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Governance
It was a very challenging legislative session for the AOC Governance Steering Committee, largely due to the enormous volume of legislation in that Committee’s portfolio, as well as zombie bills that kept resurfacing. However, in the end, most of the legislation that was supported by the Committee was enacted, and nearly all of the bills that the Committee opposed did not pass.
A full list of bills tracked for the Committee, including AOC positions and status upon adjournment, can be found on the Governance Committee web page (first document listed under “Resources”).
The following are summaries, based on the categories of bills tracked, listed alphabetically:
1. Cannabis
AOC was again heavily involved in a third round of rewriting and improving Oregon’s marijuana laws in the aftermath of the passage of Ballot Measure 91 in November of 2014, which legalized, taxed, and regulated recreational marijuana under Oregon law. A full list of the key cannabis bills passed in 2017 can be found on AOC’s marijuana web page. AOC Legal Counsel continues to be directly involved in the development of marijuana law and policy, in the legislature, with the federal government, and elsewhere. Although full integration of the medical and recreational systems has not yet occurred, here are the primary cannabis bills enacted by the 2017 legislature:
SB 1057 (The Omnibus Bill) Chapter 183 - effective 5/30/17
A significant policy bill that was a major focus of the Joint Marijuana Committee early in the session, SB 10578 was designed, in part, to address Oregon’s leaking medical marijuana production system. Among many other things, the bill:
• Reduces maximum plant count limits for designated medical growers.
• Requires designated medical growers with more than 12 mature plants to be in the OLCC seed-to-sale tracking system known as METRC, and allows OLCC to inspect those grows.
• Directs OHA to create database for sharing information with OLCC.
• Allows an OLCC licensee to convert their license to “medical only.”
• Allows OLCC licensee, under certain conditions, to exhibit marijuana items at trade show, State Fair, or similar event.
Action Alert: If your county has opted out of medical marijuana businesses, you should amend your opt out ordinance to add the new categories of OLCC “medical only” licensees created by SB 1057. See also SB 56 and HB 2198 below.
SB 56 (The Miscellaneous Bill) Chapter 476 - effective 6/23/17
SB 56 was designed to be a cleanup bill with a wide array of non-controversial items that were unopposed by any significant stakeholder. Among many other things, the bill:
• Permits OLCC to immediately suspend a license if there is probable cause to believe the licensee has sold marijuana into the black market.
• Requires OLCC and OHA to maintain telephone hotlines for cities and counties to inquire about the status of a marijuana business.
• Allows certain small OLCC licensed producers to engage in some limited primary processing.
• Allows city or county to amend its opt out ordinance, without an election, to add the new categories of OLCC “medical only” businesses created by SB 1057.
Action Alert: See action alert for SB 1057 above.
HB 2198 (The Medical Bill) Chapter ??? - effective on passage
HB 2198 was designed to address ongoing issues with the functionality of the Oregon Medical Marijuana Program (OMMP). Among other things, the bill:
• Crawls back some of the provisions in SB 1057 relating to maximum plant counts for designated medical growers.
• Allows designated medical growers with more than 12 plants to sell up to 20 pounds of excess marijuana per year to an OLCC licensed processor or wholesaler, thus reinstating a path for the sale of excess medical marijuana that largely disappeared when most medical dispensaries converted to OLCC licensed retailers.
• Establishes the Oregon Cannabis Commission to study the OMMP and make recommendations to the legislature about possible restructuring of the OMMP.
• Allows marijuana retailers and dispensaries to be located within 1,000 feet of school only if OLCC determines that there is physical or geographic barrier in between, such as a river or a freeway.
• Allows city or county to amend its opt out ordinance, without an election, to add the new categories of OLCC “medical only” businesses created by SB 1057.
Action Alert: See action alert for SB 1057 above.
SB 1015 (The Hemp Transfer Bill) Chapter 531 - effective 10/5/17
SB 1015 allows an ODA licensed industrial hemp grower to sell certain and hemp products to an OLCC licensed marijuana processor or wholesaler.
HB 2197 (The State-Tribal Tax Bill) Chapter 495 - effective 10/5/17
Allows DOR to enter into an agreement with a federally recognized Indian tribe for purpose of making rebate payments for estimate of tax on marijuana items.
