBI detailing the chemical composition of dust from the 9/11 attacks and its hazards to responders. She asserted the EPA lied about the known dangers of the dust which caused chemical burns in the lungs.

2006 – Adam B. Resnick exposed Medicare and Medicaid fraud by the pharmaceutical company Omnicare, a major supplier of drugs to nursing homes. Omnicare allegedly paid kickbacks to nursing home operators in order to secure business.

2006 – Frank Terreri joined the Federal Air Marshals Service after the 9/11 attacks and disclosed numerous security problems on behalf of 1,500 air marshals. He questioned policies that helped identify undercover air marshals and challenged endorsing news segments that revealed methods agents use to respond to hijacking. He was vindicated by the OSC in 2006.

2006 – Assistant plant manager Kenneth Kendrick from Peanut Corporation of America (PCA) blew the whistle on the origins of salmonella-tainted peanut butter that sickened hundreds and even killed several people in the US in 2008-09. Kendrick spoke on Good Morning America and disproved PCA’s defense that the batch of tainted peanut butter from the Georgia plant was an unexpected and isolated event.

2006 – James Hansen, climate scientist blew the whistle on NASA officials’ and the Bush administration’s attempts to silence him from speaking out about the dangers of global warming.

2006 – Gary Aguirre is a former SEC lawyer who reported wrongdoing by SEC officials for their failure to allow a proper investigation of one of the country’s leading hedge funds. Aguirre was dismissed following his attempt to subpoena John Mack, the future CEO of Morgan Stanley.

2006 – While evaluating $90 billion of mortgages Citigroup was buying from Countrywide and other lenders, former Citigroup vice president Richard Bowen tried to warn about the rise in defective mortgages. Bowen raised concerns that roughly 60% of prime mortgages were defective, as well as Citigroup’s practice of lowering its standards for subprime mortgage pools. In 2010 he testified before the Financial Crisis Inquiry Commission and continues to face repercussions as a whistleblower today.

2006 – Dr. Aubrey Blumsohn, a senior faculty member at Sheffield University, blew the whistle on data concealment and manipulation performed on behalf of Procter & Gamble regarding that company’s osteoporosis drug, Actonel.

2007 – Anonymous whistleblowers revealed malfeasance involving World Bank President Paul Wolfowitz and his top lieutenants. The improper hiring and pay raises of his intimate friends and the deletion of references to family planning in policy statements led to his resignation two months later.  

2007 – Kit Foshee blew the whistle on the ammoniation process used by his former employer Beef Products Inc. (BPI) on its low-grade beef product later known as “pink slime.”

2007 – While serving as a senior civilian Air Force aircraft mechanic, George Sarris discovered serious maintenance concerns with two types of aircraft critical for national security missions. Ultimately, he settled a Whistleblower Protection Act lawsuit with the Air Force.

2007 – Franz Gayl, a Marine Corps science adviser, exposed the fact that the Corps failed to provide American troops in Iraq with MRAPs in a timely manner that could have protected soldiers against improvised explosive devices and roadside bombs.

2007 – John Kiriakou is a CIA veteran who headed counterterrorism operations in Pakistan after 9/11, organized the team operation that captured suspected al-Qaeda operative Abu Zubaydah, and refused to be trained in enhanced interrogation tactics. In 2007, Kiriakou gave an on-camera interview to ABC News where he disclosed that Zubaydah was waterboarded, explicitly calling it torture – making him the first CIA officer to publicly label the action as torture. His words also exposed the CIA’s torture program as policy, rather than the actions of rogue agents.

2007 – James Wasserstrom served with the UN Department of Peacekeeping Operations as a senior official at UNMIK from 2002-08. In 2007, he alleged internal corruption involving UN Secretary General Ban Ki-moon’s Special Representative (SRSG) Joachim Ruecker, Principal Deputy SRSG Stephen Schook, and UNMIK Legal Advisor Alexander Borg-Olivier.

2008 – While overhauling security for a major telecommunications company (independently identified as Verizon), computer security expert Babak Pasdar discovered the “Quantico Circuit” at the company’s facility that surreptitiously re-routed and captured all customer mobile phone communications. Pasdar’s findings were one of the pioneering disclosures that exposed the full extent of domestic spying on Americans.

2008 – Dr. Kunal Saha came forward with evidence that World Bank funds had been used for years to purchase defective test kits designed to detect the presence of HIV/AIDS in blood samples.

2009 – Gabe Bruno was a former FAA Manager of the Orlando Flight Standards District Office. He alleged the FAA lacks a national security screening mechanism for mechanics with fraudulent certificates, leaving the industry open to potential terrorism.

2009 – Dr. Dean Wyatt, a former USDA Public Health Veterinarian, discovered humane handling violations at two slaughter plants in Oklahoma and Vermont. Though he was reprimanded and subjected to retaliation, he was ultimately vindicated by an undercover video released in 2009.

2009 – Former head of corporate communications at CIGNA Wendell Potter testified against the HMO industry in the US Senate and authored the book Deadly Spin, detailing industry-wide deceitful tactics.

2009 – Renee Dufault is a former FDA health researcher who retired after she was pressured to stop investigating traces of mercury found in high fructose corn syrup. In January 2009, she published her findings in a peer-reviewed journal.

2009 – John Kopchinski is a former Pfizer sales representative whose whistleblower lawsuit launched a massive government investigation into Pfizer’s illegal marketing of prescription painkiller Bextra. Part of a $2.3 billion global settlement, the case was the largest healthcare fraud settlement in U.S. history.

2009 – Four sales representatives for Eli Lilly – Robert Rudolph, Joseph Faltaous, Steven Woodward, and Jaydeen Vincente – filed separate qui tam lawsuits against the company for illegally marketing the drug Zyprexa for uses not approved by the FDA, including the treatment of dementia in the elderly.

2010 – Samy Kamkar is a computer hacker who exposed the illicit global mobile phone tracking of all users, regardless of GPS or Location Services settings, on the Apple iPhone, Google Android and Microsoft Windows Phone mobile devices, and their transmission of GPS and Wi-Fi information to their parent companies.

2010 –Immediately following the BP Deepwater Horizon disaster in April 2010,
Wilma Subra found evidence of serious health risks for clean-up workers and Gulf Coast residents from crude oil, aerosol forms of oil, and dispersant used on the spill.

2010 – Walt Tamosaitis was the Deputy Chief Process Engineer and Research & Technology Manager for the Waste Treatment Plant (WTP) at the Hanford Nuclear Site in Eastern Washington. After raising concerns about safety and operational issues, he was terminated in July 2010 by Bechtel.

2010 – Chelsea Manning, a U.S. Army intelligence analyst, was arrested for leaking 91,731 secret U.S. military reports about the war in Afghanistan, and 251,287 diplomatic cables from the State Department, including a classified airstrike video showing U.S. gunfire killing 11 civilians in Baghdad, including two Reuters journalists.

2011 – Peter Van Buren, a veteran Foreign Service Officer at the State Department authored the book We Meant Well, which exposed massive fraud while serving as the leader of two Provincial Reconstruction Teams in Iraq from 2009-10. It detailed how the U.S. wasted more than $44 billion in reconstruction efforts. In September 2012, he was forced to retire.

2011 – Eileen Foster, a former high-ranking official at Countrywide Financial and then Bank of America after its purchase of Countrywide in July 2008, exposed systemic fraud at Countrywide Financial and the corrupt activities of company officials that gave rise to the economic crisis.

2011 – Michael Winston was a high-level executive at Countrywide Financial tasked with writing a report about Countrywide’s succession planning and other governance issues to allay concerns expressed by Moody’s Credit Services. Winston refused to write the report as he had seen no succession plan, nor knew if one even existed. Soon afterward, his budget was frozen, his duties curtailed, and when Bank of America took over Countrywide in 2008, he was fired. His story was detailed in a 2011 New York Times story.

2011 – Christian Sanchez is a U.S. Border Patrol agent who was harassed after refusing overtime pay when there was no extra work to be performed at the Port Angeles, Washington office and briefing Congress about the waste of taxpayer dollars.

2012 – Larry Alt and Pete Forcelli, agents at the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), helped expose issues surrounding the Operation Fast and Furious scandal, the program that resulted in federally-monitored guns ending up in the hands of Mexican drug cartels.

2012 – John Parsons was the Inspector General for the Global Fund to Fight AIDS, Tuberculosis and Malaria (“The Global Fund”) from 2008 to 2012. Under his leadership, the Office of the Inspector General revealed that up to two-thirds of certain Global Fund grants may have been lost to corruption through forged documents, improper bookkeeping, the diversion of donated prescription drugs to the black market, and other irregularities. The Global Fund’s Board terminated Parsons in November 2012.

2012 – Phyllis McKelvey is a retired USDA Food Safety Inspection Service (FSIS) chicken inspector. Before leaving the USDA in 2010, McKelvy witnessed firsthand the damage the agency’s new poultry inspection model creates, including turning inspection duties over to company employees and increasing line speeds to the point where inspectors have only 1/3 of a second to view a carcass. Her concerns led her to start a petition asking the USDA to halt its plans, which gained more than 180,000 signatures.

2012 – Dr. Eric Ben-Artzi publicly came forward with his evidence of multi-billion dollar securities violations at Deutsche Bank. As an employee, he discovered and internally reported serious violations stemming from the Bank’s failure to report the value of its credit derivatives portfolio accurately.

2013 – Jim Schrier, a veteran USDA meat inspector, reported clear humane handling violations involving market hogs at a Tyson Foods slaughter facility. After raising concerns to his supervisor, he was sent to work at a facility 120 miles away. His wife started a Change.org petition that has gathered more than 180,000 signatures asking the USDA to move her husband back to his original post near their home.

2013 – USDA poultry inspector Sherry Medina has collected more than 70,000 signatures in a Change.org petition asking Tyson Foods to stop its excessive use of hazardous chemicals in poultry processing. Medina exposed the serious health issues that she and other inspectors have experienced while working at a Tyson plant in Albertville, Alabama.

2013 – Edward Snowden is a former Booz Allen Hamilton federal contractor employee who disclosed information regarding the NSA’s blanket surveillance of U.S. citizens through a secretive data-mining program that collects the phone records, e-mail exchanges, and Internet histories of hundreds of millions of people around the globe.

See more. Compiled by and republished with kind permission of the Government Accountability Project. 

Attorney General tells Ethics panel it must recognize online-only press as news media, same as old kind

This issue of OregonPEN – an online-only newspaper with a mission of helping empower people in Oregon – is given over to republication of a milestone opinion from the Attorney General about the ability of nontraditional media to demand parity with the declining “institutional” media outlets such as traditional printed newspapers. The absence of public interest coverage in the traditional media is already a calamity; as the disappearance of corporate-owned and corporate advertiser-funded newspapers accelerates (at an accelerating rate), this opinion is crucial, because it paves the way for publications such as OregonPEN to start filling the gaps left by the collapse of printed media.

Just as the skirmishes at Lexington and Concord were small events that heralded a much greater one soon to follow, the welcome conclusion to the new Attorney General opinion will have profound effects on the ability to oversee public entities in Oregon in the 21st Century. The conclusion to the opinion:

The law permits news-gathering  representatives  of institutional media to attend executive sessions. The statutory term news media” is broad and flexible enough to encompass changing technologies for delivering the news.  A governing body may not exclude a representative of the news media from an executive session except as specifically allowed by ORS 192.660(4) and (5).  The commission generally may adopt rules to carry out its duty to enforce the executive session law, but it is prohibited by ORS 192.660(10) from adopting a rule that establishes which entities are considered representatives of the news media.  Governing bodies may adopt policies relating to the admission of media representatives to executive sessions, but those policies cannot limit the statutory right of representatives of the news media to attend executive sessions. In evaluating allegations that an individual was wrongly excluded from executive session, the commission  must  assess compliance  with the  statute, regardless  of a governing  body’s policies.

