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Mr. Klein commented that he would provide a memorandum clarifying the authority for the ex porte contact starting point, identifying the types of actions to which ex porte contacts applied, and providing guidance to elected officials and staff on contact with parties who were suing the City as well as contacts in the case of a pending quasi-judicial action, including timeframes prior to and following a decision. He cautioned councilors that while discussions following a decision did not have the same impact, it was preferable to err on the side of caution and avoid all contact until the matter was resolved or appeal period had expired. The council took a break from 7:30 p.m. to 7:40 p.m. Council Communications Regarding Employees City Manager Taylor noted that the subject arose in an earlier process session and he asked Mr. Klein to explain the provisions of the Eugene Charter. Mr. Klein distributed a handout that set forth the charter provisions regarding communications to the city manager from the mayor or councilors that could potentially influence the manager in the making of any appointment or removal of city personnel. He advised councilors not to tell the manager that they thought an employee was doing a bad job because it could be inferred that the councilor was attempting to influence the manager to fire the employee, which could result in the forfeiture of the councilor's office. He emphasized that this caution applied to individual communications to the manager outside of a council meeting. He advised that instead of discussing a specific employee, the manager should be told that the services being provided by a department were poorly delivered or a particular program was being operated poorly and specify the reasons, such as from a customer's perspective. City Manager Taylor suggested that councilors could direct their remarks to outcomes, processes, service domain, and particular deliverables attributed to an organization, but not make statements about a specific staff person. Ms. Bettman asked if the same restrictions applied to positive comments regarding a particular employee and if they applied only to comments made to the city manager. Mr. Klein replied that the charter provisions applied to any comments, positive or negative, that could be construed as an attempt to influence the appointment, promotion, or removal of staff, although in the case of positive comments the risk was small if there was no indication from the manager of a pending personnel action relating to that specific employee. He said that a councilor would be equally at risk if negative comments about an employee were made to a supervisor, as those comments were likely to reach the manager. He urged councilors to use common sense in their remarks about City staff as there was no case law available for a judge to interpret should a complaint be filed. Mr. Pap~ said he did not agree with Ms. Bettman that there was equal risk in making positive comments unless there was a promotional opportunity involved. Mr. Klein said that the issue was a question of risk and each councilor must make an individual determination about whether to accept the risk. Mr. Kelly said the only protection against personal risk was to discuss such matters in an open council session. He expressed concern that comments regarding a specific program could be considered as comments regarding the individual staff involved with that program. Mr. Klein said there could be some risk; however, a major factor if the matter went to court was the assessment of a councilor's intent. MINUTES--Eugene City Council September 8, 2004 Page 9 Process Session