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City Council Packet - 11/15/2005 lG E a Da C IM a N1cILL U will, { RN ~p M.- ETII NFG 'November 15 2,005 C E ~CJgL E i ' IN, 'ILL pTy: g~E . TE'Lj"";`Ih' 1E;D !I a10fs1Do~raa's\cc pRf2 AGENDA ITEM NO. 3 , FOR AGENDA OF lo?- /3.05 CITY OF TIGARD OREGON Tigard City Council Meeting Minutes Date: November 15, 2005 Time: 5:03 p.m. Place: Tigard City Hall, 13125 SW Hall Boulevard Tigard, Oregon Attending: Mayor Craig Dirksen Presiding Councilor Sally Harding Councilor Sydney Sherwood Councilor Nick Wilson Councilor Tom Woodruff Absent: Agenda Item Discussion 8t Comments Action Items (follow up) Special Buyer Barrett reviewed process with the City Council and staff will Meeting Council, including evaluation criteria and how complete evaluation General Legal the interviews will be conducted. forms. Further discussion Counsel will take place in Candidates Council and several Executive Staff members Executive Session on interviewed representatives of the following November 22, 2005, firms that submitted proposals to provide the (ORS 192.660 (2)(a)) City of Tigard with general legal services. Presentation materials were presented to the City Council and staff prior to the meeting. o Ramis, Crew, Corrigan LLP Presenters were: Tim Ramis, Chuck Corrigan and Gary Firestone. Mr. Ramis overviewed the philosophy for service to a municipality and types of services provided by his firm. He noted how the partners and staff in the firm keep each other informed about projects and case updates. He said he knows it is clear that the lawyers are not the policy makers; rather, their objective is to give legal advice and identify options and risk so a rational Tigard City Council Meeting Minutes November 15, 2005 - Page 1 Agenda Item Discussion 8t Comments Action Items (follow up) Special decision can be made. Meeting General Legal Mr. Ramis advised of efforts by the firm to Counsel promote cost containment, which include Candidates having City staff do first drafts of Continued documents and then submit for a review by one of the attorneys. He noted that over the past ten years the trend has been to reduce the number of hours of legal services provided. Mr. Ramis said that he views legal services as a capital investment and referred to building a legal infrastructure with a systemic approach rather than dealing with issues on a case-by-case basis. Mr. Ramis responded to questions by the interview panel; highlights of his responses follow: • Expectations for turn around are established at the initial contact. • The legal question is turned over to the lawyer who has the expertise for the issue under review. • Members of his firm meet weekly to determine assignment status, whether more follow up is needed, or if this is a deeper issue. • Efforts are made to have legal staff available or to have coverage to provide service. • Attorneys meet quarterly with the City Manager to determine if needs are being met. • Preventive initiatives exercised early to avoid litigation. • Address issues early: prepare good findings (land use), raise a caution flag for procedural practices if needed, assess and advise on risk, track changes Tigard City Council Meeting Minutes November 15, 2005 - Page 2 Agenda Item Discussion U Comments Action Items (follow up) Special in the Code to respond to challenges, Meeting keep the Code up to date. General Legal . Noted successes in litigation: Rogers Counsel Machinery, Martin case, and Media Candidates Arts. Continued • If Ramis' firm is selected as the City's legal counsel, the firm will undertake a legal audit of the Tigard Code, at their expense, to determine what changes should be implemented. • Legal staff also would train City staff on issues of concern. • Discussed review of case law and new legislation to keep current. Suggested codifying additional procedures; i.e., elections. • Annexation process in 2004 did not go well. Mr. Ramis said he what he learned from this was to be more proactive in communications with the other lawyer and, while this had been reviewed by many lawyers, they should have looked at the statute one more time. • Costs will continue to increase; cost containment efforts will include efficiency and charge a competitive rate. Noted that his firm has seldom lost cases on procedural grounds; rather, they have often won cases because procedures were followed. • Referred to alternative forms of resolution of issues, including mediation. o Schulte, Anderson, Downes, Aronson 8z Bittner P.C. Presenters were Robert Schulhof and Lee Aronson • Mr. Aronson reviewed his background; Tigard City Council Meeting Minutes November 15, 2005 - Page 3 Agenda Item Discussion U Comments Action Items (follow up) Special municipal experience related to Meeting insurance issues. General Legal Mr. Schulhof's background included US Counsel Navy Judge Advocate General (JAG) Candidates Corps and public service as a Deputy Continued District Attorney. He currently represents clients in product liability litigation, construction defect defense, and real estate matters. While serving in the JAG Corps, he performed many of the same functions as that of a city attorney while working as the Senior Attorney for Naval Station Pearl Harbor Hawaii. • Mr. Schulhof would be the primary attorney for day-to-day account management. • Reviewed the expertise of the lawyers on staff including real property, tort, and corporate/commercial litigation. • Firm is small which means they can "shift people around quickly." • Described their approach to providing service for long-term and short-term legal questions/review. • Risk management would be accomplished by knowing what's going on in City government and developing a relationship with their client. • The attorney is not the "no" man; his mission is to talk about what can be done at the outset. • Stressed importance of basic relationships, communication, and being proactive. • They would be comfortable working with outside counsel. • They would work with the City to determine how the City wants to work with them; how to coordinate on an issue. • Stressed flexibility; noting they can deal Tigard City Council Meeting Minutes November 15, 2005 - Page 4 Agenda Item Discussion U Comments Action Items (follow up) Special with a variety of issues. Meeting . They like what they do and value the General Legal client relationship; they like a challenge; Counsel responsibility would be shared within Candidates the firm. Continued . They do not serve as attorneys for any other Oregon cities. • They have not worked for any local government or special districts except in a litigation context. They would need to get up to speed on non-litigation issues "on our [their] dime." If awarded the contact, they would need to work the next two months to "gear up" by meeting with staff. They would need to become familiar with land use issues. They have been monitoring Measure 37 issues. • They do not foresee seeking outside counsel. The City would utilize other firms for labor matters and bond counsel. Discussed how litigation can be avoided through negotiation. Most of their cases (90 percent) are resolved before litigation. Litigation is a poor way resolve problems. • Reviewed their experience relating to insurance and municipalities. o Harrang, Long, Gary, Rudnick, P.C. Present: ]illian Bruce. (Note: a second presenter from this firm planned to attend from their Eugene office, but canceled due to vehicle problems encountered on the way to this meeting.) • Firm has been in existence for 50 years. • Firm has a strong public law presence Tigard City Council Meeting Minutes November 15, 2005 - Page 5 Agenda Item Discussion U Comments Action Items (follow up) Special with 41 lawyers working on public Meeting matters. General Legal . Offices are located in Portland, Eugene Counsel and Salem. Candidates . Clients include other municipalities as Continued well as private clients. The firm will not take on a client that would represent a conflict. • There is also an employment and labor group in the firm. Described how they would respond to things that happen quickly including "Council-day dilemmas." • They put the right person on a problem and they will be responsible, available, and have the needed expertise. • Will follow the City Council's tone regarding how they want to interact with the community. They are aware of political pressures. • They will keep the "big picture" in mind. Reviewed public clients: Housing Authority, Bend, and Salem. She would be immediately available to the City and referred to experience with development and urban renewal. The challenges for her firm would include water law and bond counsel and she said she did not see her firm getting into these areas. • Described how her firm conducted their business through a team approach and physical presence. To familiarize themselves with the City of Tigard, the firm would develop relationships with staff. They would review the City's budget and Council goals. They would meet with department heads to determine what the issues are. • They are used to working with outside Tigard City Council Meeting Minutes November 15, 2005 - Page 6 Agenda Item Discussion 8E Comments Action Items (follow up) Special Counsel. Meeting . They would work in an efficient, flexible General Legal manner. Counsel . They would update project lists weekly. Candidates . Reviewed procedures to help the City Continued manage legal costs: develop templates for contracts, make suggestions to staff, and make sure they know what is being asked: Is it a request for a full legal analysis or a simple review? They have staff within their firm to do research at a lower rate. She reviewed her service as co-counsel for the City of Hillsboro. Adjournment 6:55 p.m. Motion by Councilor Sherwood, seconded by Councilor Woodruff, to adjourn the meeting. The motion was approved by a unanimous vote of Council present. Mayor Dirksen Yes Councilor Harding Yes Councilor Sherwood Yes Councilor Wilson Yes Councilor Woodruff Yes CCDA Following the Legal Counsel interviews, the Meeting City Center Development Agency meeting was Status of the called to order at 7:07 p.m. (Separate Urban minutes for the CCDA meeting were Renewal Plan prepared.) Tigard City Council Meeting Minutes November 15, 2005 - Page 7 Agenda Item Discussion U Comments Action Items (follow up) Workshop 1.1 Mayor Dirksen called the City Council and Meeting the Local Contract Review Board to Order at 7:20 p.m. 1.2 Council Present: Mayor Dirksen, Councilors Harding, Sherwood, Wilson, and Woodruff. 1.3 Pledge of Allegiance 1.4 Council Communications 8T Liaison Reports: None 1.5 Call to Council and Staff for Non-Agenda Items: None 2. Update on This item was not discussed. Continued to December Potential 13, 2005 Financial-Related (City Recorder's note: Ballot Measures After a staff review of - Other jurisdictions tentative Council meeting agendas, this item is now scheduled for the Study Session on December 20,. 2005.) 3. Update - Risk Manager Mills and Agent of Record Cutter Insurance reviewed current insurance coverage and Coverage and ongoing market negotiations. The City Marketing currently participates in the City/County Insurance Services program. 4. Discussion Police Chief Dickinson presented information After discussion City - Police on accreditation. The Police Department Council consensus was for Accreditation enjoys the status of being professionally the Police Chief to poll accredited; however, some cities are now the police staff to questioning the benefit when considering the determine if they support costs of maintaining accreditation. accreditation. The City Accreditation must be reviewed and renewed Council would also like to on a three-year basis. The Police Department hear from the staff why is in favor of accreditation, but understands they would support fiscal realities for costs/benefits. accreditation. Tigard City Council Meeting Minutes November 15, 2005 - Page 8 Agenda Item Discussion U Comments Action Items (follow up) 4. Discussion - Police Police Chief reviewed state and national Accreditation accreditation programs. He also presented Continued information on a service provided by Lexipol. 5. Discussion Assistant to the City Manager Newton and Determine if time is - Branding/ Consultant Marcusen reviewed refined logo available on the City Logo Design option designs based on previous City Council Council Agenda for feedback.' Council members further narrowed December 13, 2005, to their design preferences. Consultant Marcusen continue the discussion on will return with visual examples showing how the logo design. the final designs appear when applied to signs, stationery, city vehicles, etc. 6. Executive The Tigard City Council went into Executive Direction was given to Session Session at 8:57 p.m. to discuss real property staff regarding real transactions and to discuss current or potential property negotiations. litigation. Executive Session concluded at 10:00 p.m. and Mayor Dirksen reconvened the City Council in open session. Council Council considered the request to create a mid- The request was declined consideration year position in the Police Department for a by a Council consensus. of new new program assistant. staffing position. Adjournment 10:03 p.m. at erlne Wheatley, ty ecor er Attest: c ayor, ity o Tigard Date: lo'~ - 13 -CAS i:tadmtcath = oc Tigard City Council Meeting Minutes November 15, 2005 - Page 9 tw Revised 1 1-9-05 - Meeting Start Time Changed from 6:40 p.m. to 7:10 pm.; Also Revised 1 1-10-05 - Removed Item No. 2 TIGARD CITY COUNCIL MEETING NOVEMBER 1"5, 2005 7:10 p.m. CITY OF TIGARD OREGON TIGARD CITY HALL 13125 SW HALL BLVD TIGARD, OR 97223 PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda item. Citizen Communication items are asked to be two minutes or less. Longer matters can be set for a future Agenda by contacting either the Mayor or the City Manager. Times noted are estimated; it is recommended that persons interested in testifying be present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agenda items can be heard in any order after 7:30 p.