 18 April 2016    No. 8291
 
This opinion answers several questions asked by the Oregon Government Ethics Commission concerning the Public Meetings Law requirement that “representatives of the news media” be allowed to attend executive sessions of public meetings. We first provide a short summary of the opinion, then set out the questions and our short answers, followed by a lengthier discussion.
 
SUMMARY
 
The Oregon Public Meetings Law, ORS 192.610 to 192.690, generally requires Oregon governing bodies to allow the public to attend their meetings. ORS 192.660, the “executive session law,” sets out the exceptions. That provision allows a governing body to have a discussion in “executive session” under certain circumstances. Although the public may be excluded from executive sessions, “representatives of the news media” must be allowed to attend except in very limited cases. ORS 192.660(4). The Oregon Government Ethics Commission (commission), among its other functions, investigates complaints that public officials have violated the executive session law. ORS 192.685.
 
This opinion addresses several issues pertaining to the commission’s duty to investigate and enforce the requirement that representatives of the news media be allowed to attend executive sessions. It first attempts to clarify the meaning of “representatives of the news media.” We conclude that the law permits news-gathering representatives of institutional media to attend executive sessions; We determine that the term “news media” is broad and flexible enough to encompass changing technologies for delivering the news. We also clarify the meaning of several related terms as set out below in “Question 1.”
 
We next conclude that a governing body may not exclude a representative of the news media from an executive session except as provided in ORS 192.660(4) and (5). We then address the commission’s authority to make rules to carry out its duty to enforce the executive session law. Since the commission first inquired, the Legislative Assembly has clarified in ORS 244.290 that the commission may adopt rules to carry out its duty to enforce the executive session law. The legislature established one exception, however: The commission is prohibited from adopting a rule that establishes which entities are considered representatives of the news media. ORS 192.660(10).
 
.     We next explain that a governing body may not lawfully enforce a policy that permits it to exclude from executive session a representative of the news media who would be permitted to attend under ORS 192.660(4) and (5). Finally, we conclude that in evaluating allegations that an individual was wrongly excluded from executive session, the commission must assess compliance with the statute regardless of a governing body’s policies.
 
QUESTIONS AND SHORT ANSWERS
 
QUESTION 1:
 
What is the meaning of the following terms as used in ORS 192.660(4), ORS 192.660(5), and the ATTORNEY GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL (2014)(Manual):
 
1. “Representatives of the news media” [ORS 192.660(4)];
2.      “Employee, agent or contractor of a news media organization” [ORS 192.660(5)];
3.      “Member of the news media” [ORS 192.660(5)];
4.      “Institutionalized news media” [MANUAL p 172]; and,
5.      “Bloggers and others using these technologies” [MANUAL p 172]?
 
SHORT ANSWER

1. For purposes of ORS 192.660(4), “representatives of the news media” means individuals who gather news and who have a formal affiliation, whether through employment, by contract or some other agency authorization from or with an institutional news media entity, including both general interest media and media that cover specific subject areas for special audiences.
 
2.   For purposes of ORS 192.660(5):
 
(a)  “employee of a news media organization” means a person who is paid wages or a salary by a news media organization;
(b)  “contractor of a news media organization” means a person who contracts to perform work for a news media organization; and,
(c)  “agent of a ·news media organization” means a person who is authorized to act for or in the place of a news media organization.
 
3.   “Member of the news media” as used in ORS 192.660(5) is effectively synonymous with a representative of the news media.
 
4.   “Institutionalized news media” means an entity that is formally organized for the purpose of gathering and disseminating news.
 
5.   “These technologies” as used in the phrase “bloggers and others using these technologies” in the Manual refers to more recent news mediums, including the internet, that are used to disseminate news in addition to traditional print, radio and television. “Bloggers” refers to individuals who use online technology to disseminate the news. A “blog” in the sense of a regular feature appearing as part of an online publication may qualify as a “news medium,” depending on the particular facts.
 
QUESTION 2
Are there any permissible grounds to exclude representatives of the news medja from attendance at executive sessions other than those identified in ORS 192.660(4) and (5)?
 
SHORT ANSWER 
No.
 
QUESTION 3
May the commission adopt administrative rules to carry out the duties imposed on it by ORS 192.685?
 
SHORT ANSWER 

Yes. As amended in 2015, ORS 244.290(2) gives the commission explicit authority to ad.opt rules necessary to carry out its duties under ORS 192.660 and 192.685. However, ORS 192.660(10) prohibits the commission from adopting a rule to establish which entities are representatives of the news media for purposes of ORS 192.660(4). ORS 244.290(2)(h) also requires the commission to adopt a rule specifying the criteria it will use to impose civil penalties for violations of ORS 192.660.

 
QUESTION 4
When evaluating alleged violations of ORS 192.660(4), what is the significance of policies adopted by governing bodies to implement the statutes? Specifically, what would be the legal significance of a policy to exclude a person who:
 
1.   Does not meet adopted screening criteria to determine who qualifies as a “representative of the news media”;
 
2.   Does not gain preapproval of media credentials in advance of executive sessions;
 
3.   Fails to give advance notice of attendance; or,

4.   Is believed to have unlawfully reported on a prior executive session or to represent a news media organization that did?
 
SHORT ANSWER 

Public bodies are required to comply with the statute. They cannot modify the statutory requirement by adopting a policy. In evaluating allegations that an individual was wrongly  excluded from executive session, the commission must assess compliance with the statute regardless of a governing body’s policies.
 
With respect to the specific types of policies the commission asks about (numbered 1 through 4 above) we answer as follows:
 
1.   If enforcement of the policy definition results in the exclusion of a representative of the news media, that exclusion would violate ORS 192.660(4).
 
2.   To the extent that a credentialing requirement simply requires an individual to demonstrate that he or she is a representative of the news media, its enforcement would be consistent with the law. But if a policy requires specific credentials, and an individual offering different credentials that are sufficient to demonstrate that he or she is a representative of the news media is excluded based on that policy, that exclusion would not be consistent with ORS 192.660(4).
 
3.   Advance notice of attendance is not required by the Oregon Public Meetings Law. Excluding a representative of the news media for failure to comply with a policy requiring advance notice of attendance would violate ORS 192.660(4).
 
4.   The Oregon Public Meetings Law does not authorize any mechanism for enforcing the requirement that representatives of the news media refrain from reporting designated information discussed in executive session. Enforcement of a policy excluding representatives of the news media on this basis would violate ORS 192.660(4).
 
DISCUSSION 

Statutory Background
 
A.   ORS 192.660 Executive session law
 
ORS 192.630(1) requires governing bodies to allow the public to attend their meetings “except as otherwise provided by ORS 192.610 to 192.690.” ORS 192.660(2) lists eighteen subjects that governing bodies may discuss privately in “executive session.” For example, when a governing body consults with its attorney about pending litigation, it may do so privately.
 
Although the public may be excluded from executive sessions, “representatives of the news media” usually must be allowed to attend. ORS 192.660(4). However, governing bodies may exclude even the news media when deliberating with their labor negotiators, considering the expulsion of minor students, or examining students’ confidential medical records. Id And governing bodies meeting with their counsel about pending or likely litigation must exclude a “member of the news media” who is a party to the litigation or an “employee, agent or contractor of a news media organization that is a party to the litigation.” ORS 192.660(5). When representatives of the news media attend executive session, the governing body “may require that specified information be undisclosed.” ORS 192.660(4).
 
C.   ORS 192.685 Commission’s authority to enforce executive session law 

ORS 192.685(1) permits persons to complain to the commission that a public official violated the executive session law. When the commission receives a complaint, it reviews and investigates it “as provided by ORS 244.260” and may impose civil penalties “as provided by ORS 244.350.” ORS 192.685(1).

 
D.   ORS 244.260 Procedure for addressing alleged violations 

ORS chapter 244 sets out ethics laws for Oregon public officials and charges the commission with enforcing those laws. ORS 244.260 establishes the complaint, investigation and adjudicatory process for violations of ORS chapter 244. ORS 192.685 requires the commission to use the process specified in ORS 244.260 to respond to complaints of executive session law violations.

 
E.   ORS 244.350 Civil penalties 

ORS 244.350(2)(a) authorizes the commission to impose civil penalties of up to $1000 for a violation of any provision of ORS 192.660, except as provided in subsection 2(b). Subsection 2(b) prohibits the commission from imposing a civil penalty “if the violation occurred as a result of the governing body of the public body acting upon the advice of the public body’s counsel.”
 
II. QUESTION 1 – Meaning of terms concerning news media

We first address the meaning of “representatives of the news media” for purposes of ORS 192.660(4). We then clarify the meaning of terms used in Attorney General Opinions that attempted to clarify the meaning of “representatives of the news media,”specifically “institutionalized” news media and “bloggers and others using these technologies.” Last, we discuss the meaning of “member” of the news media and “employee, agent or contractor of a news media organization” as used in ORS 192.660(5).

 
A. “Representatives of the news media”

The fundamental issue underlying the commission’s questions is the difficulty of interpreting and applying the provisions of the Public Meetings Law permitting “representatives of
the news media” to attend executive sessions of public meetings. Understanding the scope of this statutory phrase will illuminate many of the related questions posed by the commission. The Public Meetings Law itself does not define. “representatives of the news media” for purposes of ORS 192.660(4) and Oregon appellate courts have not interpreted the phrase. This office has interpreted the phrase in several Attorney General Opinions, including the Manual. We start by summarizing those opinions.
 
1. ATTORNEY GENERAL OPINIONS
a.   1976 Opinion
 
ORS 192.660(4) was enacted as part of the original Public Meetings Law in 1973.
 
Or Laws 1973, ch 172, § 6. In 1976 we were asked to specify the criteria that a public body should use to determine whether a person qualifies as a “representative of the news media.” We were also asked whether high school newspapers qualified as “news media.” Letter of Advice dated May 31, 1978, to Representative Dave Frohnmayer. We opined that by using the word “representatives,” the legislature intended the requirement to be limited to “institutionalized” news media. We did not expound on our thinking or explain what we meant by “institutionalized.” We also concluded that “news media” encompassed only media that have a natural interest in the subject matter of the executive session, because only they would use information gained in executive sessions for future reporting. We further opined, based on federal law from another context, that the size of the medium’s audience is not a proper criterion. Finally, we advised that determining who is a representative of the news media is a question of fact to be made in accordance with those criteria. Applying those criteria, we concluded that a reporter for a high school newspaper was a representative of the news media. Id. at 2.
 
b. 1979 Opinion

In 1979 we were asked essentially the same question -whether a high school newspaper reporter qualified as a representative of the news media for purposes of an executive session held by a school board. 39 Op Atty Gen 600 (1979). We observed that the purpose for allowing news media representatives to attend executive session was twofold: (1) to permit them to get background information to understand and report about the ultimate decision; and, (2) to serve as watchdogs to help ensure that governing bodies use executive sessions for legitimate purposes. Id at 600-01. We concluded that the first purpose:
 
is fulfilled by attendance of news-gathering representatives (i.e. reporters) of those news-disseminating media which ordinarily report activities of the body. Thus the advertising manager of a newspaper is not a representative of the newspaper for purposes of this statute, and a periodical containing only hunting and fishing news and related material is not a news medium for purposes of the statute.
 