HB 3470 §§ 30-37 (The Tax Distribution Bill) Chapter ??? - effective on passage
Rewriting the state marijuana tax distribution formula from Measure 91 became a necessity for the State, as well as counties and cities. The formula, as written in Measure 91, had erroneous references, as well as limitations that could not be carried out as a practical matter. The rewrite eventually took the form of SB 845. However, the contents of that bill, after some minor modifications that only affected the State, were stuffed into the “Program Change” bill, HB 3470, at the end of the session. Among other things, the bill:
• Retains the original intent of Measure 91 by providing that the 10 percent distribution to counties for taxes collected prior to July 1, 2017, will flow to all counties based on population.
• The 10 percent distribution of taxes collected after July 1, 2017, will be disbursed only to counties that have not opted out, with:
o Half based on total OLCC producer canopy size in each county as compared to the whole state.
o Half based on the number of OLCC licensed processors, wholesalers, and retailers located within each county as compared to the whole state.
• Eliminates any restriction on county use of distributed funds.
SB 302 (The Marijuana Offense Bill) Chapter 21 - effective 4/21/17
Largely crafted by AOC Legal Counsel, SB 302 removes marijuana from the state Controlled Substnaces Act and rewrites nearly all marijuana offenses, as well as creating some new and revised offenses to deal with arson incident to manufacture, as well as unlawful exportation. The new offenses went into effect on April 21, 2017, so AOC Legal Counsel provided Oregon law enforcement with a training video as well as materials posted on AOC’s marijuana web page.
SB 303 (The Minor in Possession Bill) Chapter 20 - effective 4/21/17
SB 303 is the companion to SB 302, and clarifies and creates consistency in prohibitions and procedures related to minors possessing, purchasing, attempting to purchase or acquiring alcoholic beverages or marijuana items. The bill was crafted by AOC Legal Counsel at the request of the Juvenile Directors and the Municipal and Justice Court Judges.
Bills that didn’t pass: There were a slew of cannabis bills that didn’t pass. They are each referenced in the tracking list found on the Governance Committee web page. Of particular note, the legislature did not authorize the licensing of venues for social consumption, or rewrite the industrial hemp laws. Those bills will likely return in the 2018 legislative session.
2. Drugs (other than cannabis)
With opiate and methamphetamine addiction still plaguing Oregon, there were many bills introduced to address those issues in a variety of ways, most of which did not pass. Below are some of the key drug policy bills that did make it through the session.
Two bills formed the core of the 2017 legislative response to the opiate epidemic:
HB 3440 Chapter ??? - effective 10/5/17
HB 3440 is an omnibus bill introduced near the end of the session, and includes a variety of policy choices that had been discussed among legislators and stakeholders for quite some time. Among many other things, the bill:
• Removes the special training requirement governing the prescribing, dispensing and distributing of naloxone, a drug that can often save someone overdosing on opiates from death.
• Provides that reimbursing the cost of medication prescribed for purpose of treating opioid or opiate withdrawal does not require prior authorization during first 30 days of treatment.
• Provides that a person may not be denied entry into a specialty court program solely because the person taking, or intends to take, medication prescribed for treatment of drug abuse or dependency.
• Provides for the Prescription Drug Monitoring Program (PDMP) to send an automated notifice to a prescriber, medical director, or pharmacy director under certain circumstances.
HB 2114 Chapter 146 - effective 10/5/17
HB 2114 directs the medical licensing boards to provide licensees with opioid and opiate prescribing guidelines and recommendations.
Two bills made significant changes to criminal laws relating to controlled substances other than marijuana:
HB 2355 (The Racial Profiling Bill) Chapter ??? - effective on passage
Buried in the middle of the racial profiling bill introduced by the Attorney General to, among other things, track traffic and pedestrian stops initiated by law enforcement, were sections that reduced, from felonies to misdemeanors, most cases of unlawful possession of a controlled substance. Although AOC did not take part in that policy decision, AOC Legal Counsel was permitted to craft those section, primarily to ensure that those reduced crimes were not also removed from the 1995 SB 1145 community corrections baseline funding, which represented a potential loss of approximately ten million dollars. To make that happen, the newly reduced misdemeanors are now included within that baseline funding.