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 503-639-4171, ext. 2410 (voice) or 503-684-2772 (TDD - Telecommunications Devices for the Deaf). Upon request, the City will also endeavor to arrange for the following services: • Qualified sign language interpreters for persons with speech or hearing impairments; and • Qualified bilingual interpreters. Since these services must be scheduled with outside service providers, it is important to allow as much lead time as possible. Please notify the City of your need by 5:00 p.m. on the Thursday preceding the meeting by calling: 503-639-4171, ext. 2410 (voice) or 503- 684-2772 (TDD - Telecommunications Devices for the Deaf). SEE ATTACHED AGENDA COUNCIL AGENDA - NOVEMBER 15, 2005 page 1 AGENDA TIGARD CITY COUNCIL MEETING NOVEMBER 15, 2005 • EXECUTIVE SESSION: The Tigard City Council may go into Executive Session. If an Executive Session is called to order, the appropriate ORS citation will be announced identifying the applicable statute. All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 7:10 PM 1. WORKSHOP MEETING 1.1 Call to Order - City Council U Local Contract Review Board 1.2 Roll Call 1.3 Pledge of Allegiance 1.4 Council Communications & Liaison Reports 1.5 Call to Council and Staff for Non-Agenda Items Item No. 2 set over to the December 13, 2005, City Council meeting. -2. I IDIIATIE; 0AI~TFI -1 1 WMAAICIAI DEl AT~BALLOT MEASURES FWM OTHER 711DICIl1~ TIll1~IC Staff Report: Finance -Sta T h r0-unce, DoscussooR 3. UPDATE ON INSURANCE COVERAGE AND MARKETING a. Staff Report: Administration Staff b. Council Discussion 4.' DISCUSSION OF POLICE ACCREDITATION a. Staff Report: Police Staff b. Council Discussion COUNCIL AGENDA - NOVEMBER 15, 2005 page 2 5. DISCUSSION OF BRANDING/GRAPHIC IDENTITY DESIGN a. Staff Report: Administration Staff b. Council Discussion 6. COUNCIL LIAISON REPORTS 7. NON AGENDA ITEMS 8. EXECUTIVE SESSION: The Tigard City Council will go into Executive Session to discuss real property transaction negotiations and to consult with counsel about current or potential litigation under ORS 192.660(2)(e) and (2)(h). All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 9. ADJOURNMENT I:%admtcathylcca120051051115p.doc COUNCIL AGENDA - NOVEMBER 15, 2005 page 3 City of Tigard, Oregon Affidavit of Notification CITY OF TIGARD OREGON In the Matter of the Notification of a Meeting Notice and Change in Meeting Times for the Tigard City Council and the City Center Development Agency STATE OF OREGON ) County of Washington ) ss. City of Tigard ) I, nor a-~' , being first duly sworn (or affirmed), b g Y oath (or affirmation), depose ansay: That I notified the following people/organizations by fax of- o Meeting Notice for a meeting of the Tigard City Council and change in meeting times for the CCDA Meeting and the Tigard City Council Workshop Meeting A copy of said Notice being hereto attached and by reference made a part hereof, on the day of , 20 Barbara Sherman, Newsroom, Tigard Times (Fax No. 503-546-0724) Newsroom, The Oregonian (Fax No. 503-968-6061) Editor, The Regal Courier (Fax No. 503-968-7397) Signature of Person who Perf ed Notification Subscribed d sworn (or affirmed) before me this day of 49© 0 VO' , 20 05. OFFICIAL SEAT. JILL M BYARS NOTARY PUBLIC-OREGON COMMISSION-NO, 9 S nature of of Public for MY COMMI3SION:EXPIRESIREB JUNE. 14, 20Q8 g ~ Oregon a for rim 15 2005.doc 11/09/2005 15:43 FAX 5036847297 City of Tigard 0001 MULTI TX/RX REPORT sacs TX/RX NO 0334 PGS. 6 TX/RX INCOMPLETE TRANSACTION OK [ 0615035460724 TT Newsroom [ 0915039686061 Oregonian 1115039687397 Regal Courier ERROR INFORMATION CITY OF TIGARD OREGON •Jw 1 1 I On November 15, 2005 The Tigard City Council will meet at 5 p.m. to interview candidates from firms that submitted proposals to provide the City of Tigard's legal services at 7 p.m. The Tigard City Center Development Agency (CCDA) Meeting will convene to receive a Status Report on the City Center Urban Renewal Plan at approximately 7:10 p.m. the Tigard City Council will hold a workshop meeting Copies of the CCDA and the City Council Workshop Agendas are attached. Please forward.to: ~/~arbara Sherman, Newsroom, The Times (Fax No. 503-546-0724) 03 wsroom, The Oregonian (Fax No. 503-968-6061) Editor, The Regal Courier (Fax No. 503-968-7397) Notice is hereby given that a meeting of the City Center Development Agency (CCDA) MEETING NOTICE AND CHANGE IN MEETING TIMES TIGARD CITY COUNCIL AND TIGARD CITY OF TIGARD CITY CENTER DEVELOPMENT AGENCY OREGON TIGARD CITY HALL -13125 SW HALL BLVD TIGARD, OR 97223 On November 15, 2005 The Tigard City Council will meet at 5 p.m. to interview candidates from firms that submitted proposals to provide the City of Tigard's legal services at 7 p.m. The Tigard City Center Development Agency (CCDA) Meeting will convene to receive a Status Report on the City Center Urban Renewal Plan at approximately 7:10 p.m. the Tigard City Council will hold a workshop meeting Copies of the CCDA and the City Council Workshop Agendas are attached. Plele forward.to: C arbara Sherman, Newsroom, The Times (Fax No. 503-546-0724) ~ewsroom, The Oregonian (Fax No. 503-968-6061) E9' Editor, The Regal Courier (Fax No. 503-968-7397) Notice is hereby given that a meeting of the City Center Development Agency (CCDA) will be held, following the Tigard City Council meeting, on October 18, 2005, at Tigard City Hall, 13125 SW Hall Boulevard, Tigard, Oregon. The meeting agenda is attached. The CCDA was reactivated by Resolution 05-32 on May 10, 2005, and will meet occasionally to address issues related to urban renewal. The CCDA, functioning as the city's urban renewal agency, will work on an urban renewal plan designed to facilitate the development and redevelopment of downtown Tigard and possibly other areas within,the city. For further information, please contact City Recorder Cathy Wheatley by calling 503- 639-4171, ext. 2410. City Recorder ya Date: aD Post: Tigard City Hall Tigard Permit Center Tigard Public Library i:%admkathytccatcc meeting noticeskcda meeting cc meeting - special meeting - nov 15 2005.doc rNt Revised 1 1-9-05 - Meeting Start Time Changed from 6:40 p.m. to 7:10 pm. TIGARD CITY COUNCIL MEETING L NOVEMBER 15, 2005 7:10 p.m. CITY OF TIGARD OREGON TIGARD CITY HALL 13125 SW HALL BLVD TIGARD, OR 97223 PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda item. Citizen Communication items are asked to be two minutes or less. Longer matters can be set for a future Agenda by contacting either.the Mayor or the City Manager. Times noted are estimated; it is recommended that persons interested in testifying be present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agenda items can be heard in any order after 7:30 p.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 503-639-4171, ext. 2410 (voice) or 503-684-2772 (TDD - Telecommunications Devices for the Deaf). Upon request, the City will also endeavor to arrange for the following services: • Qualified sign language interpreters for persons with speech or hearing impairments; and • Qualified bilingual interpreters. Since these services must be scheduled with outside service providers, it is important to allow as much lead time as possible. Please notify the City of your need by 5:00 p.m. on the Thursday preceding the meeting by calling: 503-639-4171, ext. 2410 (voice) or 503- 684-2772 (TDD - Telecommunications Devices for the Deaf). SEE ATTACHED AGENDA COUNCIL AGENDA - NOVEMBER 15, 2005 page 1 AGENDA TIGARD CITY COUNCIL MEETING NOVEMBER 15, 2005 • EXECUTIVE SESSION: The Tigard City Council may go into Executive Session. If an Executive Session is called to order, the appropriate ORS citation will be announced identifying the applicable statute. All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 7:10 PM 1. WORKSHOP MEETING 1.1 Call to Order - City Council & Local Contract Review Board 1.2 Roll Call 1.3 Pledge of Allegiance 1.4 Council Communications & Liaison Reports 1.5 Call to Council and Staff for Non-Agenda Items 2. UPDATE ON POTENTIAL FINANCIAL-RELATED BALLOT MEASURES FROM OTHER JURISDICTIONS a. Staff Report: Finance Staff b. Council Discussion 3. UPDATE ON INSURANCE COVERAGE AND MARKETING a. Staff Report: Administration Staff b. Council Discussion 4. DISCUSSION OF POLICE ACCREDITATION a. Staff Report: Police Staff b. Council Discussion COUNCIL AGENDA - NOVEMBER 15, 2005 page 2 i 5. DISCUSSION OF BRANDING/GRAPHIC IDENTITY DESIGN a. Staff Report: Administration Staff b. Council Discussion 6. COUNCIL LIAISON REPORTS 7. NON AGENDA ITEMS 8. EXECUTIVE SESSION: The Tigard City Council will go into Executive Session to discuss real property transaction negotiations and to consult with counsel about current or potential litigation under ORS 192.660(2)(e) and (2)(h). All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 9. ADJOURNMENT {:\admtcathytcca@005\051115p.AOc COUNCIL AGENDA - NOVEMBER 15, 2005 page 3 City of Tigard, Oregon Affidavit of Posting CITY OF TIGARD OREGON In the Matter of the Notification of a Meeting Notice and Change in Meeting Times for the Tigard City Council and the City Center Development Agency STATE OF OREGON ) County of Washington ) ss. City of Tigard ) I, _ ( J n h yt a~ c L~ r ~/1 , being first duly sworn (or affirmed), by oath (or affirmation), depose and say: That I posted in ➢ Tigard City Hall, 13125 SW Hall Boulevard, Tigard, Oregon ➢ Tigard Permit Center, 13125 SW Hall Boulevard, Tigard, Oregon ➢ Tigard Public Library, 13500 SW Hall Boulevard, Tigard, Oregon a copy of Notification of a Meeting Notice and Change in Meeting Times for the Tigard City Council and the City Center Development Agency on November 15, 2005. A copy of said Notice being hereto attached and by reference made a part hereof, on the day of 2085' Signature of Person who Performed Posting Subscribed answorn (or affirmed) before me this day of © ✓~W, 20 Df-D . OFFICIAL SEAL JILL M BYARS COM *NOTARY PUBLIC-OREGON M ISSAION EXPIRES JUNE 14, 2008 07ignature/ of otary Public for Oregon i:tadm\catftytccabc meeting noticestaffidavit of posting - council and code for nov 15 2005.doc } MEETING NOTICE AND CHANGE 1N MEETING TIMES TIGA>RD. CITY COUNCIL AND TIGARD CITY OF TIGARD ,CITY CENTER DEVELOPMENT AGENCY OREGON TIGARD CITY HALL 131'2'5 SW HALL BLVD TIGARD; OR' 7223 On November 15, 2005 The Tigard City Council will meet at 5 p.m. to interview candidates from firms that submitted proposals to provide the City of Tigard's legal services at 7 p.m. The Tigard City Center Development Agency (CCDA) Meeting will convene to receive a Status Report on the City Center Urban Renewal Plan at approximately 7:10 p.m. the Tigard City Council will hold a workshop meeting Copies of the CCDA and the City Council Workshop Agendas are attached. Please forward to: ❑ Barbara Sherman, Newsroom, The Times (Fax No. 503-546-0724) ❑ Newsroom, The Oregonian (Fax No. 503-968-6061) ❑ Editor, The Regal Courier (Fax No. 503-968-7397) Notice is hereby given that a meeting of the City Center Development Agency (CCDA) will be held, following the Tigard City Council meeting, on October 18, 2005, at Tigard City Hall, 13125 SW Hall Boulevard, Tigard, Oregon. The meeting agenda is attached. The CCDA was reactivated by Resolution 05-32 on May 10, 2005, and will meet occasionally to address issues related to urban renewal. The CCDA, functioning as the city's urban renewal agency, will work on an urban renewal plan designed to facilitate the development and redevelopment of downtown Tigard and possibly other areas within the city. For further information, please contact City Recorder Cathy Wheatley by calling 503- 639-4171, ext. 2410. City RecordeDate: 0 Tigard City Hall Tigard Permit Center Tigard Public Library I:ledmlcalhylccalcc meeting noliceslccds meeting cc meeting - special meeting - nov 15 2005.doc ft Revised 11-9-05 - Meeting Start Time Changed from 6:30 p.m. to 7 p.m. TI,GARD:CITY CENTER iDEVELOPMENT AGENCY MEETING' 1 CITY OF TIGARD NOUEMBER.15V2005 7 PM OREGON TIGARD CITY'HALL 13:125 SW .HALL BLVD TIGARD' ORa0223 th AGENDA CITY CENTER DEVELOPMENT AGENCY - AN URBAN RENEWAL AGENCY- MEETING NOVEMBER 15, 2005 7:00 PM 1. CITY CENTER DEVELOPMENT AGENCY (CCDA) MEETING 1.1 Call to Order - City Center Development Agency 1.2 Roll Call 2. UPDATE ON THE STATUS OF THE URBAN RENEWAL PLAN a. Staff Report: Community Development Staff b. CCDA Discussion 3. ADJOURNMENT 1Aadmlcethy1ce012 0 0 510 511 15 ccde.doc CITY CENTER DEVELOPMENT AGENCY - NOVEMBER 15, 2005 page 1 rNr Revised 11-9-05 - Meeting Start Time Changed from 6:40 p.m. to 7:10 pm. TIGARD CITY COUNCIL MEETING CITY OF TIGARD NOVEMBER .1512005 _ 7:10 p.OREGON x TIGARD CITY HALL'. l 3125 :SW :HALL` BLVD TIGARD- OR 97223; PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda item. Citizen Communication items are asked to be two minutes or less. Longer matters can be set for a' future Agenda by contacting either the Mayor or the City Manager. Times noted are estimated; it is recommended that persons interested in testifying be present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agenda items can be heard in any order after 7:30 p.