Teacher’s Agency Violates Open Meetings Law – Was it to Disguise $91,000 Payout?

By Lisa Nuss, OregonPEN

The agency charged with licensing Oregon’s teachers has appeared to violate Oregon’s public meetings law by holding a private executive session without proper authority.  The Teacher Standards and Practices Commission (TSPC) is a 17-member body comprised of educators who are appointed by the Governor to oversee the licensing and discipline of Oregon’s more than 28,000 public teachers who teach in kindergartens through high schools (K-12).

At its June 2015 quarterly meeting, the TSPC Executive Director, Vickie Chamberlain, waited until the commission was in a non-public executive session to reveal a $91,000 settlement of a lawsuit by a former employee, Kathy Rogers, that named both the agency and Chamberlain herself as defendants. The lawsuit alleged that Chamberlain and her deputy, Keith Menk, violated several state employment laws by firing Rogers, a TSPC employee, while she was on an extended medical leave, which occurred after she helped unionize the TSPC staff. The Oregon Department of Justice (DOJ) attorney who defended the case, Marc Abrams, revealed to the commissioners that, before she was fired, Rogers’ competence was never in question.

Before filing her suit, Rogers first filed a claim with the Oregon Bureau of Labor & Industries (BOLI). BOLI investigated and determined that there was substantial evidence that Chamberlain and Menk violated several state employment laws in dealing with Rogers. In its June 2013 findings, BOLI concluded that Chamberlain and Menk made inexplicable demands on Rogers to substantiate her need for medical leave (among other findings). The two rejected a letter from Roger’s doctor that in which the physician found that Rogers needed a modified work schedule; Chamberlain and Menk insisted that Rogers obtain and submit letters from multiple additional doctors. BOLI concluded that Chamberlain and Menk “did not make clear at any point why [her] submitted documentation was insufficient.” BOLI went on to find substantial evidence that TSPC had failed to make required accommodations when it eventually fired Rogers. Rogers then filed a lawsuit (Kathy Rogers v. State of Oregon, TSPC, Vickie Chamberlain, and Keith Menk).

After more than a year of litigation and multiple failed attempts by DOJ to get the case dismissed, Rogers’s suit was proceeding through discovery when the two sides reached a settlement agreement in early June 2015.

Public Meetings Law Favors Transparency

Oregon’s public meetings law is intended to ensure, among other things, that the meetings of governing bodies, at which decisions about the public’s business are made or discussed, are open to the public. The Attorney General’s website states that, “Put simply, these laws establish a general expectation that Oregon’s government will be transparent to its people.”

The Public Meetings Law does let agencies meet privately in “executive sessions” when certain specific topics are to be discussed by the agency leadership. However, Oregon law is clear that these exceptions are to be construed narrowly and that doubtful cases are to be resolved in favor of transparency and public disclosure. The law allows executive sessions to include discussion of ongoing litigation – suits that have not been settled, so that the policy makers can have the privacy needed to discuss the agency’s legal strategy. But the law also states explicitly that the exception applies only to ongoing litigation: once there is a settlement and a lawsuit is concluded, the settlement is a matter of public record and discussion of the matter must be public as well.

The settlement of the Rogers case includes a cash payout by the State of Oregon of $91,000. Fifty-thousand will be paid by state self-insurance funds and the balance, over $40,000, equal to a year of back salary for the employee, will be paid from teacher’s licensing fees from the TSPC budget. During her tenure and up through her recent resignation, Chamberlain has often told legislators that the TSPC is underfunded. But because of the agency’s actions against Rogers, TSPC must now pay a year’s salary to an employee no longer working for TSPC.

Oregon’s Public Meetings Law requires that matters of public interest such as this be presented at agency public meetings so that stakeholders can hear the commission’s discussions and pose questions.

It appears that the agency leaders and legal staff were determined to prevent anyone outside the agency from even hearing about, much less understanding what transpired. Oregon’s open meetings laws forbid agencies from burying their misdeeds.

Neither Agency nor DOJ Offer Justification for Hiding the Disclosure from the Public

After OregonPEN made a public records request, TSPC turned over the audio from the June 2015 Executive Session. The audio reveals that once commission members were gathered in the executive session and the public excluded, Chamberlain introduced the topic of the settlement with Rogers. Chamberlain had arranged for the DOJ attorney, Abrams, to join the session via a conference call. He then explained the outcome to the commission. There is no mention of the Rogers settlement on the June TSPC agenda for the meeting, although the lawsuit had been settled a few weeks earlier, well before the commission agenda was posted.