SB 323 Chapter 248 - effective 1/1/18
SB 323 relates to fries and explosions caused by clandestine drug labs - other than meth labs, which were addressed in 2005 HB 2485, and marijuana extract labs, which were addressed in 2017 SB 302 (see above). This leaves only the more exotic clandestine drug labs. Crafted by AOC Legal Counsel at the request of Senator Olsen, SB 323 fills that gap by creating the crimes of arson incident to the manufacture of a controlled substance in the first and second degrees, to mirror arson in the first and second degrees.
A few other important drug policy bills also made it through the session:
HB 2397 (The Formulary Bill) Chapter 106 - effective 5/18/17
HB 2397 authorizes an Advisory Committee to recommend to the Board of Pharmacy that rules be adopted to allow certain drugs to be included in a formulary of drugs and devices that pharmacists may prescribe and dispense to patients under specified conditions. AOC Legal Counsel committed to working with the Advisory Committee and the Board of Pharmacy on expanding consumer access by way of the formulary, to pseudoephedrine, a decongestant and key precursor in the clandestine manufacture of methamphetamine.
SB 743 Chapter 345 - effective 1/1/18
SB 743 prohibits sale of the over-the-counter cold medicine dextromethorphan to a person under 18 without a prescription.
Bills that didn’t pass: There were quite a number of drug policy bills that didn’t pass. They are each referenced in the tracking list found on the Governance Committee web page. Two are of particular note:
• HB 2386 would have implemented a statewide drug take-back program modelled on successful county ordinances in California and Washington that provide secure take-back boxes at pharmacies, paid for by the pharmaceutical industry. The bill was supported by a broad coalition of partners, including AOC. However, some members of the pharmaceutical industry worked hard to kill the bill.
• In 2006, as the result of 2005 HB 2485, Oregon returned pseudoephedrine, a decongestant and key precursor in the clandestine manufacture of methamphetamine, to a prescription drug, in order to further reduce the incidence of local toxic meth labs, and immunize Oregon from a resurgence of local toxic meth labs. HB 2128 would have undone that 2005 legislation. AOC Legal Counsel was the primary spokesperson for a broad coalition that opposed the bill, which did not move forward. But see also HB 2397 above.
3. Elections
The Oregon Association of County Clerks (OACC), which contracts with AOC for policy support services in the Capitol, is heavily involved in election legislation. Although the Oregon Secretary of State (SOS) in in charge of elections in Oregon, it is county clerks and election officials that actually conduct elections, so election legislation is of key interest.
SB 229 Chapter ??? - effective on passage
SB 229 is the technical corrections and improvements bill from the SOS and OACC. It includes a litany of fixes, improvements, and modernization of many election statutes. In recent past legislative sessions, the SOS/OACC technical corrections bills became politicized, and thus did not pass, leaving a growing laundry list of things in Oregon election law that needed to be fixed. SB 229 was likewise placed in some peril when it was amended at the very end of the 2017 session to provide for a possible January 2018 special election if the hospital provider tax (HB 2391) gets referred to voters by referendum petition, and a possible May 2018 special election if the transportation package (HB 2017) gets referred to voters by referendum petition. However, the bill made it through the process. The Legislative Fiscal Office has committed to reimbursing counties for the expenses associated with any special election called under the bill, to be taken from the $50 million provided by the legislature to the Emergency Board.
A couple other elections bills worth mentioning briefly:
SB 802 Chapter 468 - effective 1/1/18
SB 802 is one of the few substantive election policy bills to pass in 2017. It allows person who is at least 16 years of age to pre-register to vote. Prior to SB 802, a person has to wait until they were 17 to pre-register.
HB 2873 Chapter ??? - effective 1/1/18
HB 2873 requires the governing body of municipal corporation to publish notice of an election involving a local option tax measure or general obligation bond measure by filing the measure with the Secretary of State for publication in ORESTAR.
Bills that didn’t pass: There were a large volume of elections bills that didn’t pass. They are each referenced in the tracking list found on the Governance Committee web page. Of particular note, the legislature again rejected OACC efforts to reform or repeal the Precinct Committee Person (PCP) election system. PCPs are not public offices, but instead part of political parties. Yet, those elections are taxpayer funded. The two largest political parties in Oregon again quashed the OACC efforts, which took the form of SB 211 (reform) and HB 2571 (repeal), the latter of which was introduced by bipartisan and bicameral chief sponsors, and received a hearing before the House Rules Committee.