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 503-639-4171, ext. 2410 (voice) or 503-684-2772 (TDD - Telecommunications Devices for the Deaf). Upon request, the City will also endeavor to arrange for the following services: • Qualified sign language interpreters for persons with speech or hearing impairments; and • Qualified bilingual interpreters. Since these services must be scheduled with outside service providers, it is important to allow as much lead time as possible. Please notify the City of your need by 5:00 p.m. on the Thursday preceding the meeting by calling: 503-639-4171, ext. 2410 (voice) or 503- 684-2772 (TDD - Telecommunications Devices for the Deaf). SEE ATTACHED AGENDA COUNCIL AGENDA - NOVEMBER 15, 2005 page 1 e ' AGENDA TIGARD CITY COUNCIL MEETING NOVEMBER 15, 2005 • EXECUTIVE SESSION: The Tigard City Council may go into Executive Session. If an Executive Session is called to-order, the appropriate ORS citation will be announced identifying the applicable statute. All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 7:10 PM 1. WORKSHOP MEETING 1.1 Call to Order - City Council 81 Local Contract Review Board 1.2 Roll Call 1.3 Pledge of Allegiance 1.4 Council Communications 8T Liaison Reports 1.5 Call to Council and Staff for Non-Agenda Items 2. UPDATE ON POTENTIAL FINANCIAL-RELATED BALLOT MEASURES FROM OTHER JURISDICTIONS a. Staff Report: Finance Staff b. Council Discussion 3. UPDATE ON INSURANCE COVERAGE AND MARKETING a. Staff Report: Administration Staff b. Council Discussion 4. DISCUSSION OF POLICE ACCREDITATION a. Staff Report: Police Staff b. Council Discussion COUNCIL AGENDA - NOVEMBER 15, 2005 page 2 5. DISCUSSION OF BRANDING/GRAPHIC IDENTITY DESIGN a. Staff Report: Administration Staff b. Council Discussion 6. COUNCIL LIAISON REPORTS 7. NON AGENDA ITEMS 8. EXECUTIVE SESSION: The Tigard City Council will go into Executive Session to discuss real property transaction negotiations and to consult with counsel about current or potential litigation under ORS 192.660(2)(e) and (2)(h). All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 9. ADJOURNMENT I: 1edmlcethylcca120051051115p.doc COUNCIL AGENDA - NOVEMBER 15, 2005 page 3 AGENDA ITEM # FOR AGENDA OF November 15, 2005 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Update on Potential Financial Related Ballot Measures from Other Jurisdictions PREPARED BY: Tom Imdieke DEPT HEAD O CITY MGR OK ~U4 fo/ CC ISSUE BEFORE THE CO CIL Staff will present a summary of potential financial ballot measures that other local jurisdictions are planning to place before the voters over the next few years. STAFF RECOMMENDATION Information Only INFORMATION SUMMARY As the City continues the effort to develop a plan to address the financial stability of the City, the financial measures that the surrounding jurisdictions are taking to the voters could conceivably impact or compete with Tigard's ability to successfully have measures approved by voters. Therefore, it is important to monitor and assess what the impacts could be of these competing measures. At this point, this is an update of what is currently being planned by other jurisdictions. Periodic updates will be planned in the future in conjunction with any recommendations that may be forthcoming from the work of the Financial Strategy Task Force. OTHER ALTERNATIVES CONSIDERED N/A - Information Only VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY N/A ATTACHMENT LIST None, information will be provided at the meeting. FISCAL NOTES N/A AGENDA ITEM # FOR AGENDA OF 11/15/05 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Insur ce Coverage and Marketing Update PREPARED BY: Loreen Mi s 71 EPT HEAD OK a CITY MGR OK G ) -U W fOl - - ISSUE BEFORE THE COUNCIL Receive an update regarding the City's insurance coverage and an update on the City's insurance marketing strategy for 2006. STAFF RECOMMENDATION Receive update information. INFORMATION SUMMARY The City of Tigard uses the services of an Insurance Agent of Record to purchase property/casualty and workers' compensation insurance coverage each year. Mr. Ron Cutter with JBL&K Risk Services is our Agent of Record for insurance purposes. The insurance market continues to be a "hard market" in Oregon for city liability coverage which results in increasing cost for coverage and decreasing provider options. It is anticipated this will continue to be the case in 2006. More information will be provided about this process, the resulting coverage decisions, and ongoing market negotiations during the briefing by staff and our Agent of Record. A brief review of current insurance coverage and what Council members can do to afford themselves of the protection offered in our policies will also be addressed. OTHER ALTERNATIVES CONSIDERED None VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY N/A ATTACHMENT LIST None FISCAL NOTES Funds are annually budgeted for both the property/casualty and workers comp insurance premiums AGENDA ITEM # FOR AGENDA OF November 15, 2005 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Discussion on Police accreditation renewal. PREPARED BY: Chief Bill Dickinson DEPT HEAD OK W M0 CITY MGR OKft" ff V- ISSUE BEFORE THE CITY COUNCIL This is a request for direction from the City Council on whether or not the Police Department should expend funds and staff time to renew our current accreditation through the Oregon Accreditation Alliance (OAA) and/or the National accreditation organization, CALEA (Commission on Accreditation for Law Enforcement Agencies). STAFF RECOMMENDATION The Police Department enjoys the status of being professionally accredited; however, some cities are now questioning the benefit versus the costs of maintaining accreditation which must be reviewed and renewed on a three-year basis. The Police Department is in favor of accreditation, but understands fiscal realities and desires that the cost benefit issue be decided by the City Council. INFORMATION SUMMARY Tigard Police applied for and went through, the State-level accreditation process achieving accreditation from the Oregon Accreditation Alliance in April 2003. That accreditation expires in April 2006, and the City must decide whether to pursue re-accreditation or not to pursue re-accreditation. In the alternative, the City could consider raising its accreditation status to the national level, which is a higher (and more costly) set of standards. At issue, is whether the direct and indirect costs required of accreditation are worth the benefit received. While the Police Department is rightfully proud of having achieved accreditation at the State level, there does not appear to be a direct financial benefit to the City. Increasingly, police agencies in the United States are re-visiting the cost/benefit issue. Some are choosing to withdraw while many are choosing to pursue and/or renew their accreditation. In most cases, it comes down to a fiscal decision which is made at the city council level. In addition to the direct financial costs of maintaining accreditation, the commitment of staff time is substantial. If we choose to pursue re- accreditation at the State level, the Police Department will need to commit one Officer full time, beginning in January, in order to accomplish the task. The time commitment is even more costly in dollar terms than the direct cash outlay paid to the O.A.A. OTHER ALTERNATIVES CONSIDERED 1. Choose not to expend the money and staff time to seek re-accreditation. 2. Seek Oregon re-accreditation through the OAA. 3. Seek National accreditation through CALEA. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Accreditation is not specifically addressed in Vision Task Force Goals, but it is addressed in the City's Core Values: "The City of Tigard is dedicated to setting the standard 'for service excellence. To that end, the organization is committed to citizens and employees working together (Participation), consideration and respect for new ideas (Innovation)........." The issue of Police Accreditation would fall under striving for "service excellence" and the notion of "Innovation". ATTACHMENT LIST Attachment A: A paper on "LAW ENFORCEMENT ACCREDITATION: THE DESIRABLE FUTURE OR JUST ANOTHER PASSING PHASE?" by James F. DuPont. FISCAL NOTES We have already accomplished initial accreditation with OAA. The direct annual cost of State accreditation is, $2,050 per year, every year, approximately $600 once every three years for the site inspection, plus staff time to maintain our accreditation based on the 147 standards to be met. ' The cost to achieve national accreditation is $8,650 for initial accreditation plus $4,030 per year, every year ; thereafter. The staff time involved in achieving national accreditation is substantially more since there are 446. standards to be met. 0admkathy\formstagenda item summary sheet • ccda.doc Law Enforcement Accreditation: The Desirable Future or Just Another Passing Phase? James F. DuPont Abstract This exploratory field study sought the opinions of the chief executive officers of 228 law enforcement agencies in North America about agency accreditation. Each of these agencies have been accredited through the Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA). Their opinions were solicited through a single mail questionnaire to determine the viability of their agencies remaining with CALEA, seeking an alternative accrediting agency, or foregoing accreditation in the future. This study found that, although there are problems with accreditation, there is overwhelming support for the process in general and for CALEA specifically. Introduction The question addressed in this study is twofold: will the trend of accreditation continue to become the "desirable future" of law enforcement agencies, and should the Commission on Accreditation for Law Enforcement Agencies, Inc., (CALEA) continue to be the authority for that accreditation? (Morrison, Renfro, & Boucher, 1984) Law enforcement agencies in the United States and Canada have long sought the goal of professionalism. Every blue ribbon commission dealing with law enforcement has called for this professionalism. It was many years after the 1929 Wickersham Commission before concrete steps would be taken to establish the professional standards by which all law enforcement agencies in the United States and Canada could be measured (Tafoya, 1986). The Omnibus Crime Control and Safe Streets Act of 1968 created the Law Enforcement Assistance Administration (LEAH). In September, 1979, LEAA awarded a grant to the International Association of Chiefs of Police (IACP) to develop and maintain an accreditation program for law enforcement agencies (Dean, 1980). In December of that year, IACP, working with the National Organization of Black Law Enforcement Executives, the National Sheriffs Association, and the Police Executive Research Forum, founded the Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA) (Cotter, 1985). In May, 1984, CALEA accredited its first law enforcement agency (Mount Dora, Florida) and, as of August, 1992, a total of 228 agencies in the United States and Canada have achieved the standards of professionalism as set out by CALEA. Literature Review Preliminary research was conducted on accreditation through extensive reading. Over 84 articles on the subject dating back to 1980 were found in such periodicals as The National Sheriff Magazine, FBI Law Enforcement Bulletin, Crime Control Digest, CALEA Commission Update, The Police Chief, and Law and Order. In 1989, the Police Executive Research Forum (PERF) published Making the Grade: The Benefits of Law Enforcement Accreditation, by Chief Gerald L. Williams of the Aurora, Colorado Police Department. The PERF discussion paper is an abridged version of Chief Williams' 1988 doctoral dissertation. In his dissertation, Chief Williams studied various law enforcement agencies which had been accredited, or were in the process as of December 31, 1986: The premise of the study is that the national accreditation program, by mandating an in-depth organizational self-assessment and compliance with nationally developed standards, is addressing two of the major prerequisites of organizational professionalization. (Williams, 1989, p vii) Chief Williams designed a questionnaire to gauge the impact of accreditation in four areas: Delineation of agency goals and policies Use of deadly force Police pursuits The collection and preservation of evidence. The questionnaire also asked for information on agency characteristics, the direct and indirect costs of accreditation, the changes that had occurred as a result of accreditation, and the benefits and disadvantages of accreditation for police personnel, the agency as a whole, and the community. Finally, the chief executives were asked whether they would seek reaccreditation (Williams, 1989). Chief Williams' discoveries are interesting and enlightening, however, the concerns of this study are mainly the "also asked" information on Chief Williams' questionnaire. A real test of the worth of any action or program is the answer to the question, "would you do it again?" Chief Williams asked the question, "Will you initiate and follow through with reaccreditation when your initial five years has expired?" One agency did not respond to the question. The remaining agencies said they would seek reaccreditation when their current five-year accreditation expired. As no agency in his study indicated that it would not seek reaccreditation, it can be inferred, except for the one who failed to answer, that the rest were committed to seek reaccreditation. However, since his survey, several of these agencies have withdrawn from CALEA. This seems fairly significant if it represents a reversal of an agency's determination to remain committed to the accreditation process. Of special significance is the withdrawal of the San Diego County, California Sheriffs Office from the process. The San Diego County Sheriffs Office participated in Chief Williams' study, and Sheriff John F. Duffy wrote the foreword to Chief Williams' PERF discussion paper. Sheriff Duffy was sheriff of San Diego County in 1986, when the department "became the largest agency in the nation to achieve accreditation" (Williams, 1989). At the time he wrote the foreword, Sheriff Duffy was serving as chairman of the Commission on Accreditation for Law Enforcement Agencies, Inc. In March, 1990, Wayne I. McCoy, of the Westerville Division of Police, Ohio, produced Stop the Rhetoric: Can Accreditation Really Work? for the FBI National Academy. In his study, McCoy addressed the question, "is accreditation viable for the law enforcement community?" To accomplish this, he designed a questionnaire to provide insight into the "benefits and difficulties of the accreditation process". The questionnaire was sent to 35 randomly chosen agencies involved in the accreditation process. Of the 35 agencies, 32 returned their questionnaires. Seventeen of the responding agencies