Id at 603 (emphasis in original).
 
We concluded that a “bona fide representative of a school newspaper” is a representative of the news media if “the newspaper ordinarily covers news germane to the subject of the executive session.” Id.  We further concluded that, if the board had prohibited the paper from covering the matters discussed in executive session (such as faculty discipline), the paper would not qualify as a news medium for purposes of ORS 192.660(4), because it would not cover news germane to the subject of the executive session. In other words, it was not enough that the paper ordinarily reported about activities of the school board, it qualified as a news medium for purposes of ORS 192.660(4) only if it also covered the matters to be discussed in the executive session.
 
c. 2014 Manual  

In Attorney General Manuals issued after those opinions, including the 2014 update, we clarified that:
 
[Representatives of the news media include[s] news-gathering representatives of institutionalized news media that ordinarily report activities of the body. This interpretation should be expanded to include representatives of media that ordinarily report to the general public on matters of the nature under consideration by the body. MANUAL at 172 (2014) (footnote omitted) (emphasis in original).

Under that test, a person could qualify as a representative of the news media either because the news medium that they represent ordinarily reports activities of the governing body or because the medium ordinarily reports to the general public on the matters being considered by the governing body.
 
In addition, the Manual observes that “[c]urrent technologies make it easy to disseminate information to a potentially broad audience. Bloggers and others using these technologies sometimes * * * assert[] that they are representatives of the news media.” Id. We opined that “representatives of the news media” is not limited to “traditional print media[.]” Id. We advised that, because “[t]he law does not establish bright lines regarding publication schedule, the size of the media organization, or audience size” and “no clear definition of ‘news media’ exists” the decision whether representatives of non-traditional news media qualify “must be made on a case­ by-case basis.” Id We advised governing bodies to consult with counsel when faced with such a request. Id
 
2. Reconsidering the meaning of “representatives of the news media”

a.   Methodology for interpreting statutory text
 
The commission asks us to clarify the meanings of “representatives of the news media,” “institutionalized” and “bloggers and others using these technologies.” It also asks whether a governing body may exclude a person claiming to be a representative of the news media because the person is not a “news-gathering” representative, or because the medium they represent does not ordinarily report about the activities of the governing body or matters under consideration by the body.
 
Our 1976 and 1979 opinions predate the Oregon Supreme Court’s adoption of the current . statutory interpretation methodology in PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993) as modified in State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009). These questions prompt us to revisit the meaning of “representatives of the news media” applying that methodology.
 
Under that methodology, the goal is to determine the legislature’s intent. We do so by examining the text, context and pertinent legislative history. State v. Gaines, 346 Or at 171-172. If the meaning of the text remains ambiguous after examining the text, context and pertinent history, we may apply maxims of statutory interpretation. Id. at 172.
 
b. Text
 
Courts usually give commonly-used terms their ordinary meanings. See, e.g., State v. Briney, 345 Or 505, 511, 200 P3d 550 (2008)(stating rule). The phrase “representatives of the news media” has no commonly-accepted plain meaning. See MANUAL (1973) at 5, n 3 (“there is no common definition of ‘representatives of the news media.’”), MANUAL (2014) at 172 (“no clear definition of ‘news media’ exists.”).
 
Alternatively, courts will apply the well-established legal meaning of a phrase. See, e.g., Nibler v. ODOT, 338 Or 19, 22, 105 P3d 360 (2005) (applying well-established legal meaning of a term gleaned from the case law). But “representatives of the news media” does not have a well-established legal meaning either. To the contrary, many courts have pointed out that determining who is a representative of the media is notoriously difficult. See, e.g., Snyder v. Phelps, 580 F3d 206, 219 n 13, (4th Cir 2009), aff’d 131 S Ct 1207 (2011) (“Any effort to justify a media/nonmedia distinction rests on unstable ground given the difficulty of defining with precision who belongs to the ‘media.”‘); Flamm v. Am. Ass’n of Univ. Women, 201 F3d 144, 149 (2d Cir 2000)(“a distinction drawn according to whether the defendant is a member of the media or not is untenable.”).
 
Because the phrase has no clear ordinary meaning or well-established legal meaning, we attempt to determine its meaning by first parsing its constituent words. There are two pertinent ordinary meanings of the noun “representatives.”

The first is “one that .stands for a number or class (as of persons or things) : one that in some way corresponds to, replaces, or is equivalent to someone or something else[.]” WEBSTER’S THIRD NEW INT’L DICTIONARY at 1926-27 (2002).(FN1)

The second is “one that represents another or others in a special capacity: such as * * * * * b (1): one that represents another as agent, deputy, substitute, or delegate usually being invested with the authority of the principal[.]” Id. It is not clear from the text alone, whether the legislature intended “representative” in the first or second sense.
 
Turning to “news media,” the plain meanings of “news” are “a report of a recent event: new information: fresh tidings[,]” “what is reported in a newspaper, news periodical, or news broadcast[,]”and “matter that is interesting to newspaper readers or news broadcast audiences : matter that is suitable for news copy.” Id. at 1524. “Media” is the plural of “medium” the pertinent definition of which is “a channel, method, or system of communication [or] information * * * <a book needs the widest possible discussion in the reviewing media of the country whether magazine, newspaper, radio, television, or public platform[>.]” Id at 1401, 1403, respectively. Putting the terms together, news media” means channels, methods, or systems of communicating recent events or new information of interest to the recipients. Daily or weekly newspapers or broadcasts, for instance, would qualify as they report recent events” and new information” that is newsworthy.
 
Questions left unanswered by examination of the text alone are: (1) whether a person must demonstrate a special relation to a particular news medium to qualify as a “representative” ; (2) if so, what that relationship must be; (3) whether and what “public platforms” qualify as “news media” and, (4) how often a medium must publish or broadcast for what it reports to be considered “recent events” or “new information?”
 
c. Context

Turning to the context, the phrase is used in ORS 192.660, the executive session law. The purpose of that law is to permit governing bodies to discuss certain matters outside of public view. It reflects the legislature’s judgment that the public is better served by confidentiality than transparency in those circumstances. Consistent with that judgment, ORS 192.660(4) permits governing bodies to require news media who attend executive sessions not to disclose sensitive information to the public. At the same time, the function of the news media is to disseminate news to the public. ORS 192.660(4) permits media representatives to attend executive sessions and report non-confidential information to the public while keeping sensitive information confidential. This statutory context does not shed much light on who the legislature intended “representatives of the news media” to include.(FN2) On the other hand, the history of media technology advances prior to 1973 provide compelling contextual reasons to think that the legislature would have anticipated that new mediums for disseminating news could emerge.
 
There is nothing to suggest that the legislature intended to preclude individuals working in as­ yet-undeveloped mediums from qualifying as representatives of the media for purposes of executive session attendance.
 
d. Legislative History

ORS 192.660(4) was a provision of the original Public Meetings Law, which was enacted in 1973 as Senate Bill 15 (1973). Or Laws 1973, ch 172, § 6. As introduced, Senate Bill 15 did not require governing bodies to allow news media to attend executive sessions. The first suggestion that it should permit such attendance arose in a public hearing before the Joint Special Committee on Professional Responsibility. Co-chair Ingalls mentioned that “newspapers” had been attending school board meetings and labor negotiations and asked if the bill would close those meetings. He also asked whether school boards or teachers could vote to close those meetings to ”the press.” Charles Habernigg, representing Common Cause, responded that although the public would not have a right to attend labor negotiations, if a “member of the press” had a previous understanding, it should continue. Minutes, Joint Special Committee on Professional Responsibility (SB 15), February 26, 1973 at 6. Myer Avedovech, Attorney for the City of Milwaukie, testified that the city council often held “pre-meetings” before its public meetings. Representative Paulus asked if “the press” was invited to those meetings. He replied that they were invited but most chose not to attend; usually one reporter came. Id. at 9.
 
In a March 5th meeting of the committee, two other witnesses testified about instances where “the press” had been allowed to attend private meetings. A Woodburn Common Council member, Harold Reaume, testified that the city regularly held non-public pre-meetings that “the press” was welcome to attend. He opined that when the press did not attend “undesirable things”  happened. He said that pre-meetings were used to obtain agreement before the public meeting and that statements made in the pre-meeting were not repeated in the public meeting, hence citizens had no way of knowing their public officials’ opinions on the issues. Minutes, Joint Special Committee on Professional Responsibility (SB 15), March 5, 1973 at 2.
 
Bill Keller, an education reporter for The Oregonian, testified about an instance where “the press” had been allowed to attend a closed school board meeting but had been asked not to disclose any information except the board’s general direction. He testified that although there were times that school board business should be conducted privately, the privilege could be abused. He suggested that when a school board met privately, the press should be allowed to attend “as observers.” In response to a question from Co-chair Ingalls, he testified that he felt no obligation to obey a prohibition on reporting certain information and would report matters he felt vital to the public unless given good reason not to. Id at 3-4.
 
Representatives from several local newspapers and from the Oregon Newspapers Publishers Association (ONPA) testified at a hearing on March 12th. Wally Cowen, a local newspaper publisher and representative of the ONPA, testified that “the press” and the public were the same thing and that the press was a vehicle for information to the public. He felt that Senate Bill 15 did not afford any privilege to the press, but assured the public access, through the media, to the workings of the bureaucracy. Cowen testified that the ONPA’s position was that all meetings should be open to the public. Minutes, Joint Special Committee on Professional Responsibility (SB 15), March 12, 1973 at 1-2. Senator Fadeley asked whether he would support executive sessions if the press was allowed to attend but the public was not. Cowen answered that if the press were entitled to attend, then everyone should be invited. Id. at 2.
 
Phil Bladine, also a newspaper publisher and representative of the ONPA, testified against allowing any executive sessions except in personnel cases where he suggested that the press should be allowed to attend but “use good judgment in relating things to the public.” He stressed that it was a “newspaperman’s responsibility” to see that the public get to meetings. He said that in sensitive areas concerning individuals the press “has a confidence with that individual and it is seldom broken.” Chair Ripper asked about the problem of an “unfriendly press” and what should be done when it distorted facts. Bladine responded that everyone should not be penalized for the actions of a few. Id. at 3. Hal Schlitz, a publisher of a local paper, testified that relations between the paper and the public bodies had been very good. Id at 4.
 
Following that testimony, the bill was amended to permit but not require representatives of the news media to attend executive sessions. It specified that they could attend under such conditions governing the disclosure of information as may now exist” and may be agreed to by the governing body and the representatives of the news media. Amendments to Second Amended Draft SB 15, § 6(3) (1973). The committee considered those amendments at a March 19th work session. An unidentified legislator suggested that the section be deleted.

Senator Heard responded that the section was in the bill because of the testimony heard by the committee that some members of the press had good relations with governing bodies and that if the section was not included, this relationship would change. Co-chair Ingalls said that without the section the press could be excluded from meetings where they were presently included. Minutes, Joint Special Committee on Professional Responsibility (SB 15), March 19, 1973 at 10. Senator Fadeley suggested making the requirement mandatory rather than permissive. Co-chair Ingalls suggested deleting the “as may now exist” language. Both suggestions were adopted. Id.
 
At an April 7th meeting, Senator Carson moved to delete the requirement, which he considered potentially “dangerous.” Minutes, Joint Special Committee on Professional Responsibility (SB 15), April 7, 1973 at 7. He stated that the press in Lane County had an excellent working relationship with governing bodies that should not be disturbed by permitting the press to be the only “public” invited to watch the governing body. He argued that if the meeting concerned something the public should know, the public should be allowed to attend and a requirement that allowed only “the press” to watch the governing body might endanger good relations with governing bodies, because who, he asked, would watch the press? He also observed that allowing the press to attend and to operate under a shield law would put them in a very interesting position. Id.
 