OregonPEN brought the apparent Public Meetings Law violation to the attention of both the TSPC and the DOJ. No one connected with TSPC or the Office of the Attorney General has attempted to justify or excuse withholding the disclosure of the settlement from the public. (The Public Meetings Law allows media representatives to attend executive sessions, but there is no record that any media representatives were at this commission meeting, perhaps because the Rogers settlement did not appear on the agenda.)

OregonPEN emailed Chamberlain to ask

“Does TSPC assert it had any authority under Open Meetings law to hide the settlement discussion from the public who attended the meeting and discuss it only in a closed Executive Session?”

Ms. Chamberlain emailed this response to OregonPEN’s Lisa Nuss on 10/7:

Ms. Nuss: Comments about the legality of actions is the province of the Department of Justice and I will not comment further.
 Victoria (Vickie) Bianes Chamberlain, JD”

OregonPEN has since learned that the TSPC’s regular DOJ counsel, attorney Raul Ramirez, attended the executive session. OregonPEN asked DOJ Ramirez this question via email,

“Is it correct that you are the DOJ attorney advising TSPC at its commission meetings, and is it correct you attended the Executive Session meeting where Ms. Chamberlain asked Marc Abrams to call in to discuss the Rogers settlement?
Please let us know under what authority that discussion was taken into Executive Session and kept from the public record.”

DOJ Ramirez emailed this response to OregonPEN reporter Lisa Nuss on 10/9:

Re: TSPC violation of Open Meetings law
Ramirez Raul (raul.ramirez@doj.state.or.us)
10/09/15

Dear Ms. Nuss:
 
Thank you for your email of October 7, 2015. I am assigned counsel to the
Teacher Standards and Practices Commission (TSPC).  Your email asks us
to comment on the authority and legality of a TSPC meeting.  Please note
that the Office of the Attorney General is prohibited by statute from
providing legal advice or representation to any person other than the
State of Oregon, acting through its agencies, boards, commissions,
officials an the like.  Please refer to ORS Chapter 180.  Consequently,
we are unable to comment regarding your questions.
 
Sincerely,
Raul Ramirez
Assistant Attorney General | Business Activities Section | General Counsel Division
Oregon Department of Justice”

Several days before deadline, OregonPEN emailed a second request to Ramirez asking him to confirm or deny his presence at the June executive session where the apparent open meetings act violation occurred. . After four days, he has still not responded. Additionally, neither TSPC Commission Chair Heidi Sipe nor DOJ attorney Marc Abrams responded to our emails asking for justification for withholding the revealing of the settlement from public session.

Strong evidence points to deliberate violation

By moving a discussion about a matter of public interest to executive session where the public was excluded, the TSPC appears to have violated ORS 192.660 (Executive sessions permitted on certain matters). The Oregon Government Ethics Commission is charged with investigating violations of the Public Meetings Law, and civil penalties can be imposed.

While it is possible that the violation of the open meetings law was inadvertent, many facts point to orchestration here; when added up, mere oversight seems improbable.

First, the June TSPC Commission meeting was run according to the usual schedule for a quarterly commission meeting, with one day devoted to general business before the agency and licensing matters and the next day devoted to decisions on specific disciplinary actions against teachers. Most members of the public and educators who attend the meetings attend only on the day where general business and teacher licensing matters are discussed.

Judging by public interest, the Rogers settlement should have been announced on the first day of the June commission meeting, when general business is discussed and when the agency’s stakeholders were most likely to be present. Instead, TSPC Executive Director Chamberlain appears to have used her control of the agenda to move the discussion of the Rogers’ suit settlement to the day primarily devoted to disciplinary issues against specific teachers; typically only the teachers involved and their lawyers would be present instead of the public. Even still, the Rogers settlement discussion was only addressed in a closed-door meeting, despite the mandate of the Public Meetings Law.

Chamberlain arranged for the call from DOJ Marc Abrams, to brief the commission members on the settlement, ahead of time — as evidenced in the audio recording that OregonPEN obtained.

Second, OregonPEN has earlier reported that the DOJ initially withheld the fact that the agency paid out $91,000 to settle the Rogers suit when first contacted by OregonPEN. In that first contact, in response to the inquiry from OregonPEN asking about the outcome of the Rogers lawsuit, the Attorney General’s office emailed OregonPEN to say that the lawsuit was settled “amicably” and the TSPC would be providing a recommendation for the employee; that response left out any mention of the $91,000 payout by the State of Oregon, with a significant share coming from teacher licensing fees.