were accredited at the time and 15 were not. Of the 17 accredited agencies, six have achieved reaccreditation and the remaining 11 have not reached the five year reaccreditation point as of this writing. None have withdrawn. Of the 15 agencies who were "in the process," three have been accredited, four have withdrawn from the process and no longer seek accreditation through CALEA. Eight have not achieved accreditation as of May 1992, although some have been "in the process" for over two years. In his study, McCoy discussed the "dark side" of the accreditation process. His study indicated that for every agency that identified positive benefits of accreditation, each agency also identified problem areas. Although his study highlighted a long list of difficulties with the accreditation process, he states "this list of difficulties is not insurmountable. They are realities that must be dealt with if an agency is to receive accreditation. Awareness of and preparation for known problems will decrease the number of bad surprises in the process" (McCoy, 1990). He concluded that there are "obvious, substantial benefits to be gained" by the accreditation process ...but "if the decision is made to pursue accreditation, it must be made with adequate resources, political commitment, and great confidence in the ability and willingness of all of the agency's personnel" (McCoy, 1990). In 1990, the Florida Statistical Analysis Center of the Florida Department of Law Enforcement (FDLE) conducted a survey of Florida chiefs of police who were members of the Florida Police Chiefs Association. Of the 167 agencies who replied to the survey, 129 (77.25%) were not.accredited nor were they involved in the accreditation process. Of the 167 departments which responded, 63% felt that police departments should be accredited. Several mentioned problems associated with the direct (funds) and indirect (personnel) costs involved with accreditation, and the majority of respondents (70.06%) agreed that state revenue should be available to local agencies for accreditation. More than half felt that Florida should develop its own accreditation program. In addition to this preliminary research, numerous key people involved with law enforcement accreditation were interviewed for their input: Michael Brown, Legislative Aide to the Honorable James Moran, Democrat, Virginia, author of the Law Enforcement Responsibility Act of 1991, Captain Tony O'Brien, President of the Florida Police Accreditation Coalition; Chief Lee McGehee of the Ocala Police Department; and Sergeant Ward D. Rheintgen of the Northfield, Illinois Police Department, who is conducting similar research for a master's thesis. Methodology The goal of this study was to survey law enforcement agencies accredited by the Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA) in order to get their opinions, experiences, and feelings on various subjects dealing with law enforcement accreditation in general, and specifically with CALEA. Table 1 To answer the two-part question of Respondents by Number of Years Accredited this study, a survey questionnaire was mailed to the chief executives of the 228 Years Accredited # Respondents organizations that had achieved 0- 1.49 37 accreditation through CALEA between 1.50- 2.49 26 May 25, 1984 and July 1992. In addition, 2.50- 3.49 34 the results of those responding to the 3.50- 4.49 33 4.50- 5.49 26 survey were compared against existing 5.50- 6.49 20 data on accreditation, in general and 6.50- 7.49 14 CALEA specifically. 7.50+ 9 In July, 1992, a questionnaire of 57 Years accredited is based on the date of first accreditation questions was tested with members of by the Commission on Accreditation for Law Enforcement the Charter Class of the Florida Criminal Agencies, Inc. (CALEA) to August 10, 1992. Justice Executive Institute, Senior Leadership Program; the Florida Department of Law Enforcement Statistical Analysis Center; and selected Table 2 members of the St. Johns County Respondents by Agency Size Sheriffs Office. As a result of the feedback Number of received from the pilot test mentioned Agency Size Respondents above, a final questionnaire of 59 1- 9 0 questions was developed. A Likert-style 10- 24 10 25- 49 29 format was chosen due to the severe 50- 199 87 time restraints of most chief executive 200- 599 38 officers and the necessity that the 600- 999 18 questionnaire be self-administered. In 1000- 2999 14 addition, this format is much easier to 3000+ 4 code (deVaus, 1986). An attempt to overcome the disadvantages inherent with this format was made by providing space for respondents to comment. Anticipating that many chief executive officers would be reluctant to personally fill out another survey, a letter asking their cooperation and participation in the survey was sent by Sheriff Neil J. Perry to each chief executive officer. Responses were received from 200 of these agencies resulting in a respectable 87.72% response rate. (A breakdown of these agencies is given in Tables 1 - 3, at left.) Of the eight agencies listed by CALEA as withdrawn, responses were received from seven (87.50%). Their answers were included with the agencies not listed as withdrawn. It is suspected that there are more agencies who consider Table 3 themselves withdrawn than are Respondents by Agency Type shown on the CALEA list, but Agency Type # Accredited# Respondents not many more, as the Police Dept 181 155 Sheriffs Ofc 32 30 percentages of statements Other 15 15 dealing with this subject ap- pears to be between 4% and 6% which is consistent with the "withdrawn" percentage of 3.51 % shown by CALEA. The high response rate means that survey responses generally represent the attitudes of both accredited and withdrawn agencies. The distribution of responses does not indicate that a specific group is dissatisfied with accreditation or has concerns about the questions on the survey. The questionnaire was designed to provoke response. Some of the questions were phrased in a confrontational manner in order to stir respondents' emotions. There was no hidden agenda in the survey. The sole objective of the study was to get to the honest feelings of the respondents. Honest feelings are sometimes very difficult to uncover in an area that is fraught with political pitfalls. To illustrate the dilemma, an agency which had received the survey asked if there would be any way that the respondents could be identified in the finished study, because the agency was concerned that its governing body would be displeased if they knew how the agency really felt about accreditation. Even with personal assurances of anonymity, the agency decided not to respond. Their fear was that they might be identified during analysis by agency size or state. Other agencies refused to respond because of suspected bias contained in the survey. Of the 200 completed questionnaires received, 84 submitted comments. In many cases it was difficult to determine who had actually written the comments. The best estimate is that approximately 50 percent were written by the Chief Executive Officer and 50 percent were written either by the current accreditation manager or a senior staff assistant. In all cases, it is assumed that the comments were approved by the Chief Executive Officer prior to transmittal. It is possible that these comments, even more than the questionnaire results, indicated the "bedrock" feelings of the law enforcement accredited agencies in North America. Data Analysis Responses were analyzed by agency type and size, years accredited, and subject groups. (A complete copy of the survey and total responses is provided in Appendix A, at the end of this paper.) During analysis the two largest agency size categories were consolidated, in order to reduce the possibility of determining the identity of a particular agency with a particular question. The results of applicable questions of previous studies were compared to the results of like questions in this study. The sample size of the FDLE survey is somewhat similar to the sample size of this study. The FDLE survey dealt only with Florida police departments, of which most were not accredited nor involved in the accreditation process; whereas this study dealt on an national scale exclusively with agencies which had achieved accreditation. These differences notwithstanding, it is interesting to note that 138 out of 167 respondents in the FDLE survey felt that police departments should be accredited, but only 38 were actually accredited or were involved in the process. Of the 100 agencies not accredited or involved in the process,, the most commonly cited reasons for not seeking accreditation were: 1. Too costly in time and money, especially for small agencies 2. Supports state accreditation 3. Benefits don't justify the costs 4. Don't believe in concept 5. Not flexible to geographical location 6. No proof it helps 7. Standards too broad By far the reason most stated for not seeking accreditation was that it was too costly in time, money, and staffing, especially for small agencies. The argument has not been substantiated by this study, as 30 of the 39 agencies (76.92%) with 10 to 49 employees reported that reaccreditation is worth the money. In addition, 28 of these same agencies (71.79%) reported that the manpower requirements necessary to maintain accreditation status is an acceptable cost. Only 2 of the 39 (5.12%) indicated that they would be able to eliminate at least one position should they drop accreditation. The majority of the agencies (employing 10 to 49) who responded to this study disagreed with the above statements, except for number 2. The actual experiences of the smaller agencies should give some hope to these agencies that accreditation can be accomplished at an acceptable cost. The second most stated comment in the FDLE study is that many chiefs are not supportive of a national accreditation for law enforcement, but are supportive of a state run accreditation process. Of the agencies with 10 to 49 employees responding to this survey, only 13 out of 39 (33.33%) would consider a statewide accrediting body in addition to CALEA, or support a state process should CALEA fail. Also, 34 out of 39 (87.18%) agreed that for accreditation to have any real impact on the profession aIization of law enforcement, it must be national in scope. Although there is little support for state control of law enforcement accreditation in this study, there is nevertheless considerable interest nationwide in state accrediting bodies. There are several statewide organizations which administer law enforcement accreditation programs, and in July 1991, the New York State Division of Criminal Justice Services announced the formation of a "National State Law Enforcement Accreditation Network." In addition, there is at least one statewide organization in Florida that has recently completed the development of standards for a statewide accrediting body. However, they are not ready to promulgate at this time. It is the author's opinion that most of the law enforcement activity at the state level is in direct response to the financial burden the accreditation fees (as opposed to the cost of maintaining accreditation) place on small law enforcement agencies. If, as this study indicated, "in order for accreditation to have any real impact on the professionalization of law enforcement, it must be national in scope," then this activity at the state level could be counterproductive to the overall goal of the professionalization of law enforcement. Possible funding source In June 1991, Dr. Betty B. Bosarge, the Managing Editor of Washington Crime News Services, published an article in Crime Control Digest in which she severely criticized a proposed funding source for law enforcement accreditation. The proposal was "The Law Enforcement Responsibility Act of 1991", H.R. 4270, which was introduced in the House of Representatives on February 19, 1992 by Congressman James Moran, Democrat, Virginia. On a survey question concerning the proposed bill, 75% of the responding agencies indicated that they were unfamiliar with it. Most of the law enforcement agencies in North America are small agencies. In the United States there are over 17,000 law enforcement agencies. It seems quite apparent to this author that the small agencies (1-49 employees) should comprise the majority of the agencies accredited by CALEA. This is not the case and it appears that the situation will not be corrected until some alternate funding mechanism can be developed for the small agencies. Hohensee (1992) might be correct when he indicated CALEA has "become available to only those fortunate agencies who have the resources to spare, both monetary and in personnel. Smaller, less well financed agencies who might benefit most from such an initiative, are precluded from participation." In this author's opinion, the defeat of any proposed funding source which might alleviate this situation would be counterproductive to law enforcement professionalization. Conclusions There were many thought-provoking and intelligent opinions offered by the respondents. The solutions to the problems of law enforcement accreditation may very well be found in these statements. In the author's opinion, the statement that best exemplifies the status of law enforcement accreditation in North America was submitted by one of the respondents: I see law enforcement accreditation as a positive step toward true professionalism in police service over and above the process itself. It is, above all, a dynamic process with far reaching potential. The current process. has fostered substantial interaction between the mid-managers at the local, regional, state, and national levels through coalitions and other help groups. These are folks who are actively and directly involved in the delivery of the service. They are also the future leaders in the law enforcement community. These interactions have provoked the ever increasing exchange of problems and ideas. This increased communication among law enforcement practitioners provides a good foundation for providing efficient and quality police service today and in the future. (anonymous) After serving in the U.S. Air Force as an aeronautical navigator and a staff intelligence officer, Director DuPont joined the St. Johns County, Florida Sheriffs Office in 1971. He was promoted to Director of Operations in 1985 and served in that capacity until his appointment as Director of Planning and Research in 1991. Director DuPont attended the FBI National Academy and the Charter Class of the Florida Criminal Justice Executive Institute's Senior Leadership Program. References Bosarge, B. (1991). Mandatory minimum standards sought by law enforcement responsibility act in Congress. Crime Control Digest, 25(23), 1-5. Cotter, J. (1985, March). Accreditation for small police departments. The Police Chief, pp. 40-49. Dean, W. (1980, September 12). Accreditation for law enforcement The Police Chief. deVaus, D. (1986). Surveys in social research. London: George Allen & Unwin. Diegelman, R. (1983, February 8). Results of field test data so far very pleasing to commission. Crime Control Digest. Hohensee, J. (1992, September). Developing cost-effective alternatives. Law and Order. McCoy, W. (1990). Stop the rhetoric: Can accreditation really work? Washington, D.C.: FBI National Academy. Morrison, J., Renfro, W., & Boucher, W. (1984). Futures research and the strategic planning process: Implications for higher education. Tafoya, W. (1986). A Delphi forecast of the future of law enforcement. Washington, D.C.: U.S. Department of Justice, Federal Bureau of Investigation. Williams, G. (1989). Making the grade: The benefits of law enforcement accreditation. Washington, D.C.: Police Executive Research Forum. Appendix A Accreditation Survey Subject Question Strongly Undecide Disagre Group Agree/ d e/Strong Agree ly Disagre e 1 Accreditation was a good step toward the 93.50% 3.50% 3.00% rofessionalization of this agency. 