4. Fees
HB 2618 Chapter 390 - effective 1/1/18
In HB 2618, the Sheriffs were successful in getting many of their statutory civil fees increased, and indexed for inflation.
Bills that didn’t pass: A big battle brewed behind the scenes with regard to HB 3357 which would have doubled, from $20 to $40, the real property document recording fee surcharge that supports certain affordable housing programs and efforts in Oregon. AOC and OACC supported the bill, but only if amended to remove the unfunded mandate on counties to collect and disburse the fee. AOC and OACC insisted that the bill be amended to repeal ORS 205.320(2)(e), which exempts the fee from the usual 5% administrative fee retained by the County Clerk, and threatened litigation if that unfunded mandate was not lifted. The Oregon Association of Realtors (OAR) opposed the bill, and threatened litigation if the bill were to be amended in the way sought by AOC and OACC. Competing constitutional provisions were involved. However, the bill failed to reach enough policy support among legislators, and died as a result. Thus, the potential legal battle between AOC/OACC and OAR became moot.
5. Finance and Investment
A couple bills that passed are worth noting:
HB 2278 Chapter 26 - effective 10/5/17
HB 2278 authorizes municipal corporation to budget for estimated debt service payments when general obligation bonds are approved by voters at a May election. The bill also authorizes a municipal corporation to make a supplemental budget if its original budget did not include estimated requirements to pay debt service for general obligation bonds. The bill also provides that historic ghost towns do not have to comply with the Local Budget Law. The bill also made a number of housekeeping changes to Local Budget Law statutes.
HB 3435 Chapter ??? - effective 10/5/17
HB 3435 authorizes Curry, Klamath, and Yamhill counties to loan moneys from federal sources in their road funds to other local governmental entities, and establishes sideboards and limitations on such loans. The purpose of the bill was to: (1) Allow those three counties, each of which has substantial road fund reserves, to invest their road funds in a manner that earns more interest than the local government investment pool managed by the State Treasurer; and (2) allow the borrowing local governments access to financing at a rate lower than the typical commercial rate.
6. Fiscal Distress
HB 3434 Chapter ??? - effective 10/5/17
In 2013, the legislature passed 2013 HB 3453, which provided a legal methodology by which the Governor could proclaim public safety fiscal emergency in a county where fiscal conditions compromise the county’s ability to provide minimally adequate level of public safety services. The bill provided various methods to finance minimally adequate public safety services in such an event. However, although never used, the bill was set to expire at the end of 2017. HB 3434 extends that sunset date to 2024.
Bills that did not pass: Of particular note was HB 2086, AOC’s second legislative attempt to have Oregon join the majority of states that authorize units of local government to declare a state of fiscal emergency under certain circumstances, triggering the establishment of an emergency oversight board and possible relief available to a municipality under federal bankruptcy law. However, in a rather surprising move, the League of Oregon Cities (LOC) opposed the bill, even after AOC offered to remove cities from the scope of the bill. As a result, the bill died in Committee after a hearing was held, and a subsequent work group meeting was cancelled. AOC hopes to work with LOC, the State Treasurer, and other stakeholders in the interim. Hopefully, the third time will be the charm.
7. GIS
HB 2906 Chapter 166 - operative 1/1/18
HB 2906 establishes the Oregon Geographic Information Council, and requires public bodies, beginning in 2020, to share certain geospatial framework data under specified conditions and with specific limitations.
8. Labor and Employment
HB 2005 (The Pay Equity Bill) Chapter 197 - effective 10/5/17
HB 2005 was the big labor policy bill of the 2017 legislative session. It requires gender pay equity for comparable work, and sets forth the parameters of that requirement, as well as establishing a cause of action for violating that requirement.
HB 2611 Chapter 29 - effective 1/1/18
HB 2611 cleans up and clarifies Oregon law that, subject to a collective bargaining agreement or employment agreement, requires a law enforcement unit that hires a police or corrections officer originally hired by another law enforcement unit, upon written request of the original employing law enforcement unit, to reimburse the original employing law enforcement unit for certain expenses incurred.
Bills that didn’t pass: As is typical, there were a slew of labor and employment bills that didn’t pass. They are each referenced in the tracking list found on the Governance Committee web page. Two are of particular note:
• HB 3087 would have created a mandatory paid family and medical leave insurance program, and required employer and employee contributions to fund the program. The devil was in the details on this bill, and it did not garner sufficient support to pass. But it will likely return in future sessions in a different form.