That omission, combined with the failure to comply with the Public Meetings Law when announcing the Rogers settlement in a non-public meeting, would likely have been sufficient to ensure that no ordinary Oregonian ever learned about the lawsuit. If OregonPEN hadn’t pursued the matter, issued a public records request for the settlement document and asked for the audio recording of the executive session, the public and Oregon taxpayers would be ignorant of the fact that over $90,000 in public funds are being paid out because of improper conduct by TSPC leadership. That figure does not include the litigation costs for DOJ to litigate the case for over a year.

Two DOJ attorneys were present (Ramirez in person and Abrams by phone) at the June executive session. The Attorney General’s manual on Oregon public meetings laws clarifies that public meetings law parallels public records law. Any exemption for private discussion an agency has with its attorneys only applies to ongoing litigation and not to litigation that has been concluded. The manual states that outside of confidential matters such as ongoing litigation or disciplinary actions against certain individuals, “other discussions with counsel generally must be held in open session.”

The DOJ attorneys do a dis-service to the agency they are bound to advise if they mislead the commissioners into thinking that this very public matter is private and if they mislead commissioners into thinking they are not to be discussing this important matter with any members of the public or even their own stakeholders from the education community.

Third, the audio of the discussion of the lawsuit settlement reveals that DOJ Abrams made several disparaging comments about Rogers, the employee who brought the lawsuit. OregonPEN contacted an experienced labor lawyer who suggested that technically such disparagement by the State of Oregon does not violate the lawsuit settlement agreement because that agreement did not contain a general non-disparagement clause. The settlement only states that the State of Oregon will pay the employee one year’s back salary and provide a letter of recommendation..

DOJ Abrams also assured the commission that “we at DOJ” and the state Department of Administrative Services all believe that TSPC Executive Director Chamberlain and Deputy Director Menk did nothing wrong. Abrams told the commissioners, “We do not believe there were any improprieties in this matter,” and later, “I do not believe there was wrongdoing.” Meanwhile, Abrams portrayed Rogers to the commission members as a plaintiff who was simply making unreasonable demands for outrageous sums of money. DOJ Abrams assured the commissioners that the State of Oregon settled only to avoid the costs of trial, and suggested to commissioners that TSPC should consider itself pleased with the outcome. These statements appear to lack foundation, especially given the BOLI findings substantiating many of the facts behind Rogers’ claims.

OregonPEN has talked to eight current and former TSPC employees. When asked about this lawsuit, each one of them said, “It’s the same way they treated …” and they listed four or five names of former TSPC staff who they believe were illegally fired by Chamberlain and Menck under nearly identical fact patterns as in the Rogers case  (the pattern being: No prior negative reviews, no prior discipline problems, sudden and unexplained reassignment of duties, and then sudden firing).

OregonPEN has spoken with two former TSPC employees that Chamberlain fired; both then fought to get unemployment benefits over Chamberlain’s objections. Both staff say Ms. Chamberlain manufactured a long list of alleged improprieties after she fired them in an attempt to deny them unemployment benefits, In both cases, the Oregon Employment Department ruled against TSPC and found no evidence the employees were fired for willful misconduct, as alleged by Ms. Chamberlain; after investigations and hearings, both former employees were found eligible for unemployment benefits. One woman, whom she and other staff members say was fired under a similar scenario as Rogers, gave OregonPEN a letter from the Oregon Employment Department about her appeal for benefits. The letter stated that TSPC failed to “provide any prior specific warning” about any problems to the employee prior to the firing nor did TSPC provide “recent evidence of wrongdoing” that substantiated the firing.

Seven of the current and former TSPC staff members that OregonPEN talked to explained this string of unsubstantiated firings in terms that were nearly identical. Although OregonPEN talked to the current and former employees at different times over a span of several months, each explained the unsubstantiated firings in a variation of this answer “When Vickie wants someone gone, they’re gone. Usually it’s because they stood up to her.”

In light of these facts, the personal assurance by a DOJ attorney made behind closed doors to TSPC Commissioners that neither the DOJ nor DAS believe the commissioners have any need to evaluate how the agency’s Executive Director or Deputy Director deal with employees appears quite calculated.