3 My staff is committed to maintaining our 94.2 '4.2 1.6 accredited status through CALEA. (Disregard if withdrawn 6 1 would consider a statewide accrediting body 37.2 22.3 40.5 in addition to CALEA. (Disregard if withdrawn 1 Creativity and progressiveness was improved 80.8 8 11.2 in this agency due to accreditation. 6 In order for accreditation to have any real 83 8 9 impact on the professionalization of law enforcement, it must be national in scope. 6 Statewide Law Enforcement Accreditation 82.4 14 3.6 Coalitions or PACS are beneficial. 3/5 The awarding of "string-free" grants to 58.7 14.3 27 agencies for accreditation and reaccreditation would strengthen my resolve to remain with CALEA. 5 The Law Enforcement Responsibility Act of 48 28 24 1991 proposed by Congressman James Moran (D-VA), "will result in massive Federal control of state and local law enforcement" (Bosarge, 1991). (If you are unfamiliar with this Act, lease do not answer this question.) 6 Any law enforcement accreditation body that 49.2 20.8 29.9 is governmentally administered (either state or federal) will most likely lead to government control of local law enforcement. 6 Governmental control (State or Federal) is 54.1 20.4 25.5 ultimate) bad for local law enforcement. 3/6 If CALEA should fail for any reason: 1. The State Police Accreditation Coalitions 28.6 30.2 41.1 (PACS) should form a private commission/ corporation and administer the accreditation process. 2. An existing national private organization 33 32 35 such as the National Sheriffs Association or Chiefs Association should take over the accreditation process. 3. An existing state private organization such 8.9 27.4 63.7 as the Florida Sheriffs Association or some such organization should take over the accreditation process. 4. Each state government should take over 13.9 23.2 62.9 the accreditation process. 5. The federal government should establish an 23.3 23.3 53.4 independent commission to administer the accreditation process. 3 CALEA will not fail. 61.2 33.2 5.6 3 CALEA should be more responsive to the 66.3 17.9 15.8 state coalitions. AGENDA ITEM # FOR AGENDA OF November 15, 2005 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE DISCUSSION OF BRANDING/GRAPHIC IDENTITY DESIGN 1~ PREPARED BY: Elizabeth A. Newton DEPT HEAD OK CITY MGR OK 9 u ISSUE BEFORE THE COUNCIL Council review of branding/graphic identity final design options. STAFF RECOMMENDATION Review the final design options and provide direction for development of a final design.. INFORMATION SUMMARY City Council met with Glen Marcusen in work sessions in July, September and October to discuss and review concepts for a new graphic identity for the City. Based on the feedback Council provided at the October 18 workshop meeting, Mr. Marcusen will present a refinement of the final design concept for Council to review and provide direction for the final design. OTHER ALTERNATIVES CONSIDERED N/A VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY N/A ATTACHMENT LIST N/A FISCAL NOTES The contract with Marcusen Design is not to exceed $10,500. i:\adm\city councilkouncil agenda item summaries\2005\ais for branding design review0501 115.doc11/3/05 General Legal Counsel Interviews by the Tigard City Council and Tigard City Staff November 15, 2005 5-7 PM 1. Call to Order o Mayor Dirksen 2. Roll Call 3. Interviews 4. Adjournment ♦ TOWN HALL Public Welcome 1:1adm~Umerlcily councilicc ardital counsel intemiew .doc 2005 REQUEST FOR PROPOSALS ATTORNEY SERVICES FIRMS PROPOSING FOR GENERAL SERVICES FIRINI= f 4PROPOSED ° u r P-.ROPQSCD CLIENT Piu ,ALs NCI r~DDRESS F SERVICES P HOURLY RATES REFERENCES . Partner/Of Counsel $165 Ramis, Crew Corrigan LLP Sr. Associate $145 City of Milwaukie 1727 NW Hoyt Street General Attorney Timothy V. Ramis Associate $115 City of West Linn Portland, Oregon 97209 Law Clerk/Legal Asst. $70 S. Clackamas Tran. District Secretarial $50 Schulte, Anderson, Downes, Partner $200 PGE Aronson & Bittner P.C. Sr. Associate $175 Professional Liability Fund 811 SW Naito Parkway General Attorney Robert P. Schulhof, Jr. Associate $160 Koselka & Devine Suite 500 Paralegal $75 State Farm Insurance Portland, Oregon 97204 Weekly Council $130(3 hour USAA Insurance Attendance minimum) AIG General Harrang, Long, Gary, City of Eugene Rudnick P.C. Shareholder $235-$325 PDC 1001 SW Fifth Avenue, General & Labor Jillian R. Bruce Associate $155-$235 City of Salem Suite 1650 Attorney Caroline R. Guest Paralegal $85-$95 Labor Portland, Oregon 97204 Secretarial $55 City of Eugene Eugene Water & Electric Board (EWEB) Housing Authorit of Portland City of Damascus Jordan Schrader P.C. Attorney $175 City of Estacada PO Box 230669 General & Labor Eileen G Eakins Paralegal $130 City of Forest Grove Portland, Oregon 97281 Attorney Andrew Jordan Project Assistant $35 City of King City Lane Transit District Ramis Crew Corrigan Proposal Score Sheet Submitted on time i 1' ws N/A Pass Original + 3 copies Pass A '..,N/A Pass Transmittal letter Pass Pass 30 Oo/ Firm qualifications :The evaluation of the firm's qualifications as listed 60 & experience : under Section 5 of this RFP Packet. Project Team member :The evaluation of the firm's team members' qualifications & experience :based upon the information listed in the statement . :of team member qualifications detailed in 40 t 20 U° ::Section 5. Project understanding An evaluation of the firm's work plan and ' and approach :general understanding of the work as detailed in 35 # yI7 ::Section 5. ompensation :The evaluation of the proposed compensation :structure will consider the overall cost (fees plus out- :of-pocket expenses), and the proposed hours and City :assistance requested. All of these factors are 45 225 important in evaluating the reasonableness of the fee :and the Proposer's understanding of the requirements. Presentation/Interview :An evaluation of the firm's presentation/interview. 20 10:0% :To be conducted on Tuesday, November 15, 2005. ~ 11 111' Review Team Member: Schulte, Anderson, Downes, Aronson & Bittner P.C. Proposal Score Sheet To Submitted on time Pass.'. N/A Pass Original + 3 copies Pass- NLA _ Pass Transmittal letter Pass N/A Pass Firm qualifications :The evaluation of the firm's qualifications as listed 60 30.00/6, & experience :under Section 5 of this RFP Packet. Project Team member :The evaluation of the firm's team members' qualifications & experience :based upon the information listed in the statement 40 20.,0%.- €of team member qualifications detailed in Section 5. Project understanding :An evaluation of the firm's work plan and and approach ;general understanding of the work as detailed in 35, 17.5% i Section 5. Compensation - :The evaluation of the proposed compensation :structure will consider the overall cost (fees plus out- :of-pocket expenses), and the proposed hours and City :assistance requested. All of these factors are 45 22.5% ':important in evaluating the reasonableness of the fee :and the Proposer's understanding of the requirements. Presentation/Interview :An evaluation of the firm's presentation/interview. 20 10 0% :To be conducted on Tuesday, November 15, 2005. • I I 11 I' Review Team Member: Harrang, Long, Gary, Rudnick P.C. Proposal Score Sheet Submitted on time Pass N%A Pass Original + 3 copies Pass N/A Pass Transmittal letter Pass N/A . Pass Firm qualifications :The evaluation of the firm's qualifications as listed 60 30-0"'/0 & experience :under Section 5 of this RFP Packet. Project Team member :The evaluation of the firm's team members' qualifications & experience :based upon the information listed in the statement 40 20.0" :of team member qualifications detailed in Section 5. Project understanding An evaluation of the firm's work plan and and approach :general understanding of the work as detailed in 35 17.5% Section 5. Compensation 'The evaluation of the proposed-compensation :structure will consider the overall cost (fees plus out- :of-pocket expenses), and the proposed hours and City :assistance requested. All of these factors are 45 22.5° ; important in evaluating the reasonableness of the fee :and the Proposer's understanding of the requirements. Presentation/Interview :An evaluation of the firm's presentation/interview. :To be conducted on Tuesday, November 15, 2005. 20 1 0.0° ~ II II I Review Team Member: Ramis, Crew Corrigan Schulte, Anderson, et al Harrang, Long et al" Jordan Schrader Partner 165.00 200.00 280.00 175.00 Sr. Associate 145.00 175.00 N/A N/A Associate 115.00 160.00 195.00 175.00 Law Clerk/Legal Asst. 70.00 75.00 90.00 130.00 Secretarial 50.00 N/A 55.00 35.00 FY 04-05 Actual Legal Hours Hours Partner 650 $107,250 $130,000 $273,000 $170,625 Sr. Associate 325 47,125 56,875 0 0 Associate 0 0 0 0 0 Law Clerk/Legal Asst. 25 1,750 5,475 2,250 3,250 Secretarial 48 2,400 0 2,640 1,680 1,048 $158,525 $192,350 $277,890 $175,555 Tor Harrang, Long et al averaged the rates based on range of hourly rates provided 2005 GENERAL LEGAL SERVICES INTERVIEWS NOVEMBER 151, 2005 TIGARD TOWN HALL Interview Format ➢ Five minutes will be allocated to the Proposer for providing a general overview of the Firm. ➢ Ten minutes will be allocated to Proposer for responding to the questions detailed below. ➢ Five minutes will then be allocated for follow-up questions from the interview panel. The interview panel consists of the Mayor, City Council members, City Manager, and four members of the City's Executive Staff. 1) Given the nature and sometimes quick escalation of issues that municipalities deal with, how will your firm assure Tigard that a reasonable response period will be provided? This includes the ability to respond quickly, provide the depth of experience necessary for the nature of the issue, and provide immediate follow-up assistance as needed by the City. 2) Since the City of Tigard believes an important role of Legal Counsel is to provide advice to lessen the likelihood of litigation against the City, what would you implement to ensure that this occurs? 3) The City often uses other special counsel (i.e. labor law, bond counsel, suits covered 'by insurance, etc.). To assure proper management and coordination of legal issues between all parties, explain what role your firm would take in these efforts. 4) Given the list of services required by the City as detailed in Section 4.A. of the RFP documents, what services would be most challenging for your firm to provide? What would you do to develop strength in those service areas? 2005 GENERAL LEGAL SERVICES QUESTIONS FOR WRITTEN RESPONSE Proposer is to provide written responses to the following two questions. Ten copies are required and must be submitted to either Joe Barrett or Tom Imdieke prior to the Firm's scheduled interview. 1) Provide a list of: a. Any and all complaints filed against you with the Oregon State Bar (dates involved and a narrative of the outcome including correspondence to and from the State Bar and to and from the complainant); b. Any potential conflicts as identified in Section 9 of the contract that was included in the RFP document. Describe your plan to eliminate any such conflicts with clients you represent on matters contrary to City interests. c. All felony convictions and misdemeanors involving morale turpitude by any attorney that may be providing services to Tigard. 