• SB 301 would have prohibited employers from having policies that require employees to not use marijuana. A broad coalition of employers, both public and private, opposed the bill. AOC Legal Counsel was asked to testify against the bill on behalf of public employers, pointing out to the Senate Judiciary Committee that, if enacted, the legislation would likely be unenforceable as preempted by federal law, per the Oregon Supreme Court decision in Emerald Steel v BOLI, 348 Or 159 (2010). The bill, in a narrower version, is likely to return in future sessions.
9. Ocean and Coastal Policy
The 2017 Oregon legislative session was generally good for ocean and coastal issues, especially in light of the state budget crunch. For the first time in its history, the Oregon Coastal Zone Management Association (OCZMA) became actively involved in crafting and promoting state legislation. OCZMA membership consists of coastal counties, cities, ports, and soil and water conservation districts, and contracts with AOC to provide support and policy services. In addition, the legislative Coastal Caucus continues to provide unified bicameral and bipartisan leadership on coastal issues.
SB 867 (Maritime Workforce Development) Chapter ??? - effective 10/5/17
SB 867 was the flagship bill introduced by the legislative Coastal Caucus at the request of OCZMA. It creates a Task Force on Maritime Sector Workforce Development to begin the process of identifying and defining the scope and extent of the maritime sector as an economic driver in Oregon, and extensive provider of family wage jobs. The task force will be staffed by AOC and will develop recommendations for the State Workforce Investment Board to incorporate consideration of the maritime sector into Oregon’s statewide workforce investment system plan. The bill also declares a state policy to promote coordinated provision of education, employment, economic development and job training to support maritime sector in Oregon.
SB 1039 (Ocean Acidification and Hypoxia) Chapter ??? - effective 1/1/17
SB 1039 declares state policy on ocean acidification and hypoxia. Establishes Oregon Coordinating Council on Ocean Acidification and Hypoxia. Establishes duties of coordinating council. Requires coordinating council to submit biennial report to Legislative Assembly and Ocean Policy Advisory Council by September 15 of each even-numbered year on coordinating council's activities and recommendations.
HB 2784 (Shellfish) Chapter ??? - effective 7/1/17
Designates State Department of Agriculture as lead agency responsible for state administration of programs and policies relating to commercial cultivation of oysters, clams and mussels. Establishes pilot project for increasing frequency of water quality monitoring and analysis related to closure and opening of shellfish harvesting.
A series of four bills relating to ports also passed and have been signed by the Governor (each of which was supported by OCZMA):
HB 2899 (Ports - Intergovernmental Agreements) Chapter 84 - effective 1/1/18
Allows a port to enter into an intergovernmental agreement for any purpose permitted under ORS chapter 190.
HB 2900 (Ports - Advertising) Chapter 85 - effective 1/1/18
Allows a port to advertise activities of the port, and activities of others using port facilities.
HB 2901 (Ports - Real Property Purchase Appraisal) Chapter 86 - effective 1/1/18
Increases the threshold, from $500,000 to $2 million, of real property value that requires a port to obtain an additional appraisal before purchase.
HB 2902 (Ports - Shipyards) Chapter 165 - effective 1/1/18
Clarifies port authorization to acquire, construct, maintain and operate shipyards.
A few more bills that passed are worth mentioning (each of which was supported by OCZMA):
HB 3149 Chapter ??? - effective 10/5/17
Requires development of plan for Oregon Coast Trail.
SJM 7
Requests that Congress authorize and appropriate funding for United States Coast Guard's air facility in Newport in perpetuity.
HCR 8
Celebrates 50th anniversary of Oregon's Beach Bill.
In addition, many important projects in coastal communities were funded by HB 2017 (the “Transportation Package”) and SB 5529 (the “Christmas Tree Bill”).
Bills that didn’t pass: Some of bills that OCZMA supported did not pass, primarily due to the state budget crunch, such as:
• SB 745 establishing the Ocean Beach Fund, directing transient lodging tax revenues from state recreation area lodgings along ocean shore to the fund, and directing that moneys from fund be spent for managing state recreation areas along ocean shore.
• SB 281 appropriating moneys from the state General Fund to the Oregon Ocean Science Trust for deposit in Oregon Ocean Science Fund.