Co-chair Ingalls replied that the press was allowed to attend executive sessions not to report the meeting but to use the results of the meeting as background information for future reporting. Id.  He asked Roger Williams, a representative of the ONPA, for his thoughts. Williams testified that “the press” did not want the privilege of attendance; it wanted to be the vehicle for reporting. Id. at 7-8. Senator Carson’s motion to delete the requirement failed. Id. at 8.
 
Subsequent discussions and proposed amendments concerned whether the requirement should be mandatory or permissive and whether the governing body and representative were required to agree to nondisclosure. For example, on May 15, 1973, Senator Carson expressed concern that the bill mandated that parties agree to what could not be disclosed and the effect would be to have “the news media (rather than the legislature) determining what is or is not an executive session.” He recommended remedying that by making both press attendance and nondisclosure agreements discretionary. Minutes, Joint Special Committee on Professional Responsibility (SB 15), May 15, 1973 at 1.
 
Senator Heard agreed and said that he felt the Senate members on the floor would feel the same way. Id. Co-chair Ingalls said that the “question was a matter of honor” and “the news media would not print information until they received background information.” Id. Senator Heard suggested that the news media be excused from the meeting if agreement could not be reached about what could be reported. Senator Carson agreed. Co-chair Ingalls felt that the bill already stated that. Id. The committee ultimately decided to amend the bill to provide that representatives of the news media “shall” be allowed to attend “under such conditions governing the disclosure of information as may be agreed to by the governing body and the representatives of the news media prior to such executive session.” Or Laws 1973, ch 172, § 6(4).
 
In sum, legislators and lay witnesses alike referred to ”the press” when discussing the requirement to permit “representatives of the news media” to attend executive session. They appeared to consider “representatives of the news media” to be synonymous with “the press.”

Pertinent definitions of the “press” are “newspapers, periodicals, and often radio and television news broadcasting regarded as a group_  * * * news reporters, publishers, and broadcasters as a group.” WEBSTER’S at 1794. Those definitions are consistent with “representatives of the news media” in the sense of representatives of newspapers, news periodicals and radio and television news broadcasts. Additionally, representatives of state and local newspapers, newspaper publishing associations and broadcasting associations were the ones who testified at the Public Meetings Law hearings generally and specifically about having been invited to attend closed meetings in the past.
 
The history also reveals that the purposes of the requirement were to: (1) require governing bodies to continue to allow news-gathering representatives who had been invited to closed meetings before enactment of the Public Meetings Law to attend executive sessions after enactment of the Public Meetings Law; (2) to foster good relations with news media organizations; (3) to provide a mechanism to ensure that governing bodies limited executive sessions to permissible purposes; and, (4) to permit the media to gain valuable background information for future reporting. At the same time, the legislature was concerned about the press not disclosing confidential information.
 
It is evident from the history that the legislature had in mind the news-gathering representatives of state and local newspapers who had been invited to attend closed meetings before enactment of the Public Meetings Law. Permitting their attendance served all of the purposes identified for the requirement. That limited and known group of trained professional journalists also would have been accountable for disclosing conflicts, reporting fairly, and protecting legitimately confidential information.
 
On the other hand, the legislature used broad and ambiguous language in enacting the requirement that potentially includes many other types of media representatives. The history contains no discussion about whether other types of media representatives should be allowed to attend executive sessions. And the 1973 Legislative Assembly could not have foreseen subsequent technological changes that would enable the rise of a large class of “citizen journalists.
 
3. Application of Interpretive Methodology to the Commission’s Questions
 
Having set out the framework for interpreting these provisions, and having identified the relevant text, context and legislative history, we now apply those tools to the commission’s various questions about the phrase “representatives of the news media.”

a. “Representatives” means news gatherers

We conclude that “representatives” in the phrase “representatives of the news media” is intended to encompass “news-gathering representatives.” This determination is based on the legislative history, which strongly suggests that news gatherers were the people the legislature had in mind. The history establishes that news-gathering representatives would have been the ones invited to closed meetings before enactment of the Public Meetings Law, which is the practice that the legislature sought to codify. They are also the ones who would report non­ confidential information and gather information for future reporting.
 
b. “News media” means “institutionalized” news media

We next address whether the requirement is limited to “institutionalized media” as our earlier opinions conclude, and, if so, what that means.

“Institutional media” is a phrase often employed by the federal courts as a synonym for “the media” or “the press.” See e.g., Austin v. Michigan Chamber of Commerce, 494 US 652, 668, 110 S Ct 1391, 108 L Ed 2d 652 (1990) (stating that the “media” exception is meant to prevent hindrance to the “institutional press.”); Dun & Bradstreet, Inc. v. Greenmoss Building Inc., 472 US 749, 784, 105 S Ct 2939, 86 L Ed2d 593 (1985) (distinguishing between “institutional media” and “other individuals or organizations engaged in the same activities”). “Institutional media” appears to be used as a term to distinguish between “media” and individual speakers engaged in speech. Id at 784 & n 10 (noting the distinction between “institutional media” and other individual speakers and organizations as the distinction between “media” and “nonmedia.“); see also 39 Op Atty Gen at 601 (concluding that “news media” means “institutionalized news media” because it applies to “representatives.”).
 
As discussed, a “representative” represents others or another, rather than appearing personally. The statute’s use of the term “representatives” is consistent with our longstanding interpretation that “news media” means institutional news media. An “institution” is commonly understood to mean an established society, corporation or organization. Hence, “institutional” news media” means an established news media organization.
 
Federal courts have not attempted to define “institutional media” with any precision. Instead, they consistently have concluded that it is not possible, for purposes of First Amendment analysis, to distinguish between the “institutional media” and other speakers. An Oregon Federal District Court, for instance, stated that:
 
The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others writings, or tried to get both sides of a story. Obsidian Finance Group v. Cox. No. 12-35319 at 7 (January 17, 2014).
 
But ORS 192.660(4) is not intended to ensure a First Amendment right. The United States Supreme Court has opined that the press has no constitutional right to access information not available to the public or to attend executive sessions. See Branzburg v. Hayes, 408 US 665, 684-85, 92 S Ct 2646, 33 L Ed 2d 626 (1972) (observing that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally and that the press is regularly excluded from executive sessions); see also, Trimble v. Johnson, 173 F Supp 651 (D DC 1959) (press has no constitutional right to attend meetings closed to the public). In fact, we are not aware of any other jurisdiction that permits representatives of the news media to attend executive sessions.
 
In this context, the legislature appears to have intended to distinguish between individuals and media entities and to permit only the latter to attend executive sessions. Without that distinction executive sessions essentially would be open to the public. Accordingly, we conclude that “representatives of the news media” for purposes of  ORS 192.660(4) includes news-gathering representatives who have a formal affiliation with an institutional news medium. A news media entity is institutional if it is formally organized for the purpose of gathering and disseminating news. As discussed below, however, the proliferation of technologies for disseminating information can make it difficult to identify which entities are institutional news media.
 
c. Specialty publications and broadcasts may qualify to attend

We conclude that media that cover specific subject areas for a special audience rather than a general audience also may qualify as news media if they regularly publish or broadcast the news. In previous guidance we have suggested that representatives of such media entities could only attend executive sessions if the entities ordinarily report on the activities of the governing body. Occasionally, we have also suggested that the specialty media must also ordinarily cover matters that are the subject of a particular executive session. Under that approach, a representative of a periodical containing only hunting and fishing news could attend the executive sessions of the Fish and Wildlife Commission but not of the Board of Chiropractic Examiners.

 
We see nothing in the text of the statute that requires or even suggests this result. Nor does the legislative history provide any reason to think that the legislature intended a rule under which news-gatherers would be admitted to some executive sessions but not to others. The text unambiguously permits representatives of the news media to attend executive sessions.
 
Presumably the legislature intended that those representatives would select for themselves which executive sessions they were professionally interested in attending. Although that rule might marginally increase the likelihood of individuals attending executive sessions for reasons other than the reasons the legislature had in mind, we do not see any reason to expect that representatives of specialty media would be more likely to do so than representatives of general news media. We consequently conclude that news gathering representatives of specialty media entities are permitted to attend executive sessions, whether or not the public body generally exercises authority relevant to their specialty area.
 
d. Use of technology to distribute news
 
We next address whether the requirement applies to mediums of communication like the internet. We suggest in the Manual that the requirement might apply, depending on the particular facts to “bloggers and others using these technologies.” MANUAL at 172. When the 1973 Legislative Assembly enacted the language in ORS 192.660(4) technologies like the internet, cable and satellite broadcasting either did not exist or were not commonly used to disseminate news.
 
But there is no indication that the 1973 Legislative Assembly intended to foreclose mediums that did not yet exist from qualifying as “news media.” On the contrary, the Oregon Supreme Court has declared that there is a “familiar legislative penchant for using general terms like a bucket, allowing various concepts to fall in (or out) with the passage of time. * * * * *. [T]he legislature need not constantly update each new addition to * * * [a] class-[if] the general terms are broad and flexible enough to adjust to changing circumstances.” Cook v. Workers’ Comp. Dept., 306 Or 134, 142, 758 P2d 854 (1988).
 
In this particular context, that familiar legislative penchant” is consistent with the reality that legislators in 1973 probably did not regard news media” as a fixed concept. Television news, for example, had started to become prominent only in the late 1940s meaning that it was approximately 25 years old when the Public Meetings Law was adopted.

The use of the medium for news distribution purposes had continued in the intervening years. Smith ed., Television: An International History (Oxford University Press 1995), 122-133 (tracing the development of television news from the late 1940s through the 1970s). Indeed, local television news came to prominence in the United States [s]ometime around 1970[.]” Id. at 131. That shift presumably would have been familiar to legislators in 1973. And, given that the reporters most likely to attend executive sessions would be local reporters, the development would presumably have informed legislators’ understanding about the nature of the news media” in this context.

Radio news, meanwhile, was approximately fifty years old, having developed since the 1920s and 1930s. Gorman and MacLean, Media and Society in the Twentieth Century (Blackwell 2003) at 57-58 (explaining the development of radio as a news medium starting in these decades). Both of these innovations represented significant advancement from the distribution of printed news following the introduction of the mobile printing press to Europe in the fifteenth century. There is nothing in the text, context or legislative history of the Public Meetings Law that suggests that, notwithstanding this history of innovation and change, legislators intended to adopt a definition of “news media” that would tie that concept to specific formats prevalent in 1973. We conclude that the term “news media” is broad and flexible enough to encompass subsequent technologies for delivering the news.
 
As a result, whether an online publication or broadcast qualifies depends on the same criterion for existing mediums: the entity must be institutional. “Blogs,” for example, come in  two general varieties. The first is “an online personal journal with reflections, comments and often hyperlinks, videos, and photos provided by the writer.” www.merriam-webster.com/. (FN 3)

The second is “a regular feature appearing as part of an online publication that typically relates to a particular topic and consists of articles and personal commentary by one or more authors[.]” Id.

The first type of “blogger” is an individual rather than a representative of a news media organization. But the second type of blogger might qualify as a representative of the news media depending on whether the particular facts demonstrated that the blogger represented an institutional news medium. Indications that an entity is institutional might include its business structure, the nature of its overall operations, regular public dissemination of news, and similar factors that demonstrate that it is formally organized for the purpose of gathering and disseminating news.