2) Provide a writing sample from your firm's lead attorney (up to three) being assigned to the City's account that addresses a municipal issue. This sample should demonstrate the attorney's ability to communicate clearly and effectively in writing. [Cathy Wheatley 2005 General Attorney Interview Schedule,doc i~PageW,1 I E 2005 Attorney Interviews. General Attorney Services Only Council/Staff Interviews Tuesday, November 15, 2005 - Prior to Council Workshop Time Firm 5:00 PM Ramis Crew Corrigan LLP 5:30 PM Schulte, Anderson, Downes, Aronson & Bittner P.C. 6:00 PM Harran , Long, Gary, Rudnick P.C. C. i a i E council mail councilman Update on General Legal Services Interviews Pagel From: Tom Imdieke To: Craig Dirksen; Craig Prosser; Dennis Koellermeier; Gus Duenas; Loreen Mills; Nick wilson; Sally Harding; Sydney sherwood; Tom Coffee; Tom Woodruff Date: Mon, Nov 14, 2005 10:51 AM Subject: Update on General Legal Services Interviews One of the frims, Jordan Schrader P.C. that initially proposed has elected to withdraw their firm from consideration. We will still plan on beginning the interview process at 5:00 p.m. tomorrow evening. This will at least allow 30 minutes for each interview, a 10 minute break between each one, and permit the panel for some discussion at the end of the interview process. Joe and I will be bring evaluation forms for you to use. We will be assuming that a final decision would not be made Tuesday evening, but give you more time for review and consideration and then get back together at a later date for a final discussion and decision. Sandy, the firm is still interested in interviewing for labor counsel, however. Tom Imdieke Financial Operations Manager 503-639-4171, Ext. 2488 tomi@tigard-or.gov The City of Tigard is converting to a new domain name shortly. My new e-mail address will be tomi@tigard-or.gov. The City's new web address will be www.tigard-or.gov. Please change your e-mail address book to reflect these new addresses. CC: Joseph Barrett; Sandy Zodrow Date: September 07, 2005 CITY OF TIGARD, r,.... OREGON REQUEST FOR PROPOSAL Attorney Services - General & Labor DATE DUE: Wednesday, October 26, 2005 TIME DUE: 2:00 PM Envelope(s) shall be sealed and marked with Project Title. Respondents must submit one (1) original and three (3) complete copies of their RFP response. Direct RFP Questions To: Joe Barrett, Buyer City of Tigard Phone: (503) 639-4171, Ext. 2477 Fax: (503) 639-1471 Email: joseph(&ci.tigard.or.us SUBMIT PROPOSAL TO: Joe Barrett, Buyer City of Tigard - Information Desk 13125 SW Hall Blvd. Tigard, Oregon 97223 2005 RFP - General & Labor Attorney Page 1 of 30 l PUBLIC NOTICE Request for Proposal Attorney Services - General & Labor The City of Tigard is currently seeking proposals from attorney firms qualified to provide general and/or labor attorney services to the City. Firms are invited to submit a proposal outlining their experience and qualifications in performing work directly related to the services required as detailed I n the Request for Proposal packet. Sealed proposals will be received until Wednesday, October 26, 2005 to the attention of Joe Barrett at the Tigard City Hall Information Desk located at 13125 SW Hall Blvd., Tigard, Oregon 97223. There will be no formal opening of the proposals. Facsimile and electronic proposals will not be accepted. Proposals will not be accepted after the stated opening date and time. Late proposals will be returned to the vendor unopened. Proposal packets may be downloaded from www.ci.tigard.or.us or may be obtained at the Tigard City Hall Information Desk at 13125 SW Hall Blvd., Tigard, Oregon 97223 or by calling Joe Barrett, Buyer at (503) 718-2477. Proposers are required to certify non-discrimination in employment practices, and identify resident status as defined in ORS 279.029. Pre-qualification of proposer is not required. All proposers are required to comply with the provisions of Oregon Revised Statutes and Local Contract Review Board (LCRB) Policy. The City of Tigard reserves the right to: 1. Reject any or all proposal not in compliance with public bidding procedures; 2. Postpone award of the contract for a period not to exceed sixty (60) days from date of proposal opening; 3. Waive informalities in the proposals; and 4. Select the proposal which appears to be in the best interest of the City. PUBLISHED: The Oregonian DATE: October 3, 2005 PUBLISHED: Oregon State Bar Publication DATE: October Edition 2005 RFP - General & Labor Attorney Page 2 of 30 TABLE OF CONTENTS TITLE PAGE Title Page I Public Notice 2 Table of Contents 3 SECTIONS Section 1 Introduction 4 Section 2 Proposer's Special Instructions 4 Section 3 Background 7 Section 4 Scope of Services 7 Section 5 Proposal Content and Format 10 Section 6 Proposal Evaluation Procedures 13 Section 7 Proposal Certification 16 Section 8 Signature Page 17 ATTACHMENTS Attachment A Acknowledgement of Addendum 18 Attachment B Statement of Proposal 19 Attachment C City of Tigard Attorney Services Agreement 20 2005 RFP - General & Labor Attorney Page 3 of 30 SECTION 1 INTRODUCTION The City of Tigard is seeking proposals from attorney firms qualified to provide general and/or labor attorney services to the City. Firms are invited to submit a proposal outlining their experience and qualifications in performing work directly related to the services required as detailed in the Request for Proposal packet. SECTION 2 PROPOSER'S SPECIAL INSTRUCTIONS A. PROPOSED TIMELINES Monday, October 3, 2005 Advertisement and Release of Proposals Wednesday, October 26, 2005 - 2:00 PM Deadline for Submission of Proposals November 9-18, 2005 Presentation/Interviews (Tentative) December 13, 2005 Local Contract Review Board Award January 1, 2006 Commencement of Services NOTE. The City reserves the right to modify this schedule at the City's discretion. Proper notification of changes in the will be made to all interested parties. B. GENERAL By submitting a proposal, the Proposer certifies that the Proposal has been arrived at independently and has been submitted without any collusion designed to limit competition. C. PROPOSAL SUBMITTAL The Proposal and all amendments must be signed and submitted no later than 2:00 PM on Wednesday, October 26, 2005 to the address below. Each proposal must be submitted in a sealed envelope and designated with proposal title. To assure that your proposal receives priority treatment, please mark as follows. Attorney Services - General & Labor October 26, 2005 - 2:00 PM City of Tigard - City Hall Information Desk Attention: Joe Barrett, Buyer 13125 SW Hall Blvd. Tigard, Oregon 97223 Proposer shall put their name and address on the outside of the envelope. It is the Proposer's responsibility to ensure that proposals are received prior to the stated closing time. The City shall not be responsible for the proper identification and handling of any proposals submitted incorrectly. Late proposals, late modification or late withdrawals shall not be considered accepted after the stated bid opening date and time and shall be returned unopened. Facsimile and electronic (email) proposals will not be accepted. 2005 RFP - General & Labor Attorney Page 4 of 30 D. PROTEST OF SCOPE OF WORK OR TERMS A proposer who believes any details in the scope of work or terms detailed in the proposal packet and sample contract are unnecessarily restrictive or limit competition may submit a protest in writing, to the Purchasing Office. A protest may be submitted via facsimile. Any such protest shall include the reasons for the protest and shall detail any proposed changes to the scope of work or terms. The Purchasing Office shall respond to any protest and, if necessary, shall issue any appropriate revisions, substitutions, or clarification via addenda to all interested Proposers. To be considered, protests must be received at least five- (5) days before the proposal closing date. The City shall not consider any protest against award due to the content of proposal scope of work or contract terms submitted after the established protest deadline. All protests should be directed to Joe Barrett, Buyer and be marked as follows: RFP Specification/Term Protest RFP Name and Closing Date City of Tigard Joe Barrett, Buyer 13125 SW Hall Blvd. Tigard, Oregon 97223 If a protest is received in accordance with section above, the proposal opening date may be extended if necessary to allow consideration of the protest and issuance of any necessary addenda to the proposal documents. E. PROPOSAL SUBMISSION AND SIGNING All requested forms and attachments (Signature Page, Acknowledgment Addendum, Statement of Proposal, etc.) must be submitted with the Proposal and in the required format. The submission and signing of a proposal shall indicate the intention of the firm to adhere to the provisions described in this RFP. F. COST OF PREPARING A PROPOSAL The RFP does not commit the City to paying any costs incurred by Proposer in the submission or presentation of a proposal, or in making the necessary studies for the preparation thereof. G. INTERPRETATIONS AND ADDENDA All questions regarding this project proposal shall be directed to Joe Barrett, Buyer. If necessary, interpretations or clarifications in response to such questions will be made by issuance of an "Addendum" to all prospective Proposers within a reasonable time prior to proposal closing, but in no case less than 72 hours before the proposal closing. If an addendum is necessary after that time, the City, at its discretion, can extend the closing date. Any Addendum issued, as a result of any change in the RFP, must be acknowledged by submitting the "Acknowledgment of Addendum" with proposal. Only questions answered 2005 RFP - General & Labor Attorney Page 5 of 30 by formal written addenda will be binding. Oral and other interpretations or clarifications will be without legal effect. H. BUSINESS TAX/FEDERAL TAX ID REQUIRED The Awarded Firm(s) shall be required to obtain a current City of Tigard Business Tax receipt. Chapter 5.4 of the Tigard Municipal Code states any business doing business in the City of Tigard shall pay a City of Tigard Business Tax Fee. No contracts shall be signed prior to a firm obtaining of the City of Tigard Business Tax receipt. Furthermore, upon contract award, Awarded Firm(s) shall complete a W-9 form for the City. 1. CONTRACT ADMINISTRATOR The Contract Administrator will be Liz Newton, Assistant to the City Manager, who can be reached by phone at (503) 639-4171, ext. 2414 or by email at liz(ci,)ci.tigard.or.us. J. PROPOSAL VALIDITY PERIOD Each proposal shall be irrevocable for a period of sixty (60) days from the Proposal Opening Date. K. FORM OF CONTRACT i A copy of the City's standard attorney services agreement, which the City expects the successful firm or individual to execute, is included as "Attachment C". The contract will incorporate the terms and conditions from this RFP document and the successful proposer's response documents. Firms taking exception to any of the contract terms shall submit a protest or request for change in accordance with Section 2(D) "Protest of Scope of Work or Terms" or their exceptions will be deemed waived. L. TERM OF CONTRACT The term of the contract shall be a period of two (2) years with the option to renew for three (3) additional one (1) year periods. The total term of the contract cannot exceed five (5) years. M. TERMINATION The contract may be terminated by mutual consent of both parties or by the City at its discretion with a 30 days' written notice. If the agreement is so terminated, Contractor shall be paid in accordance with the terms of the agreement. N. NON-COLLUSION Proposer certifies that this proposal had been arrived at independently and has been submitted without collusion designed to limit independent bidding or competition. 0. PUBLIC RECORD All bid material submitted by bidder shall become the property of the City and is public record unless otherwise specified. A bid that contains any information that is considered trade secret under ORS 192.501(2) should be segregated and clearly identified as such. This information will be kept confidential and shall not be disclosed except in accordance 2005 RFP - General & Labor Attorney Page 6 of 30 with the Oregon. Public Records Law, ORS 192. The above restrictions may not include cost or price information, which must be open to the public. SECTION 3 BACKGROUND Tigard was incorporated in 1961 and today, is a friendly, livable and affordable community located just minutes southwest of Portland in Washington County. The 11th largest city in the State of Oregon, approximately 45,500 residents make their home in this centrally located community in Washington County, 10 miles southwest of downtown Portland, just minutes from I-5, Highway 217 and Highway 99W. The City is governed by a City Council with the City Manager responsible for the daily administration of all City functions. This includes general management, personnel administration, labor relations, risk and informational technology, volunteer coordination, and community relations. As a community, Tigard strives to manage this growth and blend the amenities of a modern city with the friendliness and community spirit of a small town. The City's "open door" policy encourages citizens to attend weekly city council meetings and observe the four-member council and mayor make important decisions. Tigard is a community building for today and its future. Local government and school leaders, citizen groups, businesses and individuals work hard to build upon Tigard's significant community attributes. The City promotes citizen participation through Citizen Involvement Teams that represent the community's four geographic areas. The teams allow citizens to become part of the decision- making process. The City is currently seeking to retain the services of one or more firms to provide both general attorney services and labor attorney services. The City is reserving the right to offer both services to one firm or offer general counsel services to one firm and labor counsel services separately to another firm. The firm or firms that are awarded a contract under this RFP will work closely with City staff, Mayor, and City Councilors, on various City issues including, but not limited to: providing legal aspects of general administration of City business, including preparing and providing legal opinions, assist with establishment of correct procedures, drafting and reviewing ordinances, resolutions, contracts, orders, agreements, and other legal documents; provide necessary collective bargaining assistance to the City as needed; and any other aspects of legal needs as detailed in this RFP packet. SECTION 4 SCOPE OF SERVICES Tigard is seeking both general attorney services and labor attorney services. The City is soliciting these services together. while reserving the right to either award both services to one firm or to two different firms. Firms submitting proposals may submit on both services or on each individual service. There will be no preference given by the City with regards to which service, or combination of services, for which a firm submits a proposal response. Firms will be scored individually for both services if submitting the combination option. The Scope of Services for each requested service is as follows: 2005 RFP - General & Labor Attorney Page 7 of 30 A. GENERAL ATTORNEY SERVICES Awarded Counsel will be responsible for City legal representation as authorized by the City Council. Authorization to perform specific tasks will come from the Mayor, City Council, City Manager or other persons directly authorized by the Mayor, City Council or the City Manager. Awarded Counsel shall appoint an attorney to act as lead attorney. The lead attorney could possibly be required to attend all City Council meetings depending on the content or actions taking place. In the event that the lead attorney is not available for a meeting, Awarded Counsel shall further designate a backup lead attorney to attend the meetings. Legal Counsel will advise the City Manager with appropriate notice if neither the lead attorney nor the backup lead attorney is available for a City Council meeting. 