• HB 2376 requiring the Governor to certify to United States Secretary of Commerce that any national marine sanctuary to be located within seaward boundary of Oregon are unacceptable unless the legislature confirms the designation.
10. PERS
Facing an unprecedented Unfunded Actuarial Liability (UAL) that is likely to drive significant increases in rates charged to public employers for the next three biennia, at least, the Senate Workforce Committee held a series of hearings on bills and proposals to undertake “PERS reform” that could survive judicial scrutiny under the standards set forth by the Oregon Supreme Court in its decision in Moro v State of Oregon, 357 Or 167 (2015). AOC deferred any action in support or opposition of any specific PERS bill unless and until it could be adequately and accurately evaluated in light of the key criteria outlined in the memorandum issued by the Chair and Vice-Chair of the Senate Workforce Committee. AOC also took a position in support of the general proposals made by the Oregon Business Council, at least in concept. Ultimately, no decisions were made in the Senate Workforce Committee, but two key bills, SB 559 and SB 560, and a slew of proposed amendments to those bills, were kept alive and forwarded by that Committee to the Joint Ways and Means Committee. For her part, the Governor appointed a task force to look at ways of paying down the UAL to the point where it doesn’t trigger the lifting of the collared rate cap on employer rate increases. However, the legislative session ended without any real PERS reform.
Two minor PERS bills, however, did pass:
SB 200 Chapter ??? - effective on passage
Allows PERS member to purchase retirement credit for periods of service in uniformed services.
SB 712 Chapter ??? - effective on passage
Provides hours of service credit for vesting purposes and retirement credit to member of OPSRP who receive workers' compensation disability payments and subsequently are reemployed by any participating public employer.
Also, as part of efforts to make PERS employer side accounts more usable by PERS employers, the PERS Employer Advisory Group (EAG) asked AOC Legal Counsel to craft legislation to fix the PERS side account statute, which was added to the “Cost Containment” bill:
SB 1067 § 10a Chapter ??? - effective on passage
Among many other things, SB 1067 allows the Public Employees Retirement Board to establish multiple side accounts for lump sum payments of employer contributions made by a participating public employer.
11. Public Contracting
A number of public contracting bills were passed by the 2017 Oregon legislature:
HB 3203 (In-House Work Cost Analysis) Chapter ??? - operative 1/1/18
HB 3203 was a heavily negotiated bill, involving AOC staff and many other stakeholders. The goal was to keep this policy bill out of the Transportation Package, yet reach consensus. Those goals were accomplished. HB 3203 requires a contracting agency to perform an analysis to determine whether constructing a public improvement with the contracting agency's own equipment and personnel will result in least cost to the contracting agency. The bill specifies elements of the cost analysis, and requires a contracting agency to file the analysis with the BOLI Commissioner. The bill specifies the threshold at which estimated costs of constructing a public improvement triggers the requirement to perform the analysis. The bill requires BOLI, every four years beginning in 2021, to review the methodology for calculating costs and threshold amount at which a contracting agency must prepare specifications and cost estimates for public improvement, and requires the BOLI Commissioner to investigate a contracting agency's alleged violation in response to a complaint from a construction contractor or trade association, or if BOLI discovers or has reason to believe that violation has occurred, unless BOLI reasonably concludes that the facts alleged do not constitute a violation, or that the complaint was frivolous or was filed to harass a contracting agency, or for purposes other than to enforce the requirements of law. The bill also permits the BOLI Commissioner to impose a civil penalty of not more than $5,000 on a local contracting agency that BOLI finds in violation of law or agreement with BOLI, or a civil penalty of $20,000 if BOLI finds that a violation was willful.
SB 87 (Large IT Contracts) Chapter 512 - effective 1/1/18
SB 87 permits the State Chief Information Officer to decide whether a state contracting agency or public corporation must obtain quality management services for information technology initiative in specific circumstances.
SB 416 (Prevailing Wage Rate) Chapter 334 - effective 6/14/17
SB 416 provides that the BOLI Commissioner may apply certain considerations to determine whether to divide public works project into separate contracts for purposes of prevailing wage rate laws. The bill also requires that all contracts for public works, and all subcontracts related to public works, specify that the contractor or subcontractor must have filed a public works bond with the Construction Contractors Board, unless the contractor or subcontractor is exempt from the requirement. The bill also specifies that a disadvantaged business enterprise, a minority-owned business, a woman-owned business, a business that a service-disabled veteran owns, or and emerging small business must file a public works bond if the Commissioner finds that the business has violated the prevailing wage rate law or rules.