For instance, an individual who regularly posts for websites maintained by traditional media companies, such as nytimes.com or cnn.com, would constitute a “representative of the news media” within the meaning of ORS 192.660(4). Short of an affiliation with a traditional media outlet, indications that a blogger represents institutionalized media might include the existence of staff (rather than a single individual), a formal business structure within which the blog operates and regular publication.
 
B. Terms used in ORS 192.660(50

We now turn to the meaning of terms used in ORS 192.660(5). A governing body may convene an executive session to consult with counsel about current litigation or litigation likely to be filed. ORS 192.660(2)(h). ORS192.660(5) requires governing bodies to “bar any member of the news media from attending the executive session if the member of the news media is a party to the litigation or is an employee, agent or contractor of a news media organization that is a party to the litigation.” The commission asks us to clarify the meaning of the terms used in that provision relating to the news media.
 
1. Member of the news media

The relevant definition of “member” is “one of the individuals composing a society, community, association or other group.” WEBSTER’S at 1408. “Member” appears at first to be a potentially broader term than “representative. However, as ORS 192.660(5) is implicated only if a person is a “representative of the news media” otherwise entitled to attend executive sessions, in practice a “member of the news media” may be treated as synonymous with a “representative of the news media.” The obvious purpose of this language is to bar individuals from using ORS 192.660(4) to gain access to confidential attorney-client discussions about litigation to which they are parties whether or not the media organization that they represent is a party.      ·
 
2. Employee, agent or contractor of a news media organization

The prohibition on admitting “an employee, agent, or contractor of a news media organization that is a party to the litigation” precludes a news media organization from gaining access through their representative to confidential discussions about litigation to which the organization is a party. An “employee” is “one employed by another usually in a position below the executive level and usually for wages.” Id. at 743.

The pertinent definition of “employ” in this context is “to provide with a job that pays wages or salary or with a means of earning a living.” Id. An “employee of a news media organization” would mean a person who has a job with a news media organization that pays the person wages or a salary. The pertinent definition of “contractor” is “one that contracts: a party to a bargain: one that formally undertakes to do something for another * * * one that performs work according to a contractual agreement.” Id at 495. A person who contracts with a news media organization to cover stories or to report on matters specified in a contract would be a contractor of a news media organization. An “agent” is a person “who is authorized to act for or in the place of anther.” Id at 40. “Agent” is a broad term and may include representatives who are not “employees” or “contractors.”

The legislature likely specified all three of these terms to ensure that everyone who might qualify as a “representative of the news media” for purposes of gaining admittance to a meeting where the governing body discussed litigation with its counsel would be barred from attending if the news media organization that they represent is a party to the litigation.
 
III. QUESTION 2 – Permissible Grounds to Exclude News Media Representatives
 
The commission next asks whether governing bodies may exclude representatives of the news media from executive sessions for any reason other than those identified in ORS 192.660(4) (exclusion from deliberations with labor negotiators and meetings to consider confidential student records or expulsion) and ORS 192.660(5)(exclusion for parties to litigation being discussed with counsel).
 
A. Limit attendance to one representative from each news medium

The Manual states:

[a] governing body probably would be able to limit attendance to one representative of each medium wishing to be represented. The body should be able reasonably to limit total attendance to a number that would not interfere with deliberations.
MANUAL at J-5. Although this is a sensible policy and would not thwart the apparent purposes of the requirement, no statutory language supports it. The statute requires governing bodies to admit “representatives of the news media.” That requires governing bodies to admit any person who qualifies as a representative of a news medium and who is not subject to exclusion under ORS 192.660.
 
An alternative interpretation would require us to insert language into the statute to specify that governing bodies are required to admit “one” representative from each medium. A governing body could request that a news medium send only one representative, but, in the event that the request is ignored, the governing body should admit representatives who ask to attend.
 
B. Representatives with a personal interest in the matter discussed
 
The Manual also states that, with the exception of ORS 192.660(5) for parties to litigation being discussed with counsel, ORS 192.660 does not permit a governing body to exclude representatives who have a personal interest in the matter being discussed or a close relationship with someone who does. But we say that “[i]f the attendance of a reporter with a direct personal interest would frustrate the purpose of the executive session, a governing body could justify barring the individual. A reporter’s mere relationship to someone with a personal stake in the matter is probably not sufficient justification.” MANUAL at J-6.
 
On reconsideration, we conclude that a governing body has no authority to exclude a reporter who has a direct personal interest in the matter being discussed other than as provided in ORS 192.660(5). ORS 192.660(4) requires governing bodies to permit representatives of the news media to attend executive sessions. While the scope of the statutory phrase “representatives of the news media” may be ambiguous, the requirement to admit those who qualify is not. ORS 192.660(5) states the only ground on which a governing body may exclude a representative who has a direct personal interest in the matter being discussed. The legislature could have specified other grounds, but it did not.
 
C. Exclusion for failure to agree to nondisclosure or for disclosing confidential information from a prior executive session

The commission next asks whether it is lawful for a governing body to exclude a reporter who disclosed information from an earlier executive session that the governing body had specified should not be disclosed. ORS 192.660(4) requires governing bodies to allow media representatives to attend, but permits the body “to require that specified information be undisclosed.” “Require” means “to ask for authoritatively or imperatively : claim by right or authority : insist upon usually with certainty or urgency : DEMAND, EXACT.” WEBSTER’S at 1929. Although the provision does not state that a representative who refuses to agree to nondisclosure may be excluded from the meeting, one plausible interpretation is that the authority is necessarily implied from the governing body’s authority to “require” that specified matters not be disclosed.
 
But the provision’s amendment history does notsupport that interpretation. See Krieger v. Just, 319 Or 328, 336, 876 P3d 754 (1994) (amendment history is context for present version of statute); Strunk v. Public Employees Ret Bd., 338 Or 145, 189-90, 108 P3d 1058 (2005) (applying presumption that material changes in language create material changes in meaning).

As enacted in 1973, the provision required governing bodies to allow representatives to attend “under such conditions governing the disclosure of information as may be agreed to by the governing body and the representatives of the news media prior to executive session.” Or Laws 1973, ch 172, § 6(4). That language generally was construed to allow governing bodies to exclude representatives who refused to agree to nondisclosure and to bar attendance at future sessions for violating an agreement. 38 Op Atty Gen 2122, 2124 (1978). That interpretation was consistent with the legislative history of the 1973 version of the statute discussed above.
 
But the 1975 Legislative Assembly amended the statute to remove the language that had been construed to allow governing bodies to condition attendance on a nondisclosure agreement and to bar future attendance for violating an agreement. Or Laws 1975, ch 664, § 3. This office explained that:
 
The purpose of this amendment was evidently to make clear that news media representatives must be allowed to attend executive sessions * * * . At the same time, the governing body is given specific authority to require that specified information be undisclosed. However no specific statutory sanction is provided for use against a reporter who violates the nondisclosure requirement. The legislature apparently chose to rely upon the good faith of reporters in complying with the requirement. 38 Op Atty Gen at 2125.
 
In 1981, we specifically addressed whether a governing body could exclude a reporter who had disclosed confidential information from an earlier executive session until the reporter agreed to nondisclosure. Letter Opinion of the Attorney General dated March 30, 1981, to Representative Ben ‘Kip’ Lombard. We concluded that the statute provided no means of enforcement and we refused to imply one:
 
While it is possible that a court will hold that the right to impose an appropriate sanction is implied, we decline to read into the statute something not placed there by the legislature. It is quite conceivable that the legislature did intend to rely only on the good faith of media representatives. We accordingly construe the statute as it reads, and it reads ‘[r]epresentatives of the news media shall be allowed to attend executive sessions.’ We conclude that such a representative, who has arguably 9r actually violated a valid instruction not to disclose, cannot be barred from attending a later executive session.
 
Ina 1982 opinion, we were asked whether a governing body had any method to ensure that the media does not disclose confidential. information. In light of that question “we reconsidered [the 1981 opinion] but f{ound] no basis for modifying it.”   42 Op Atty Gen 392 (1982). We opined that a governing body “has no method of insuring that the media will not disclose confidential information. It can only request nondisclosure and rely on the good faith cooperation of the media, or drastically limit its own use of confidential information.” Id. at 398. We continue to hold to the conclusion in those opinions.
 
IV. QUESTION 3 – Commission’s authority to adopt rules to carry out its duties

We are next asked whether the commission has authority to adopt administrative rules to carry out its duty to review and investigate alleged violations of the executive session law. At the time the commission asked the question, it did not have explicit statutory authority to make rules. But since the commission asked the question, the Legislative Assembly has amended ORS 244.290, which gives the commission express rulemaking authority. Section (2) provides:
 
The commission shall adopt rules necessary to carry out its duties under ORS 171.725 to 171.785, 171.992, 192.660 and 192.685 and this chapter.

But the legislature simultaneously amended ORS 192.660 to exclude from the commission’s rulemaking authority the ability to determine by rule who qualifies as a representative of the news media:

(10) Notwithstanding ORS 244.290, the Oregon Government Ethics Commission may not adopt rules that establish what entities are considered representatives of the news media that are entitled to attend executive sessions under subsection (4) of this section.

Hence, the legislature has given the commission express authority to adopt rules necessary to carry out its duties under ORS 192.660 and 192.685. However, the commission may not adopt a rule that establishes what entities are representative of the news media.

We note that, in addition to its general rulemaking authority, the commission is required by ORS 244.290 to adopt one particular rule. Specifically, ORS 244.350(2)(a) authorizes the commission to impose civil penalties of up to $1000 for a violation of ORS 192.660.

ORS 244.290(2) requires the commission to adopt certain rules to implement ORS chapter 244, subsection (h) of which requires the commission to adopt a rule to “[s]et criteria for determining the amount of civil penalties that the commission may impose.” ORS 244.350(2) is a provision of ORS chapter 244 that authorizes the commission to impose civil penalties; therefore it must adopt a rule setting criteria for determining the amount of those penalties pursuant to ORS 244.290(2)(h).

V. QUESTION 4 – Effect of policies adopted by governing bodies

The next question arises because local governing bodies have begun adopting comprehensive policies establishing who they will consider to be “representatives of the news media” and what proof they will require to prove that status. The commission asks about the legal significance of such policies that: (1) impose screening criteria for determining who qualifies as a representative of the news media; (2) require preapproval of media credentials; (3) require advance notice that a representative of the news media will attend; or, (4) exclude persons for failing to give advance notice of attendance.

The short answer to this question is that governing bodies are bound by the statutory requirement to admit representatives of the media to executive sessions. To the extent that enforcing a policy would result in the exclusion of a person statutorily entitled to attend an executive session, the policy is inconsistent with ORS 192.660(4). In evaluating allegations that an individual was wrongly excluded from executive session, the commission must assess compliance with the statute regardless of a governing body’s policies.

Turning to the first particular type of policy the commission is concerned about, governing bodies may adopt screening criteria for “representatives of the news media” that are consistent with the meaning intended by the legislature as described in this opinion.

On the other hand, governing bodies are not required to accept a person’s mere assertion that they qualify as a representative of the news media. Consequently, a policy requiring proof of media status can be consistent with the Oregon Public Meetings Law. If the application of the policy results in excluding a person who offers sufficient proof to demonstrate that the person is, indeed a representative of the news media, that outcome would be out of compliance with the Public Meetings Law. (This seems most likely to arise if a policy requires specific types of credentials.) Similarly, the statute does not authorize excluding representatives of the news media for failure to provide their credentials within certain deadlines. The same is true for a policy requesting media representatives to notify the governing body in advance of their intent to attend an executive session. While that might be a good idea, and a courtesy, it cannot be made a requirement.

