Panel questions Sauerwein’s hiring ‘behind closed doors’
SALEM — The state’s Ethics Commission is investigating Cottage Grove City Council for violating Public Meeting Law when hiring its new city manager in December 2023.
The complaints were lodged by Cottage Grove resident Johanna Zee, who alleges that the decision to hire the new city manager was made behind closed doors and without public input.
The complaints were filed to the Oregon Government Ethics Commission (OGEC) in January. OGEC is a citizen commission which enforces state laws – one area of expertise being Public Meeting Law.
On March 22, the Commission’s preliminary review findings were made public via a video posted on YouTube. The findings asserted that there appears to be a “substantial objective basis” of violations … “by discussing compensation in executive session and in fact making a final decision” in executive session, according to investigator Andrew McIntyre.
Most of the preliminary review materials for the Cottage Grove case were made accessible to The Chronicle through a public records request. Some materials are still confidential as the investigation is ongoing.
DECISION-MAKING BEHIND CLOSED DOORS
In the complaint, Zee alleged that the hiring of the new city manager, Michael Sauerwein, was conducted during an executive session on Dec. 15, 2023. Under Public Meeting Law, decision-making is prohibited behind closed doors, and executive sessions are not open to the public. And while executive sessions are recorded, those recordings are not accessible to the public.
Findings in the preliminary review support Zee’s claim:
* The City stated in a Dec. 22, 2023 news release that the council selected its finalist on Dec. 15 – the same day the executive session was held – and that a Letter of Intent had been signed.
* There was a closed meeting, followed by the announcement, with no public meeting in between.
* The next public meeting was held Jan. 8, when the council voted 5-2 to approve Sauerwein’s contract. Mayor Candace Solesbee and councilor Greg Ervin voted in opposition. The majority ruled.
But by then, the wheels were already set in motion.
The Letter of Intent, which was signed Dec. 20, 2023 by the mayor on behalf of the council, outlined the employment agreement, including salary, leave allotment, relocation allowance, insurance and benefits, among other standard employment contract terms, and it was signed by Sauerwein on Jan. 2.
Sauerwein declined comment to The Chronicle.
Zee alleged that the council treated that Jan. 8 meeting as “a formality to solidify (its) already-made decision.”
By law, council is required to deliberate and make a final decision at an open meeting. This process allows the public to be abreast of the results of the discussions made in closed meetings.
Upon review of the recording of the executive session in question, while no official vote took place, the council did reach a consensus on which candidate to begin negotiations with in that meeting, according to the preliminary review.
There is a fine but firm line between decision-making and council consensus. Reaching a consensus in a closed meeting is legal; council may leave the meeting feeling like they are all on the same page – sometimes confirmed by a head nod or eye contact – but the final votes must then be cast in a public meeting.
The Commission argues that the issue here is not that a consensus was made on who to hire in private, but rather that the private discussion did not come to a vote at a public meeting.
There’s also an issue with the council having discussed the candidate’s compensation behind closed doors, which is a separate violation of Public Meeting Law. Audio of the meeting obtained by the Commission confirmed that the council discussed paid leave, salary, and other benefits in executive session.
According to the preliminary review, “there is a substantial objective basis in this case to believe (the council) may have violated (Public Meeting Law) by discussing compensation and by making a final decision at the Dec. 15 executive session.”
LACK OF PUBLIC INPUT – DISMISSED
Zee also made allegations that the council did not have access to public comment prior to the decision; however, the Commission did not find evidence to support this claim.
The council was found to have received a synopsis of the community’s feedback from a Dec. 14, 2023 meet-and-greet, which included a summary of each of the final five candidates’ perceived strengths and weaknesses. Other instances of following procedure around public comment and awareness, such as multiple community forums dating back to September, were confirmed in the preliminary review.