A couple state agency contracting bills are also worth noting:
HB 2162 (Apprenticeship) Chapter 416 – operative 1/1/18
Requires state contracting agency that awards public improvement contract with contract price of more than $5 million to require contractor to employ apprentices to perform 10 percent of work hours on public improvement that workers in apprenticeable occupations perform. Requires in each subcontract for which contract price exceeds lesser of $1 million or 25 percent of price of contract that subcontractor employ apprentices to perform 10 percent of work hours that workers in apprenticeable occupations perform on subcontract. Increases in 2022 apprentice employment requirement to 12 percent on public improvement projects with contract price of more than $3 million and subcontracts for which contract price exceeds lesser of $1 million or 25 percent of price of contract. Exempts Department of Transportation from requirement. Specifies reporting requirements for contractor. Requires Bureau of Labor and Industries to establish and provide staffing for advisory committee that monitors implementation of and compliance with Act.
HB 3060 (Sexual Harassment) Chapter 212 - effective 10/5/17
Prohibits state contracting agency from entering into public contract with prospective contractor that has not certified that prospective contractor has policy and practice of preventing sexual harassment, sexual assault and discrimination against members of protected classes of workers. Specifies minimum elements that policy and practice must include, and method by which contractor may provide required notice. Requires public contract to require as material term that contractor have and maintain policy and practice to prevent sexual harassment, sexual assault and discrimination against members of protected classes.
Bills that didn’t pass: There were a large volume of public contracting bills that didn’t pass. They are each referenced in the tracking list found on the Governance Committee web page.
12. Public Records and Meetings
After decades of prior failed attempts, the 2017 Oregon Legislature was determined to modernize and reform Oregon’s public records law. Those efforts yielded a package of three key bills that were often referred to as a “three-legged stool.” They are SB 106, SB 481, and HB 2101.
AOC was heavily involved in that work, to ensure that the reform efforts were both meaningful and functional. The three bills are as follows, and constitute the first major reform of Oregon’s public records law since the 1970’s:
SB 106 (Advocate and Advisory Council) Chapter ??? - operative 1/1/18
SB 106 was introduced by the Governor. It creates a Public Records Advocate and a Public Records Advisory Council. The Public Records Advocate will provide facilitated dispute resolution services to help resolve disputes between requesters of public records and state agencies or cities concerning disclosure of public records. The Public Records Advocate will also provide training for state agencies and local government bodies on the disclosure requirements and best practices for processing and responding to requests to inspect public records. The Public Records Advocate, upon request, may also provide guidance and advice on public records processing and exemptions. The Public Records Advisory Council is directed study issues that arise under the public records law, and at least once each biennium to provide written recommendations to the Governor and the Legislative Assembly on the effectiveness and fairness of public records law and public bodies' implementation of public records law requirements.
SB 481 (Timelines for Responses, Etc) Chapter 456 - effective 1/1/18
SB 481 was introduced by the Attorney General, as the result of work by her Task Force. The bill establishes time frames for public body responses to public records requests. It also requires the Attorney General to maintain a catalog of public records law exemptions. Further, the bill provides protections against liability and privilege waivers resulting from public records disclosures, and clarifies the appeal procedures for reviews of public records requests.
Action Alert: Counties will want to review and update their policies and procedures related to the timing of responses to public records requests.
HB 2101 (Review of Exemptions) Chapter ??? - effective 10/5/17
HB 2101 was introduced by Representative John Huffman. It directs Legislative Counsel to prepare an open government impact statement for legislation that affects disclosure, or exemption from disclosure, of public records. The bill also establishes the Oregon Sunshine Committee to create a schedule of review for the over 550 existing exemptions from disclosure for public records, and directs the Sunshine Committee to report to the Legislative Counsel Committee, subcommittee on public records, and include in the report any recommended changes to public records process, as well as recommendations to amend or repeal exemptions from disclosure. The bill also directs Legislative Counsel Committee to establish the public records subcommittee to review the report from the Oregon Sunshine Committee, and submit a report to the Legislative Counsel Committee.