Finally, as discussed above, the Public Meetings Law does not permit a public body to exclude media representatives who have disclosed confidential information from prior executive sessions or who represent news media organizations that have done so. Enforcing a policy to the contrary would violate the statute.

CONCLUSION

The law permits news-gathering representatives of institutional media to attend executive sessions. The statutory term news media” is broad and flexible enough to encompass changing technologies for delivering the news. A governing body may not exclude a representative of the news media from an executive session except as specifically allowed by ORS 192.660(4) and (5). The commission generally may adopt rules to carry out its duty to enforce the executive session law, but it is prohibited by ORS 192.660(10) from adopting a rule that establishes which entities are considered representatives of the news media. Governing bodies may adopt policies relating to the admission of media representatives to executive sessions, but those policies cannot limit the statutory right of representatives of the news media to attend executive sessions. In evaluating allegations that an individual was wrongly excluded from executive session, the commission must assess compliance with the statute, regardless of a governing body’s policies.

                                                                           /s/ Ellen F. Rosenblum, Attorney General
 
FN 1 –The phrase was enacted by the 1973 Legislative Assembly. Or Laws 1973, ch 172, § 6. The pertinent definitions in the 1971 version of Webster’s do not differ from the 2002 version so we cite to the latter for ease of reference.

FN 2-
ORS 192.660(5), which excludes from attending certain executive sessions “members of the news media” and an “employee, agent or contractor of a news media organization” does not shed light on the meaning of ORS 192.660(4), because the latter was adopted by the 1973 Legislative Assembly and the former was not adopted until 1997. Or Laws 1997, ch 596, § 1; See Stull v. Hoke, 326 Or 72, 79-80, 948 P2d 722 (1997) (stating that a later-enacted statute is not context for interpreting an earlier statute).


FN 3 –
“Blog” is not defined in the 2002 print version of Webster’s, but is defined in the online version.

In 1998, Oregon pioneered a humane, legal alternative for people with terminal illness

In this political year, with its relentless din like the sounds of an agitated troupe of howler monkeys, it’s easy to feel a flood of cynicism and pessimism during all waking hours that makes even the nightmares of sleep seem benign in comparison.

Which is why it’s refreshing to take note of a positive milestone in Oregon political history, the 18th anniversary of the first use of Oregon’s Death with Dignity law, implemented in 1998. The law allows terminally ill Oregonians who are physically capable of self-administering prescription drugs to choose the time of their death. Fiercely opposed from the start, the law endures, a tribute to the basic good sense of Oregonians, who had to go around the Legislature and pass the measure by initiative.

None of the opponents’ lurid fears about the law have come true. So each year, a few score Oregonians are able to obtain a prescription and feel a huge sense of relief knowing that they are not helpless before the ravages of their disease and that they can end their suffering if they wish. Not surprisingly, many Oregonians obtain the prescription but never use it, but they benefit from the law just as much as if they did take the drugs. In their last days, they are freed from terror of the unknown and from overwhelming pain.

America tends to treat aging as a disease and death as an optional exercise, so it makes sense  that the movement for legal Death with Dignity found its first success in Oregon, a state that still prides itself on going its own way politically.

Below is the annual DHS data summary on the use of the Death with Dignity law, followed by the official DHS descriptions of the law and its history.

OREGON DEATH WITH DIGNITY ACT: 2015 DATA SUMMARY
 
For more information:  http://www.healthoregon.org/dwd
Contact: DWDA.info@state.or.us
 
Introduction

Oregon’s Death with Dignity Act (DWDA), enacted in late 1997, allows terminally‐ill adult Oregonians to obtain and use prescriptions from their physicians for self‐administered, lethal doses of medications.

The Oregon Public Health Division is required by the DWDA to collect compliance information and to issue an annual report. Data presented in this summary, including the number of people for whom DWDA prescriptions were written (DWDA prescription recipients) and the resulting deaths from the ingestion of the medications (DWDA deaths), are based on required reporting forms and death certificates received by the Oregon Public Health Division as of January 27, 2016. More information on the reporting process, required forms, and annual reports is available at: http://www.healthoregon.org/dwd.

 Participation Summary and Trends During 2015,

218 people received prescriptions for lethal medications under the provisions of the Oregon DWDA, compared to 155 during 2014 (Figure 1, above).

As of January 27, 2016, the Oregon Public Health Division had received reports of 132 people who had died during 2015 from ingesting the medications prescribed under DWDA.

Since the law was passed in 1997, a total of 1,545 people have had prescriptions written under the DWDA, and 991 patients have died from ingesting the medications. From 1998 through 2013, the number of prescriptions written annually increased at an average of 12.1%; however, during 2014 and 2015, the number of prescriptions written increased by an average of 24.4%. During 2015, the rate of DWDA deaths was 38.6 per 10,000 total deaths. (FN 1)

FN1 – Rate per 10,000 deaths calculated using the total number of Oregon resident deaths in 2014 (34,160), the most recent year for which final death data are available.

 A summary of DWDA prescriptions written and medications ingested are shown in Figure 2.

Of the 218 patients for whom prescriptions were written during 2015, 125 (57.3%) ingested the medication; all 125 patients died from ingesting the medication without regaining consciousness. Fifty of the 218 patients who received DWDA prescriptions during 2015 did not take the medications and subsequently died of other causes.

Ingestion status is unknown for 43 patients prescribed DWDA medications in 2015. Five of these patients died, but they were lost to follow‐up or the follow‐up questionnaires have not yet been received. For the remaining 38 patients, both death and ingestion status are pending (Figure 2).
 

Patient Characteristics

Of the 132 DWDA deaths during 2015, most patients (78.0%) were aged 65 years or older. The median age at death was 73 years. As in previous years, decedents were commonly white (93.1%) and well‐ educated (43.1% had a least a baccalaureate degree).

While most patients had cancer, the percent of patients with cancer in 2015 was slightly lower than in previous years (72.0% and 77.9%, respectively). The percent of patients with amyotrophic lateral sclerosis (ALS) was also lower (6.1% in 2015, compared to 8.3% in previous years). Heart disease increased from 2.0% in prior years to 6.8% in 2015.

Most (90.1%) patients died at home, and most (92.2%) were enrolled in hospice care. Excluding unknown cases, most (99.2%) had some form of health care insurance, although the percent of patients who had private insurance (36.7%) was lower in 2015 than in previous years (60.2%). The number of patients who had only Medicare or Medicaid insurance was higher than in previous years (62.5% compared to 38.3%).

Similar to previous years, the three most frequently mentioned end‐of‐life concerns were: decreasing ability to participate in activities that made life enjoyable (96.2%), loss of autonomy (92.4%), and loss of dignity (75.4%).
 

DWDA Process

A total of 106 physicians wrote 218 prescriptions during 2015 (1‐27 prescriptions per physician). During 2015, no referrals were made to the Oregon Medical Board for failure to comply with DWDA requirements. During 2015, five patients were referred for psychological/ psychiatric evaluation.

A procedure revision was made in 2010 to standardize reporting on the follow‐up questionnaire. The new procedure accepts information about the time of death and circumstances surrounding death only when the physician or another health care provider was present at the time of death. For 27 patients, either the prescribing physician or another healthcare provider was present at the time of death.

Prescribing physicians were present at time of death for 14 patients (10.8%) during 2015 compared to 15.7% in previous years; 13 additional cases had other health care providers present (e.g. hospice nurse). Data on time from ingestion to death is available for only 25 DWDA deaths during 2015. Among those 25 patients, time from ingestion until death ranged from five minutes to 34 hours. For the remaining two patients, the length of time between ingestion and death was unknown.
 

Table 1. Characteristics and end‐of‐life care of 991 DWDA patients who have died from ingesting DWDA medications, by year, Oregon, 1998‐2015

Methods
 
The Reporting System
 
OHA is required by the Act to develop and maintain a reporting system for monitoring and collecting information on participation in the Death with Dignity Act. To fulfill this mandate, OHA uses a system involving physician and pharmacist compliance reports, death certificate reviews, and follow‐up questionnaires from physicians.
 
When a prescription for lethal medication is written, the physician must submit to OHA information that documents compliance with the law. We review all physician reports and contact physicians regarding missing or discrepant data. OHA Vital Records files are searched periodically for death certificates that correspond to physician reports. These death certificates allow us to confirm patients’ deaths and provide patient demographic data (e.g., age, place of residence, educational attainment).
 
In addition, using our authority to conduct special studies of morbidity and mortality, we ask prescribing physicians to complete a follow‐up questionnaire after the patient’s death from any cause. Each physician is asked to confirm whether the patient took the lethal medications. If the patient took the medications, we ask for information that was not available from previous physician reports or death certificates – including insurance status and enrollment in hospice. We ask why the patient requested a prescription, including concerns about the financial impact of the illness, loss of autonomy, decreasing ability to participate in activities that make life enjoyable, being a burden, loss of control of bodily functions, uncontrollable pain, and loss of dignity. We collect information on the time from ingestion to unconsciousness and death, and ask about any adverse reactions. We do not interview or collect any information from patients prior to their death.
 
Because physicians are not legally required to be present when a patient ingests the medication, not all have information about what happened when the patient ingested the medication. Prior to 2010, the physician’s follow‐up questionnaire could be completed based on information from others who were present at the time of ingestion and death. However, during 2010, this procedure was changed so that the follow‐up questionnaire from the physician only addressed issues surrounding ingestion and death if the physician or another health care provider was actually present at the death of the patient. Due to this change and the fact that most physicians are not present at the time of death, more information pertaining to ingestion and death is unknown in the 2010 annual report (such as complications, health care provider presence at ingestion, and minutes between ingestion and unconsciousness and death) than in previous years.

Data Analysis
 
We classified patients by year of participation based on when they ingested the legally‐prescribed lethal medication. Using demographic information from Oregon death certificates, we compare patients who used the Death with Dignity Act with other Oregonians who died from the same diseases. Demographic‐ and disease‐specific DWD rates were computed using the number deaths from the same causes as the denominator. The overall DWD rates by year were computed using the total number of resident deaths. Annual rates were calculated using numerator and denominator data from the same year when  possible, SPSS were used in data analysis.  Statistical significance was determined using Fisher’s exact test, the chi‐square test, the chi‐square for trend test, and the Mann‐Whitney test.

Death with Dignity Act Requirements
 
The Death with Dignity Act (DWDA) allows terminally ill Oregon residents to obtain and use prescriptions from their physicians for self-administered, lethal medications. Under the Act, ending one’s life in accordance with the law does not constitute suicide. The DWDA specifically prohibits euthanasia, where a physician or other person directly administers a medication to end another’s life.
 
To request a prescription for lethal medications, the DWDA requires that a patient must be:
 

  • An adult (18 years of age or older),
  • A resident of Oregon,
  • Capable (defined as able to make and communicate health care decisions), and
  • Diagnosed with a terminal illness that will lead to death within six months.

 
Patients meeting these requirements are eligible to request a prescription for lethal medication from a licensed Oregon physician. To receive a prescription for lethal medication, the following steps must be fulfilled:
 

  • The patient must make two oral requests to his or her physician, separated by at least 15 days.
  • The patient must provide a written request to his or her physician, signed in the presence of two witnesses.
  • The prescribing physician and a consulting physician must confirm the diagnosis and prognosis.
  • The prescribing physician and a consulting physician must determine whether the patient is capable.
  • If either physician believes the patient’s judgment is impaired by a psychiatric or psychological disorder, the patient must be referred for a psychological examination.
  • The prescribing physician must inform the patient of feasible alternatives to DWDA, including comfort care, hospice care, and pain control.
  • The prescribing physician must request, but may not require, the patient to notify his or her next-of-kin of the prescription request.