Based on the preliminary review, “there does not believe to be a subjective or objective basis to believe the council violated the hiring of an officer prior to the public to have an opportunity to comment on the employment of the officer, including the public commenting on the standards, criteria, and policy directives in meetings open to the public.”
McIntyre added that, “even though the specific comments were not provided to the council, a summary of the comments appears to have been presented to the council. Whether or not that satisfies the requirement – I felt like it did – but that could be something the Commission determines on their end as well.”
NO OFFICIAL LEGAL COUNSEL
Ervin and Solesbee noted during the hearing that there was no legal counsel present at the meeting, despite the City having access to legal counsel through city insurance.
“We hired a recruitment company, and we were told that they specialized in hiring managers,” Solesbee said. The recruiters “suggested that we go into executive session along with (interim city manager David) Clyne, who also had a law degree and over 30 years experience as a city manager, and so we believed we were in good hands.”
Ervin also noted that Clyne, as the interim city manager, had his salary of $80/hour paid by the recruiting agency that was driving the conversation in the executive session: GMP Consultants. In a letter from GMP Consultants president Greg Prothman to the mayor and council dated Sept. 20, 2023, Prothman explained that upon the council’s approval of Clyne as interim city manager, Clyne would be a GMP employee; therefore, GMP would handle all payroll.
“I worked for the City,” Clyne said. “Yeah, GMP paid my salary because that’s the arrangement they had, but I did all my work on behalf of the City.”
Regardless, Ervin expressed his disapproval with how the meeting went.
“The whole meeting stunk to me. The process stunk, and it sucked to be part of it,” Ervin told OGEC on March 29. “Based on this report, it’s pretty obvious that what went on in that meeting was in violation, and I definitely think it warrants an investigation. I also think that the meeting should be made public, personally.”
City attorney Carrie Connelly wrote to The Chronicle that her lack of attendance was because she was not asked to join the meeting, adding that it is generally the city manager’s responsibility to ask her to join if they needed counsel.
“Suffice it to say, we appear upon request,” Connelly wrote via email to The Chronicle. “We generally leave it to the City to determine when to incur attorney fees and understand that there are many matters which do not merit the City incurring those costs.”
GMP Consultants senior consultant Bob Larson, who led the Dec. 15 executive session, declined to comment.
“The only comment I’ll have is that executive session information is privileged, and we’re going to honor that until such time as we’re asked to talk to any kind of investigating unit,” Prothman said.
MAYOR, COUNCIL RESPONDS
From the start, Solesbee said the conversations held during that executive session seemed inappropriate.
“I did question the legalities of all of this after the meeting was over,” Solesbee said to OGEC on March 22, noting that she contacted the city attorney and called the ethics commission before Zee’s complaint was filed. “I had a lot of concerns about how things were handled.”
On Dec. 22, 2023, the news release drafted by GMP Consultants announced the finalist, and later that day, Solesbee emailed Clyne to inquire about the legality of the verbiage used in the document.
“Is it proper or legal to do a press release about the hiring of a candidate BEFORE an official vote of council in January? That seems backwards,” Solesbee wrote.
“There is no right or wrong way to do this,” Clyne wrote in response. He alleged that information was leaked from the executive session, and he believed it was “prudent to put out an accurate accounting of where the process is at the moment.” He also said in that email that the news release made it “clear” that a decision had not yet been made.
For the Oregon Government Ethics Commission, the verbiage was not clear that a decision had not been met; in fact, it affirmed that decision-making and conversations around salary were discussed in a closed meeting.
“The Letter of Intent indicates that salary and benefits were in fact negotiated prior to the next open meeting … along with other items were negotiated with that preferred candidate such as their start date,” McIntyre said. “The letter appears to be a formal offer that was signed by the mayor on behalf of the city council. All of this combined suggests the council may have made a final decision in executive session.”
Solesbee said she was surprised to see the Dec. 22 news release announcing the finalist for the position, and that neither the mayor or the council were consulted before its release to her knowledge. She also said she felt strong-armed into signing the Letter of Intent.