There were also a number of additional bills that passed and related to public records, or public meetings, and are worth mentioning:
SB 317 Chapter 482 - effective 1/1/18
Expands where state, county or city public bodies may hold public meetings to include locations within Indian country of a federally recognized Oregon Indian tribe that is within Oregon.
SB 508 Chapter 340 - effective 1/1/18
Provides that images of dead bodies that are part of a law enforcement agency investigation are exempt from disclosure as a public record, if disclosure would create an unreasonable invasion of privacy for the family of the deceased person. Creates an exception if the public interest requires disclosure in the particular instance.
SB 769 Chapter 254 - effective 1/1/18
Provides that a person may not dispose of, or transfer to another person for disposal, material or media that display a Social Security number, unless the person, before disposing of material or media, makes the Social Security number unreadable or unrecoverable, or ensures that the person that ultimately disposes of the media or material makes the Social Security number unreadable or unrecoverable.
Bills that didn’t pass: There were a number of public records and meetings bills that didn’t pass. They are each referenced in the tracking list found on the Governance Committee web page.
13. Recording
HB 3432 Chapter 178 - effective 1/1/18
The Oregon Association of County Engineers and Surveyors (OACES) has been frustrated by the hard deadline in statute for reporting a defective survey to the Oregon State Board of Examiners for Engineering and Land Surveying (OSBEELS), especially when a County Surveyor is still working with a surveyor to correct the deficiencies. So, on behalf of OACES, AOC had HB 3432 introduced, which changes one word in the statute (from “must” to “may”), thus making permissive, rather than mandatory, the provision that a noncompliant survey map that is not corrected by the surveyor and returned to the county surveyor within 30 days be forwarded by the county surveyor to OSBEELS. OACES was joined by the Professional Land Surveyors of Oregon (PLSO) in favor of the bill, which passed both chambers without opposition.
HB 2855 Chapter 164 - effective 1/1/18
HB 2855 creates a procedure for a purchaser of real property to enforce a contractual requirement for delivery of a deed of conveyance without having to file a lawsuit.
Two bills impacted marriage licenses:
SB 751 Chapter 466 - effective 1/1/18
SB 751 prohibits the state marriage license application, license or record from requiring the address for an entity authorized to solemnize a marriage.
HB 2113 Chapter 61 - effective 1/1/18
Adds secular organizations to the list of persons and entities authorized to solemnize marriages.
Bills that didn’t pass: There were a number of recording bills that didn’t pass. They are each referenced in the tracking list found on the Governance Committee web page. One of those bills, in particular, is worth noting: SB 968 (The MERS Bill). Among other duties, county clerks and recording officials have the legal responsibility to record, preserve, and maintain all records that are vital to the operation of the real property transaction system that Oregonians rely upon. Years ago, many large lenders decided to create their own system, and their own private company, to avoid having to pay recording fees and use the normal recording system for the assignment of lending instruments, such as mortgages and trust deeds. This system, known as the Mortgage Electronic Registration System (MERS), fails to comply with Oregon recording law, has obfuscated Oregon real property records, contributed to the confusion in the courts during the recent foreclosure crisis, denies counties of vital recording fees to help support the recording system, and poses serious risks if MERS were to ever go into bankruptcy. Senate Bill 968 would have effectively legalized MERS in Oregon, retroactively. SB 968 would have reward large lenders for the bad behavior just described above, at the expense of clarity in our vital real property recording system, and also ended a number of county lawsuits against MERS, which was the stated purpose of the proponents of that bill during a work group meeting at the Department of Justice soon after a hearing was held on the bill.
14. Torts
SB 327 (Restoring Recreational Immunity) Chapter 449 - effective 6/22/17
In 2016, the Oregon Supreme Court decided the case of Johnson v Gibson, 358 Or 624 (March 3, 2016), holding that agents and employees of landowners are not covered by the recreational immunity statute, thus virtually eviscerating that statute. This opened the potential for significant economic liability for both public and private landowners, which resulted in the closing or threatened closing of many recreational opportunities for Oregonians. Numerous bills were introduced to fix the hole in the statute. The Oregon Trial Lawyers Association (OTLA) opposed restoration of recreational immunity unless the legal standard was altered. A small work group was convened by the Chair of the Senate Judiciary Committee, and met on March 7, 2017. AOC Legal Counsel was a part of that work group, representing local governments. The result was the amendment and passage of SB 327, restoring recreational immunity by adding agents and employees to the statute.
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