To comply with the law, physicians must report to the Oregon Health Authority (OHA) all prescriptions for lethal medications. Reporting is not required if patients begin the request process but never receive a prescription. In 1999, the Oregon legislature added a requirement that pharmacists must be informed of the prescribed medication’s intended use. Physicians and patients who adhere to the requirements of the Act are protected from criminal prosecution, and the choice of DWDA cannot affect the status of a patient’s health or life insurance policies. Physicians, pharmacists, and health care systems are under no obligation to participate in the DWDA.
 
Reporting requirements
 
Within 7 calendar days of writing prescription:
Patient’s written request for medication/consent form Attending physician compliance form
Consulting physician compliance form
Psychiatric/Psychological consultant compliance form (if applicable)

Within 10 calendar days of the pharmacy dispensing the lethal medications:
Pharmacy dispensing record form

Within 10 calendar days of the patient’s death and/or ingestion of lethal medications: Attending physician’s follow‐up form

The Oregon Revised Statutes specify that action taken in accordance with the DWDA does not constitute suicide, mercy killing or homicide under the law.
 
Links to statutes can be found at https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/Deathwit hDignityAct/Pages/ors.aspx.

Death with Dignity Act History
 
The Oregon Death with Dignity Act (DWDA) was a citizen’s initiative first passed by Oregon voters in November 1994 with 51% in favor.

Implementation was delayed by a legal injunction, but after proceedings that included a petition denied by the United States Supreme Court, the Ninth Circuit Court of Appeals lifted the injunction on October 27, 1997. In November 1997, a measure asking Oregon voters to repeal the Death with Dignity Act was placed on the general election ballot (Measure 51, authorized by Oregon House Bill 2954). Voters rejected this measure by a margin of 60% to 40%, retaining the Death with Dignity Act. After voters reaffirmed the DWDA in 1997, Oregon became the first state allowing this practice.

On November 6, 2001, U.S. Attorney General John Ashcroft issued a new interpretation of the Controlled Substances Act, which would prohibit doctors from prescribing controlled substances for use under the DWDA. After multiple hearings and appeals, the Oregon DWDA was upheld and remains in effect today.

In 2008, the State of Washington passed Initiative 1000, the state’s Death with Dignity Act, which became law on March 5, 2009. Information about the Washington Death with Dignity Act can be found at http://www.doh.wa.gov/dwda.

In 2009, the Montana Supreme Court ruled that physicians may assist patients in ending their lives by prescribing lethal medications (to be self-administered by the patient), citing the state’s Rights of the Terminally Ill Act. Information on the Montana Supreme Court decision can be found at http://searchcourts.mt.gov/getDocument?vid={88A87FE0-2501-438A- AC31-CCE62D37C894}.

[See “Oregon leads California for a Change” below for update.]

Excerpts from the first report

DISCUSSION / CONCLUSIONS 
Currently, Oregon is the only place in the world where physician-assisted suicide is legal. Physician-assisted suicide was briefly legalized in the Northern Territory of Australia between July, 1996 and March, 1997.5 In the Netherlands, physician-assisted suicide has been practiced for many years; although technically illegal, it has been rarely prosecuted.

The Death with Dignity Act continues to be the focus of highly charged ethical, legal, and medical debates. The role of the Oregon Health Division is neither to take sides nor to settle these controversies; however, we believe that the data collected on 1998 participants in the Death with Dignity Act and on patients who chose physician-assisted suicide are important to all concerned parties. Among the important findings from our 1998 data collection and comparison studies are:

              Physician-assisted suicide accounted for approximately 5 of every 10,000 deaths in Oregon in 1998. Patients with cancer who chose physician-assisted suicide accounted for 19 of every 10,000 cancer deaths in Oregon in 1998.

              Patients who chose physician-assisted suicide in 1998 were similar to all Oregonians who died of similar underlying illnesses with respect to age, race, sex, and Portland residence.

              Patients who chose physician-assisted suicide were not disproportionately poor (as measured by Medicaid status), less educated, lacking in insurance coverage, or lacking in access to hospice care.

              Fear of intractable pain and concern about the financial impact of their illnesses were not disproportionately associated with the decision to choose physician- assisted suicide.

              The choice of physician-assisted suicide was most strongly associated with concerns about loss of autonomy and personal control of bodily functions.

              In 1998, many hospitals and physicians in Oregon were unable or unwilling to participate in physician-assisted suicide.

              Physicians who wrote prescriptions for lethal medications for patients who chose physician-assisted suicide represented a wide range of specialties, ages, and years in practice.

Considerable debate has focused on the characteristics of terminally-ill patients who choose physician-assisted suicide. Some feared that patients who were minorities, poor, or uneducated would more likely be coerced into choosing physician-assisted suicide. Others feared that terminally-ill persons would feel pressured, either internally or through external forces (e.g., family members or health care systems), to choose physician-assisted suicide because of the financial impact of their illnesses. To date, the Oregonians who have chosen physician- assisted suicide have not had these characteristics.

Patients who chose physician-assisted suicide and our two comparison groups were similar with respect to age, sex, race, education level, and health insurance coverage. No person who chose physician-assisted suicide expressed a concern to their physician about the financial impact of their illness. The proportion of patients with private insurance and medicaid were similar among those who chose physician-assisted suicide and among controls. This provides some evidence that socioeconomic status was not associated with the decision to take lethal medications.

End of life care has made great strides in Oregon in recent years. Oregon ranks third, nationally, in the rate of hospice admissions. More than two-thirds of the patients who chose physician- assisted suicide were enrolled in a hospice program when they died. A similar proportion of control patients were also enrolled in hospice. Of the four patients who chose physician-assisted suicide, but who were not receiving hospice care, three had repeatedly refused enrollment offers. To date, lack of access to hospice care has not been associated with the decision to take lethal medications. Fear of intractable pain was also an end of life care issue not associated with physician-assisted suicide. Only one person who chose physician-assisted suicide expressed concern to her physician about inadequate pain control at the end of life (compared with 15 of 43 control patients). This may reflect confidence in one’s end of life care. Alternatively, recipients of lethal medications may not have been concerned about end of life pain because physician- assisted suicide offered them the option of avoiding intractable pain.

The primary factor distinguishing persons in Oregon selecting physician-assisted suicide is related to the importance of autonomy and personal control. Patients who chose physician-assisted suicide were more likely to be concerned about loss of autonomy and loss of control of bodily functions than control patients.* Autonomy was a prominent patient characteristic in physicians’ answers to open-ended questions about their patients’ end of life concerns. Many prescribing physicians reported that their patients decision to request a lethal prescription was consistent with a long-standing philosophy about controlling the manner in which they died.  The fact that 79% of persons who chose physician-assisted suicide did not wait until they were bedridden to take their lethal medication provides further evidence that controlling the manner and time of death were important issues to these patients. Thus, in Oregon the decision to request and use a prescription for lethal medications in 1998 appears to be more associated with attitudes about autonomy and dying, and less with fears about intractable pain or financial loss.

There are several limitations that are important to consider when interpreting these results. First, the number of patients who chose physician-assisted suicide in 1998 was relatively small. This limits our ability to detect, from a statistical standpoint, small differences between the characteristics of persons who chose physician-assisted suicide and control patients. Second, the possibility of physician bias must be considered. Physicians prescribing lethal medications may have spent more time exploring end of life concerns and care options with patients who requested lethal medications. Because of the unique nature of lethal prescription requests, physicians may have recalled their conversations and interactions with requesting patients in greater detail than physicians of terminally ill patients who did not request such prescriptions. Finally, the Death with Dignity Act requires the OHD to collect data on patients and physicians who participate in the Act. However, the OHD must also report any noncompliance with the law to the Oregon Board of Medical Examiners for further investigation. Because of this obligation, we cannot detect or collect data on issues of noncompliance with any accuracy. A 1995 anonymous survey of Oregon physicians found that 7% of surveyed physicians had provided prescriptions for lethal medications to patients prior to legalization. We do not know if covert physician-assisted suicide continued to be practiced in Oregon in 1998.

Considerable debate has also surrounded the interpretation of very limited data on the medications prescribed for physician-assisted suicide and the rapidity of their effects. With one exception, all of the lethal prescriptions were similar. This may reflect information available from Oregon physician-assisted suicide advocacy groups. Although all patients were unconscious within 20 minutes of medication ingestion, the time from ingestion to death ranged from 15 minutes to 11.5 hours. In four instances, patients died more than 3 hours after taking the medications, including the one patient who died 11. 5 hours afterward. The last patient fell asleep 5 minutes after taking all 9 grams of barbiturate, the same prescription given to 14 of the 15 persons who chose physician-assisted suicide. Physicians, patients, and their families should be aware that the time from medication ingestion to death is not always rapid or predictable.

In 1998, not all hospital systems or physicians in Oregon participated in physician-assisted suicide. Federal law prohibits participation by patients or physicians within federal health care systems such as Veterans Administration Hospitals and Indian Health Service clinics. Some health care systems, including at least one Catholic medical system in Oregon, have placed similar restrictions on patients and staff within their facilities. Although some physicians are unable to participate in the Death with Dignity Act because of restrictions by their employers, other physicians have chosen not to participate in physician-assisted suicide because of other concerns. Six of the patients who chose physician-assisted suicide had to approach more than one physician before finding one that would start the prescription process. Two-thirds of otherwise eligible control patients, had they asked, would not have received such prescriptions from the physician that we interviewed. Both findings provide evidence that a substantial proportion of Oregon physicians are not willing to participate in legalized physician-assisted suicide.

Physicians who wrote prescriptions for lethal medications for those patients who chose physician- assisted suicide represented a wide range of medical specialties, ages, and years in practice and were similar to physicians for control patients with respect to these characteristics. Several Oregon physicians have publicly acknowledged their participation in the Death with Dignity Act, but the majority of prescribing physicians have remained anonymous. Several physicians commented that despite the emotional impact of participating in a physician-assisted suicide, they were unwilling to share their experience with others because they feared repercussions from colleagues or patients if they did not keep their identity as a Death with Dignity Act participant anonymous.

In publishing this report, we recognize that the Death with Dignity Act has been and remains a focal point for ethical, legal, and medical debate. As required by the Act, we will continue to collect information regarding compliance with the statute, and we emphasize that our role is to do so as a neutral party. In accordance with the Act, we will make available to the public an annual statistical report of the information collected. Future reports may not, however, contain the level of detail provided in this first study.

Q: What is Oregon’s Death with Dignity Act?
A: The Death with Dignity Act (the Act) allows terminally-ill Oregonians to end their lives through the voluntary self-administration of lethal medications, expressly prescribed by a physician for that purpose.

The Act was a citizens’ initiative passed twice by Oregon voters. The first time was in a general election in November 1994 when it passed by a margin of 51% to 49%. An injunction delayed implementation of the Act until it was lifted on October 27, 1997. In November 1997, a measure was placed on the general election ballot to repeal the Act. Voters chose to retain the Act by a margin of 60% to 40%.
There is no state “program” for participation in the Act. People do not “make application” to the State of Oregon or the Oregon Health Authority. It is up to qualified patients and licensed physicians to implement the Act on an individual basis. The Act requires the Oregon Health Authority to collect information about patients who participate each year and to issue an annual report.

Q: Are there any other states that have similar legislation?