1. Unless otherwise specified by the Mayor, City Council, the Awarded Counsel will be responsible for: a. Legal aspects of general administration of City business, including preparing and providing legal opinions, assist with establishment of correct procedures, drafting and reviewing ordinances, resolutions, contracts, orders, agreements, and other legal documents, and related tasks needed to support City personnel, Mayor, Council, and City Manager. b. Providing sound legal direction on all forms of City business, including, but not limited to, the following: 1) Real Property Transactions; 2) Public Financing; 3) Land Use Law; 4) Local Budget Law; 5) Codification of Ordinances; 6) Election Laws; 7) Open Meeting Laws; 8) Public Record Laws; 9) Public Contracting; 10) Franchise Law (i.e. Solid Waste); . 11) Annexation Law; 12) Public/Private Partnerships; 13) Oregon Revised Statutes; 14) Public Meeting Law; 15) General Business Law; 16) Employment Law; and 17) Labor Relations. C. Training of nonlegal personnel in the performance of legally related tasks in order to reduce legal expenses. d. Regular attendance at City Council meetings and attendance at other municipal meetings on request. 2005 RFP - General & Labor Attorney Page 8 of 30 e. Represent the City during litigation or Municipal Court prosecution. f. Review City Council packets and provide advice prior to meetings. Review Planning Commission packets when requested and provide timely advice prior to meetings. g. Notify City of changes in state and federal laws that require changes in city codes, ordinances, regulations or policy. Work with city staff to provide appropriate amendments to city codes, ordinance, regulations or policies to remain in compliance with applicable laws. 2. Legal activities such as complex litigation and special project assignments which fall outside of the above categories, and which would include costs exceeding the projections of the City's budget for legal services, must be authorized by the City Council. Awarded Counsel and the City Manager will regularly review the level of expenditures on legal services and will prioritize projects in order to stay within the budgeted amounts. 3. The Awarded Counsel will coordinate with the City Manager and department heads, but within the chain of command shall report directly to the City Council. In this regard, in the event a conflict develops between the Council and City Manager, the Awarded Counsel will represent the Council but will notify the City Manager at first knowledge of a conflict. 4. The City reserves the right in appropriate situations to retain separate outside counsel. It is recognized that the City presently utilizes other law firms to provide representation in personnel issues, labor relations, and water-related matters (i.e., water rights, water supply). B. LABOR ATTORNEY SERVICES Awarded Counsel shall provide employment and labor relations and personnel related attorney services as required by the City. Services shall include, but shall not be limited to, the following: 1. Contract negotiations for the following City collective bargaining units: a. SEIU OPEU Local 503; and b. TPOA - Police Officers 2. Consulting services, including legal advise on the following: a. Representation at appropriate meetings/hearings; b. Labor contract interpretation and administration; C. Mediation; d. Fact-finding; e. Arbitration; E Dispute resolution; g. Assistance in the selection of arbitrators; 2005 RFP - General & Labor Attorney Page 9 of 30 h. Unfair labor practices; i. Staff and/or Council strategy planning and progress meetings; j. Representation; k. Unit clarification and de-authorization matters; 1. Impact bargaining; M. Communication and correspondence activities between the City and officials of the aforementioned bargaining units; and n. Other employment related services as required. 3. Staff members of bargaining teams will provide necessary assistance to the Firm including, but not limited to, information regarding operational procedures, department/division responsibilities and goals, necessary contract alteration, costing information, membership profile data, benefit and salary data, and other assistance deemed appropriate to an effective bargaining process. 4. Awarded Counsel shall work directly with the Human Resources Department in the performance of all contractual duties. SECTION 5 PROPOSAL CONTENT AND FORMAT A. FORMAT To provide a degree of consistency in review of the written proposals, firms are requested to prepare their proposals in the standard format specified below. 1. Title Page Proposer should identify the RFP subject, name and title of contact person, address, telephone number, fax number, email address and date of submission. 2. Transmittal Letter The transmittal letter should be not more than two (2) pages long and should include as a minimum the following: a. A brief statement of the Proposer's understanding of the project and services to be performed; and b. A positive commitment to perform the services within the time period specified, starting and completing the project within the deadlines stated in this RFP; and the names of persons authorized to represent the Proposer, their title, address and telephone number (if different from the individual who signs the transmittal letter). 3. Table of Contents The table of contents should include a clear and complete identification by section and page number of the materials submitted. 2005 RFP - General & Labor Attorney Page 10 of 30 4. Firm Qualifications & Experience a. Background of the firm. Provide a detailed description of the law firm, including historical background, number and location of firm offices, number of attorneys, and major areas of practice. b. Qualifications of the firm in performing this type of work. This should include examples of related experience and references for similar studies and projects. General Attorney firms should detail experience in, but not limited to, the following: 1) Real Property Transactions; 2) Public Financing; 3) Land Use Law; 4) Local Budget Law; 5) Codification of Ordinances; 6) Election Laws; 7) Open Meeting Laws; 8) Public Record Laws; 9) Public Contracting; 10) Franchise Law (i.e. Solid Waste); 11) Annexation Law; 12) Public/Private Partnerships; 13) Oregon Revised Statutes; 14) Public Meeting Law; 15) General Business Law; 16) Employment Law; and 17) Labor Relations. Labor Attorney firms should detail experience in, but not limited to, the following: a. Labor contract interpretation and administration; b. Mediation; C. Fact-finding; d. Arbitration; e. Dispute resolution; L Assistance in the selection of arbitrators; g. Unfair labor practices; h. Staff and/or Council strategy planning; i. Representation; j. Unit clarification and de-authorization matters; k. Impact bargaining; 1. Communication and correspondence activity between the City and officials regarding bargaining units; and M. Other employment related services as detailed in this RFP packet. 2005 RFP - General & Labor Attorney Page 11 of 30 5. Team Member Oualifications & Experience Project team and the team member's individual qualifications. Provide details in regards to the area or areas of practice in which each Team Member is qualified and the jurisdictions in which they practice and are licensed. Provide a detailed resume and biographical sketch describing the education, and relevant experience of each Team Member. 6. Project Approach a. Submit a work plan to accomplish the scope of work defined in the section entitled "Scope and Schedule of Work" in this RFP. The work plan should include time estimates (in hours) for each significant segment of the project and the staff level to be assigned. Where possible, individual staff members should be named and their titles provided. The planned use of specialists (if any) should be described. b. Indicate the extent to which City personnel would be expected to contribute to the project work effort. 7. Compensation Proposers shall detail the hourly rates to be charged for partners, senior associates, associates, paralegals, legal assistants, clerical, and any other support staff. In addition, any potential additional cost, i.e. travel, per diem, etc., must be detailed in the proposal response. 8. Presentation/Interview This will provide an opportunity to clarify or elaborate on the firm's proposal, but will not, in any way, provide an opportunity to change any fee amount originally proposed. The City will schedule the time and location of these presentations and notify the selected firms. Note: It is likely that not all firms submitting a response will be selected for the presentation/interview phase. B. ADDITIONAL SERVICES Provide a brief description of any other services that your firm could provide the City and an approximation of the hourly charge for each service of this type. Such services would be contracted for on an "as needed" basis, to be provided and billed for separately. C. ADDITIONAL INFORMATION Please provide any other information you feel would help the Selection Committee evaluate your firm for this project. D. REFERENCES Please list three (3) references including the following information for each reference: 1. Company Name; 2. Contact Individual; 3. Title; 4. Phone Number; and 5. Email Address. 2005 RFP - General & Labor Attorney Page 12 of 30 E. DISPUTES Should any doubt or difference of opinion arise between the City and a Proposer as to the items to, be furnished hereunder or the interpretation of the provisions of this RFP, the decision of the City shall be final and binding upon all parties. F. CITY PERSONNEL No Officer, agent, consultant or employee of the City shall be permitted any interest in the contract. SECTION 6 PROPOSAL EVALUATION PROCEDURES A. SELECTION AND EVALUATION PROCESS A Selection Committee assembled by the City will review the written proposals. Proposals will be evaluated to. determine which ones best meet the needs of the City. After meeting the mandatory requirements, the proposals will be evaluated on both their technical and fee aspects. The City is seeking both general attorney services and labor attorney services. The City is soliciting these services together while reserving the right to either award both services to one firm or to two different firms. Firms submitting proposals may submit on both services or on each individual service. There will be no preference given by the City with regards to which service, or combination of services, for which a firm submits a proposal response. Firms will be scored individually for both services if submitting the combination option. Proposals will be evaluated in accordance with the following: 1. Completed Proposal submitted on time Pass/Fail 2. An original plus three (3) copies of the complete proposal Pass/Fail 3. Transmittal letter Pass/Fail . 4. Firm qualifications & experience 60 points The evaluation of the firm's qualifications as listed under Section 5 of this RFP Packet. 5. Proiect Team member qualifications & experience 40 points The evaluation of the project team members' qualifications based upon the information listed in the statement of team member qualifications detailed in Section 5. 6. Proiect understanding and approach 35 points An evaluation of the proposer's work plan and general understanding of the project as detailed in Section 5. 2005 RFP - General & Labor Attorney Page 13 of 30 7. Compensation 45 points The evaluation of the proposed compensation structure will consider the overall cost (fees plus out- of-pocket expenses), and the proposed hours and City assistance requested. All of these factors are important in evaluating.the reasonableness of the fee and the Proposer's. understanding of the requirements. 8. Presentation/Interview 20 points An evaluation of the proposer's presentation/interview as detailed in Section 5. Note: It is likely that not all firms submitting a response will .be selected for the presentation/interview phase. Total Evaluation Points 200 points B. INVESTIGATION OF REFERENCES The City reserves, the right to investigate references and the past performance of any proposer with respect to its successful performance of similar projects, compliance with specifications and contractual obligations, its completion or delivery of a project on schedule and its lawful payment of employees and workers. C. CLARIFICATION OF PROPOSALS The City reserves the right to obtain clarification of any point in a firm's proposal or to obtain additional information necessary to properly evaluate or particular proposal. Failure of a Proposer to respond to such a request for additional information or clarification could result in rejection of the firm's proposal. D. RESERVATION IN EVALUATION The Selection Committee reserves the right to either: (a) request "Best and Final Offers" from the finalist firms and award to the lowest priced or (b) to reassess the proposals and award to the vendor determined to best meet the overall needs of the City. E. INTENT OF AWARD Upon review of the proposals submitted, the City may negotiate a scope of work and an attorney services agreement with one or more firms, or may select one or more firms for further consideration. F. PROTEST OF AWARD In accordance with the City's 'Model Public Contracting Rule 30.104, any adversely affected Proposer has fourteen (14) calendar days from the date of the written notice of award to file a written protest. 