“I was confused because we hadn’t had an official vote. I thought, ‘What if the majority changes their mind?’ And so that didn’t really make a lot of sense to me. But again, I was going with what the professionals said,” Solesbee told OGEC.
She also alleged that Clyne initiated a meeting with her that was presented under false pretenses. She said Clyne wanted to meet with her to “give her tips on how to be a more effective mayor,” and when she met with him on Dec. 20, 2023, he slid the Letter of Intent for the preferred city manager candidate across the table.
“I was not in favor of this candidate,” Solesbee told OGEC. “I didn’t like the way this whole procedure was handled, but (Clyne) told me it was the consensus of the council, and that I had to sign the contract. I felt like I was signing under duress. But I did sign it.”
Clyne said that since the Letter of Intent was not a contract – simply a statement that the Council wished to begin negotiations with Sauerwein in regards to a final offer – it was within Solesbee’s responsibilities as mayor to sign the document.
“Her job is to sign documents as mayor or give up the job to somebody who’s willing to sign the documents – whether she likes it or not, whether she approves of the documents or not,” Clyne said. “This is sour grapes as far as I’m concerned.”
He said this Letter of Intent was “typical practice,” but added that “standard practice is in the eye of the beholder” – this meaning that there is no set of rules or guidelines which dictates what standard practice is or is not.
“(GMP and I) gave (city council) the best advice that we had to give them,” Clyne added. “If there was any kind of failure there, it certainly wasn’t on the city council. It would have been either me, GMP, or both of us together.”
Councilors Dana Merryday, Alex Dreher, and Mike Fleck, as well as mayor Solesbee, acknowledged frustrations and disappointment in the consulting firm, GMP Consultants, which managed the hiring process and led the closed meeting in question.
“(GMP Consultants are) supposed to be the experts, and it’s disappointing to think that they may have led us right into a public meetings violation,” Dreher said.
Councilor Chalice Savage declined to comment, and councilors Jon Stinnett and Ervin could not be reached by press time.
INVESTIGATION PROCEEDING
OGEC Chair Shawn Lindsay empathized with the council, noting the intricacies that surround hiring a city manager.
“It’s complicated,” Lindsay said. “It’s unfair for citizen councilors … to walk on water as they go through this process. So with that said, I know where my gut is at this point.”
The Commission voted unanimously in favor of pursuing the full investigation. Lindsay said he’d like to see the end result not be punishment, but education.
“I would really like (this investigation) to be heavy on the side of education to help this council navigate the waters that they’re in now and in the future,” Lindsay said.
Each councilor and the mayor are being investigated separately, all on the same allegations. The investigation will take approximately six months to complete, OGEC executive director Susan Myers said.
MAYOR, COUNCIL CONSIDERS ITS OWN INVESTIGATION
At the tail end of last week’s city council meeting on March 25, Solesbee went around the dais to ask each councilor if they consented to allowing city attorney Carrie Connelly to look into the City’s contract with GMP Consultants in search of evidence of a contract breach. She said this was due to the consultants neglecting to provide the council with full work histories of the candidates, among other issues.
“I’m hoping that in light of potential ethics violations we will review GMP’s contract for breach of contract,” Solesbee said.
Ervin agreed to this in January 2024, and the remaining councilors followed suit at the March 25 meeting.
“In sum, I was directed by Council to review GMP’s contract in order to advise on any potential breaches of contract that may give rise to City claims,” Connelly wrote. “I will undertake that review and coordinate my legal advice to Council with city manager Mike Sauerwein.”
When asked for specifics such as a timeline on how this contract would be reviewed, she added that she’s “not at liberty to discuss this matter with non-clients.”
Sauerwein’s base annual salary is $175,000, and will be evaluated on his job performance after six months and one year of employment. After that, the City may evaluate Sauerwine annually or when otherwise deemed appropriate.
