CC Minutes - 05/19/99 WS - Laserfiche WebLink

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C.Work Session: Court of Appeals Decision Concerning Toxics Right-to-Know Program At the request of Mr. Farr, Toxics Board members Steve Morgan and Mary O'Brien introduced themselves. City Attorney Jerome Lidz noted that the interveners, followed by the City, asked for a reconsideration of the Court of Appeals' decision overturning the fee basis for the Toxics Program. The City had done the same that day. The action gave the City time to determine if it wished to file a petition for review to the Supreme Court. Mr. Lidz noted that the Court of Appeals rarely acts positively on requests for reconsideration, and he was unsure how quickly it would act. Mr. Lidz reviewed the elements of the Court of Appeals decision. He said that in considering whether to request Supreme Court review of the decision, the council should consider the likelihood of success, the cost, and if there were alternatives to the current fee structure that the council could accept. Mr. Lidz reviewed the costs involved in seeking the Supreme Court's review. Mr. Lidz called attention to three motions related to the issue that had been prepared for council consideration. Mr. Kelly thanked staff and Ms. O'Brien for clarifying a complex situation. He asked for more information about the legal costs involved in a court challenge. Mr. Kelly supported the City joining the interveners in requesting the court's reconsideration. He asked if the City could secure legal assistance from the League of Oregon Cities or other cities interested in such a program. City Attorney Glenn Klein said that it was unlikely the League of Oregon Cities would be likely to help given its limited legal budget and the demands on what funds were available. He did not think there was another Oregon city interested in the subject willing to help. Mr. Kelly asked if the governor would advocate for the program at the Court of Appeals level. Mr. Lidz did not think so, suggesting such advocacy was more likely at the Supreme Court level. Mr. Kelly said that prior to supporting a motion to forward the case to the Supreme Court, he wanted the council to discuss the cost, whether the case would be heard by the court, and whether the City wanted to take a financial chance to make a philosophical point. Mr. Meisner said that he had read the court opinion and, while he did not agree with the substance of the key decision, he believed it was sufficiently well-reasoned and well-crafted to resist an appeal. He would need to be persuaded that filing a petition for review to the Supreme Court would not be futile. He asked if the City had spent money in joining the interveners in their request for reconsideration. Mr. Lidz estimated those costs at about $1,000. Responding to a question from Mr. Meisner, Mr. Klein estimated the cost of supporting the interveners' request at approximately $2,000, depending on what they filed. Mr. Lidz said that what the City filed in support depended on the arguments the interveners put forward. Mr. Rayor asked if there had been consideration of changing the program's fee basis. Mr. Johnson said yes. MINUTES--Eugene City Council May 19, 1999 Page 7 5:30 p.m.