A: Yes. On November 4, 2008, the State of Washington passed Initiative 1000, the state’s Death with Dignity Act, which became law on March 5, 2009. Information about the Washington Death with Dignity Act can be found at http://www.doh.wa.gov/dwda.
In 2009, the Montana Supreme Court ruled that physicians may assist patients in ending their lives by prescribing lethal medications (to be self-administered by the patient), citing the state’s Rights of the Terminally Ill Act. Information on the Montana Supreme Court decision can be found at http://searchcourts.mt.gov/getDocument?vid={88A87FE0-2501-438A-AC31-CCE62D37C894}.
In 2013, the Vermont General Assembly passed Act 39, the state’s Patient Choice and Control at End of Life Act, which was signed into law on May 20, 2013. Information about the Vermont Patient Choice and Control at End of Life Act can be found at http://healthvermont.gov/family/end_of_life_care/patient_choice.aspx.

Q: Who can participate in the Act?

A: The law states that, in order to participate, a patient must be: 1) 18 years of age or older, 2) a resident of Oregon, 3) capable of making and communicating health care decisions for him/herself, and 4) diagnosed with a terminal illness that will lead to death within six (6) months. It is up to the attending physician to determine whether these criteria have been met.

Q: Can someone who doesn’t live in Oregon participate in the Act?
A: No. Only patients who establish that they are residents of Oregon can participate if they meet certain criteria.

Q: How does a patient demonstrate residency?
A: A patient must provide adequate documentation to the attending physician to verify that s/he is a current resident of Oregon. Factors demonstrating residency include, but are not limited to: an Oregon Driver License, a lease agreement or property ownership document showing that the patient rents or owns property in Oregon, an Oregon voter registration, a recent Oregon tax return, etc. It is up to the attending physician to determine whether or not the patient has adequately established residency.

Q: How long does someone have to be a resident of Oregon to participate in the Act?
A: There is no minimum residency requirement. A patient must be able to establish that s/he is currently a resident of Oregon.

Q: Can a non-resident move to Oregon in order to participate in the Act?
A: There is nothing in the law that prevents someone from doing this. However, the patient must be able to prove to the attending doctor that s/he is currently a resident of Oregon.

Q: Are participating patients reported to the State of Oregon by name?
A: The State does collect the names of patients in order to cross-check death certificates. However, the law guarantees the confidentiality of all participating patients (as well as physicians) and the Oregon Health Authority does not release this information to the public or media. The identity of participating physicians is coded, but the identity of individual patients is not recorded in any manner. Approximately one year from the publication of the Annual Report, all source documentation is destroyed.

Q: Who can give a patient a prescription under the Act?

A: Patients who meet certain criteria can request a prescription for lethal medication from a licensed Oregon physician. The physician must be a Doctor of Medicine (M.D.) or Doctor of Osteopathic Medicine (D.O.) licensed to practice medicine by the Board of Medical Examiners for the State of Oregon. The physician must also be willing to participate in the Act. Physicians are not required to provide prescriptions to patients and participation is voluntary. Additionally, some health care systems (for example, a Catholic hospital or the Veterans Administration) have prohibitions against practicing the Act that physicians must abide by as terms of their employment.

Q: If a patient’s doctor does not participate in the Act, how can s/he get a prescription?

A: The patient must find another M.D. or D.O. licensed to practice medicine in Oregon who is willing to participate. The Oregon Health Authority does not recommend doctors, nor can we provide the names of participating physicians or patients due to the need to protect confidentiality.

Q: If a patient’s primary care doctor is located in another state, can that doctor write a prescription for the patient?
A: No. Only M.D.s or D.O.s licensed to practice medicine by the Board of Medical Examiners for the State of Oregon can write a valid prescription for lethal medication under the Act.

Q: How does a patient get a prescription from a participating physician?
A: The patient must meet certain criteria to be able to request to participate in the Act. Then, the following steps must be fulfilled:

  1. The patient must make two oral requests to the attending physician, separated by at least 15 days;
  2. The patient must provide a written request to the attending physician, signed in the presence of two witnesses, at least one of whom is not related to the patient;
  3. The attending physician and a consulting physician must confirm the patient’s diagnosis and prognosis;
  4. The attending physician and a consulting physician must determine whether the patient is capable of making and communicating health care decisions for him/herself;
  5. If either physician believes the patient’s judgment is impaired by a psychiatric or psychological disorder (such as depression), the patient must be referred for a psychological examination;
  6. The attending physician must inform the patient of feasible alternatives to the Act including comfort care, hospice care, and pain control;
  7. The attending physician must request, but may not require, the patient to notify their next-of-kin of the prescription request. A patient can rescind a request at any time and in any manner. The attending physician will also offer the patient an opportunity to rescind his/her request at the end of the 15-day waiting period following the initial request to participate.

Physicians must report all prescriptions for lethal medications to the Oregon Health Authority, Vital Records. As of 1999, pharmacists must be informed of the prescribed medication’s ultimate use.

Q: What kind of prescription will a patient receive?
A: It is up to the physician to determine the prescription. To date, most patients have received a prescription for an oral dosage of a barbiturate.

Q: What will happen if a physician doesn’t follow the prescribing or reporting requirements of the Act?
A: The Oregon Health Authority will notify the Board of Medical Examiners of any deviations. If a formal investigation is warranted by the Board of Medical Examiners, physicians might be subject to disciplinary action.

Q: Must a physician be present at the time the medications are taken?
A: The law does not require the presence of a physician when a patient takes lethal medication. A physician may be present if a patient wishes it, as long as the physician does not administer the medication him/herself.

Q: Can a patient rescind a request to participate in the Act?
A: Yes, a patient can rescind a request at any time and in any manner. The attending physician will also offer the patient an opportunity to rescind his/her request at the end of the 15-day waiting period following the initial request to participate.

Q: How much does participation cost?
A: We do not collect cost data. However, direct costs for participation in the Act might include office calls relating to the request, a psychological consult (if required), and the cost of the prescription.

Q: Will insurance cover the cost of participation in the Act?
A: The Act does not specify who must pay for the services. Individual insurers determine whether the procedure is covered under their policies (just as they do with any other medical procedure). Oregon statute specifies that participation under the Act is not suicide, so should not affect insurance benefits by that definition. However, federal funding cannot be used for services rendered under the Act. For instance, the Oregon Medicaid program, which is paid for by federal funding, ensures that charges for services related to the Act are paid only with state funds.

Q: Can a patient’s family members request participation in the Act on behalf of the patient (for example, in cases where the patient is comatose)?
A: No. The law requires that the patient ask to participate voluntarily on his or her own behalf.

Q: Does the Act allow euthanasia?
A: No. Euthanasia is a different procedure for hastening death. In euthanasia, a doctor injects a patient with a lethal dosage of medication. In the Act, a physician prescribes a lethal dose of medication to a patient, but the patient – not the doctor – administers the medication. Euthanasia is illegal in every state in the U.S., including Oregon. The Act has been legal in Oregon since November 1997.

Q: What are some terms used to describe other options in end-of-life medical care? Are these are reportable to the Oregon Public Health Division under the Death with Dignity Act?
A: The “double effect” is when medications (such as narcotics) which are prescribed by physicians with the intent to alleviate pain have the unintended secondary effect of suppressing respiration (termed “the double effect”), which may result in death. These are not reportable under the Death with Dignity Act. “Terminal sedation” is when medications (such as barbiturates) are prescribed by physicians to induce a coma with the intent of alleviating pain. These patients are likewise not reportable under the Death with Dignity Act.

Q: What information is available on Oregon’s Death with Dignity Act website?
A: You can find links to all our annual reports, forms, legislation, rules, press releases and other articles. The annual reports themselves contain an historical background of the Act, a description of the laws pertaining to the Act, how data is reported, collected and analyzed, a summary of the year’s results, and tables that outline the participant demographics and disease characteristics. The Oregon Health Authority does not collect some information (such as religious affiliation of participants or cost of the procedure); other information is strictly confidential (such as names of participating patients and physicians).

Q: What is the Oregon Health Authority’s opinion of the Act?
A: The Act was a citizen’s initiative, enacted because a majority of voting Oregonians believed that persons afflicted with certain terminal illnesses should have the legal right to hasten their deaths. The role of the Oregon Health Authority is to collect data on participation in the Act and issue an annual report. These data are important to parties on both sides of the issue. Our position is a neutral one, and we offer no opinions about the law.

Q: What is the status of the federal lawsuit against Oregon’s Death with Dignity law?
A: November 6, 2001: U.S. Attorney General John Ashcroft issues a directive which states, in part, that prescribing, dispensing or administering federally controlled substances to assist suicide violates the Controlled Substances Act (CSA). This new interpretation of the CSA allows the federal Drug Enforcement Agency (DEA) to pursue action to revoke prescription-writing privileges and to pursue federal criminal prosecution of participating Oregon physicians.

November 7, 2001: Oregon Attorney General Hardy Myers files suit in U.S. District Court for a temporary restraining order and preliminary injunction.
November 8, 2001: U.S. District Court Judge Robert Jones issues 10-day stay barring implementation of Ashcroft’s order.
November 20, 2001: Judge Jones issues a temporary restraining order against Ashcroft’s ruling pending a new hearing.
January 22, 2002: Oregon Attorney General Hardy Myers files a motion for summary judgment.
April 17, 2002: U.S. District Court Judge Robert Jones upholds the Death with Dignity Act. Permanent injunction is filed.
September 23, 2002: Attorney General Ashcroft files an appeal, asking the 9th U.S. Circuit Court of Appeals to overturn the District Court’s ruling.
May 26, 2004: A three-judge panel upholds Judge Jones’ ruling.
July 13, 2004: Ashcroft files an appeal requesting that the 9th U.S. Circuit Court of Appeals rehear his previous motion with an 11-judge panel.
August 13, 2004: 9th U.S. District Court of Appeals denies Ashcroft’s request.
November 9, 2004: Ashcroft appeals the case to the U.S. Supreme Court.
February 22, 2005: U.S. Supreme Court agrees to hear the appeal.
October 5, 2005: U.S. Supreme Court hears oral arguments in the case of Gonzales v. State of Oregon.
January 17, 2006: The U.S. Supreme Court files its opinion and upholds the 9th U.S. District Court of Appeals’ decision. Oregon’s law remains in effect.
Further information on Gonzales v. State of Oregon can be found at the Department of Justice’s Physician-Assisted Dying website http://www.doj.state.or.us/hot_topics/11072001.shtml

Q: Where can I find a copy of the statutes and administrative rules governing the Death with Dignity Act?
A: On the statute page and on the administrative rule page.

Q: Where can I find the forms used for the Act?
A: On our forms page.


Q: What were the initial costs for setting up the Death with Dignity system in Oregon?

A: Oregon’s Death with Dignity systems was set up in 1997 and we were the first state to do so. Implementing the system involved the following tasks:

  • Establishing administrative rules and policies
  • Setting up the reporting and data system
  • Preparing forms and instructions
  • Establishing and convening advisory committees
  • Conducting data analysis
  • Preparing reports
  • Answering media questions
  • Setting up and posting documents on the web
  • Consulting with the Department of Justice (additional cost)

A Senior Epidemiologist who is an MD was dedicated to the project half time for 2 months. A Senior Research Analyst was dedicated full time for two months during initiation of the project.

Q: How much does it cost to maintain the Death with Dignity system now?
A: Tracking records, setting up and analyzing the data, and preparing the report has been streamlined. The Research Analyst dedicates about 4 hours per week throughout the year and up to 8 hours per week for two months when the report is being prepared. We continue to receive press calls and other questions that are handled by the State Epidemiologist for an estimate of 4 hour per month.