2005 RFP - General & Labor Attorney Page 14 of 30 G. PROPOSAL REJECTION The City reserves the right to: 1. Reject any or all proposals not in compliance with all public procedures and requirements; 2. Reject any proposal not meeting the specifications set forth herein; 3. Waive any or all irregularities in proposals submitted; 4. In the event two or more proposals shall be for the same amount for the same work, the City shall follow the provisions of LCRB 30.095 and Section 137-095 of the Oregon Attorney General's Model Public Contract Manual; 5. Reject all proposals; 6. Award any or all parts of any proposal; and 7. Request references and other data to determine, responsiveness. 2005 RFP - General & Labor Attorney Page 15 of 30 SECTION 7 PROPOSAL CERTIFICATIONS Non-discrimination Clause The Contractor agrees not to discriminate against any client, employee or applicant for employment or for services, because of race, color, religion, sex, national origin, handicap or age with regard to, but not limited to, the following: employment upgrading, demotion or transfer; recruitment or recruitment advertising; layoffs or termination; rates of pay or other forms of compensation; selection for training; rendition of services. It is further understood that any contractor who is in violation of this clause shall be barred from receiving awards of any purchase order from the City, unless a satisfactory showing is made that discriminatory practices have terminated and that a recurrence of such acts is unlikely. Agreed by: Firm Name: Address: Resident Certificate Please Check One: ❑ Resident Vendor: Vendor has paid unemployment taxes and income taxes in this state during the last twelve calendar months immediately preceding the submission of this proposal. Or ❑ Non-resident Vendor: Vendor does not qualify under requirement stated above. (Please specify your state of residence: ) i Officer's signature: Type or print officer's name: 2005 RFP - General & Labor Attorney Page 16 of 30 SECTION 8 SIGNATURE PAGE The undersigned proposes to perform all work as listed in the Specification section, for the price(s) stated; and that all articles supplied under any resultant contract will conform to the specifications herein, The undersigned agrees to be bound by all applicable laws and regulations, the accompanying specifications and by City policies and regulations. The undersigned, by submitting a proposal, represents that: A) The Proposer has read and understands the specifications. B) Failure to comply with the specifications or any terms of the Request for Proposal may disqualify the Proposer as being non-responsive. The undersigned certifies that the proposal has been arrived at independently and has been submitted without any collusion designed to limit competition. The undersigned certifies that all addenda to the specifications has been received and duly considered and that all costs associated with all addenda have been included in this proposal: Addenda: No. through No. inclusive. We therefore offer and make this proposal to furnish services at the price(s) indicated herein in fulfillment of the attached requirements and specifications of the City. Name of firm: Address: Telephone Number: Fax Number: By: Date: (Signature of Authorized Official. If partnership, signature of one partner.) Typed Name/Title: If corporation, attest: (Corporate officer) ❑ Corporation ❑ Partnership ❑ Individual Federal Tax Identification Number (TIN): 2005 RFP - General & Labor Attorney Page 17 of 30 ATTACHMENT A ACKNOWLEDGMENT OF ADDENDA City of Tigard, Oregon Request for Proposal Attorney Services - General & Labor Close: Wednesday, October 26, 2005 I/WE HAVE RECEIVED THE FOLLOWING ADDENDA: If none received, write "None Received" 1. 3. 2. 4. Date Signature of Proposer Title Corporate Name 2005 RFP - General & Labor Attorney Page 18 of 30 ATTACHMENT B STATEMENT OF PROPOSAL Name of Consultant: Mailing Address: Contact Person: Telephone: Fax: Email: accepts all the terms and conditions contained in the City of Tigard Request for Proposal for Attorney Services - General & Labor and the attached agreement for attorney services (Attachment C): Signature of authorized representative Date Type or print name of authorized representative Telephone Number J Type or print name of person(s) authorized to negotiate contracts Telephone Number REFERENCES Reference #1 Telephone Number Project Title Contact Individual Reference 0 Telephone Number Project Title Contact Individual Reference #3 Telephone Number Project Title Contact Individual 2005 RFP - General & Labor Attorney Page 19 of 30 ATTACHMENT C CITY OF TIGARD, OREGON ATTORNEY SERVICES CONTRACT This agreement made and entered into this (Day) day of (Month), (Year) by and between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and (Awarded Firm) hereinafter called Legal Counsel. WITNESSETH WHEREAS, City has need for the services of an attorney firm with the particular training, ability, knowledge, and experience possessed by Legal Counsel; and WHEREAS, City has determined that (Awarded Firm) is qualified and capable of performing the professional services as City does hereinafter require under those terms and conditions set forth; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. LEGAL SERVICES TO BE PROVIDED Legal Counsel agrees to complete work, which is detailed in Exhibit "A" and by this reference made a part hereof. 2. EFFECTIVE DATE AND DURATION This Agreement shall become effective beginning (Effective Date), and shall expire, unless otherwise terminated or extended, on (Expiration Date - 2 Years from Effective Date). This agreement may be extended at the agreement of both parties for three (3) additional one (1) year terms. In accordance with the City's Public Contracting Rules the total duration of this agreement may not exceed five (5) years. 3. COMPENSATION A. City agrees to pay Legal Counsel in accordance with this section for performance of services described herein. Payment shall be based upon a detailed monthly billing showing work performed and identifying specific legal matters worked on. B. Hourly Rates The hourly rates shall be as follows: Partners Sr. Associates Associates Paralegals Legal Assistants Clerical 2005 RFP - General & Labor Attorney Page 20 of 30 The parties may by mutual agreement adjust these rates each contract year. Legal Counsel shall submit any proposed new rate structure in writing to the City for its review not less than 60 days prior to the new contract year. C. The direct cost for such items as long distance charges, messenger services, printing, mileage, copy charges ((cents) cents per page) and the like will be billed to City, with no markup or overhead charge added, except that mileage charges for trips between Legal Counsel's office and City offices shall not be charged to the City. D. Payment by City shall release City from any further obligation for payment to Legal Counsel, for services performed or expenses incurred as of the date of the statement of services. Payment shall not be considered acceptance or approval of any work or waiver of any defects therein. E. Payment will be made in installments based on Legal Counsel's invoice, subject to the approval of the City Manager or designee. Payment shall be made only for work actually completed as of the date of the invoice. F. The City certifies that sufficient funds are available and authorized for expenditure to finance costs of this contract. 4. OWNERSHIP OF WORK PRODUCT City shall be the owner of and shall be entitled to possession of any and all work products of Legal Counsel which result from this Agreement, including any computations, plans, correspondence or pertinent data and information gathered by or computed by Legal Counsel prior to termination of this Agreement by Legal Counsel or upon completion of the work pursuant to this Agreement. 5. ASSIGNMENT/DELEGATION Neither party, shall assign, sublet or transfer any interest in or duty under this Agreement without the written consent of the other and not assignment shall be of any force or effect whatsoever unless and until the other party has so consented. If City agrees to assignment of tasks to a subcontractor, Legal Counsel shall be fully responsible for the acts or omissions of any subcontractors and of all persons employed by them, and neither the approval by City of any subcontractor nor anything contained herein shall be deemed to create any contractual relation between the subcontractor and City. 6. STATUS OF LEGAL COUNSEL AS INDEPENDENT CONTRACTOR Legal Counsel certifies that: A. Legal Counsel acknowledges that for all purposes related to this Agreement, Legal Counsel is and shall be deemed to be an independent contractor as defined by ORS 670.700 and not an employee of City, shall not be entitled to benefits of any kind to which an employee of City is entitled and shall be solely responsible for all payments and taxes required by law. Furthermore, in the event that Legal 2005 RFP - General & Labor Attorney Page 21 of 30 Counsel is found by a court of law or any administrative agency to be an employee of City for any purpose, City shall be entitled to offset compensation due, or to demand repayment of any amounts paid to Legal Counsel under the terms of this Agreement, to the full extent of any benefits or other remuneration Legal Counsel receives (from City or third party) as a result of said finding and to the full extent of any payments that City is required or make (to Legal Counsel or to a third party) as a result of said finding. B. The undersigned Legal Counsel hereby represents that no employee of the City, or any partnership or corporation in which a City employee has an interest, has or will receive any remuneration of any description from Legal Counsel, either directly or indirectly, in connection with the letting or performance of this Agreement, except as specifically declared in writing. C. Legal Counsel certifies that it currently has a City business license or will obtain one prior to delivering services under this Agreement: D. Legal Counsel is not an officer, employee, or agent of the City as those terms are used in ORS 30.265. 7. INDEMNIFICATION City has relied upon the professional ability and training of Legal Counsel as a material inducement to enter into this Agreement. Legal Counsel warrants that all its work will be performed in accordance with generally accepted professional practices and standards as well as the requirements of applicable federal, state and local laws, it being understood that acceptance of Legal Counsel's work by City shall not operate as a waiver or release. Legal Counsel agrees to indemnify and defend the City, its officers, agents and employees and hold them harmless from any and all liability, causes of action, claims, losses, damages, judgments or other costs or expenses including attorney's fees and witness costs and (at both trial and appeal level, whether or not a trial or appeal ever takes place) that may be asserted by any person or entity which in any way arise from, during or in connection with the performance of the work described in this contract, except liability arising out of the sole negligence of the City and its employees. Such indemnification shall also cover claims brought against the City under state or federal worker's compensation laws. If any aspect of this indemnity shall be found to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this indemnification. 8. INSURANCE A. Legal Counsel, and its subcontractors, shall maintain insurance acceptable to City in full force and effect throughout the term of this contract. Such insurance shall cover all risks arising directly or indirectly out of Legal Counsel's activities or work hereunder, including the operations of its subcontractors of any tier. 2005 RFP - General & Labor Attorney Page 22 of 30 B. The policy or policies of insurance maintained by Legal Counsel and its subcontractors shall provide at least the following limits and coverages: 1. Commercial General Liability Insurance Legal Counsel shall obtain, at Legal Counsel's expense, and keep in effect during the term of this contract, Comprehensive General Liability Insurance covering Bodily Injury and Property Damage on an "occurrence" form (1996 ISO or equivalent). This coverage shall include Contractual Liability, insurance for the indemnity provided under this contract. The following insurance will be carried: Coverage Limit General Aggregate $2,000,000 Products-Completed Operations Aggregate $1,000,000 Each Occurrence $1,000,000 Personal & Advertising Injury $1,000,000 Fire Damage (Any one fire) $50,000 Medical Expense (Any one person) $5,000 2. Legal Errors & Omissions/Lawyers Professional Liability Insurance Legal Counsel shall obtain, at Legal Counsel's expense, and keep in effect during the term of this contract, Legal Errors & Omissions/Lawyer's Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts. This coverage shall include Annual Aggregate & Per Occurrence limits of $2,000,000 per attorney. 3. Commercial Automobile Insurance Legal Counsel shall obtain, at Legal Counsel's expense, and keep in effect during the term of this contract, Commercial Automobile Liability coverage including coverage for all owned, hired, and non-owned vehicles. The Combined Single Limit per occurrence shall not be less than $1,000,000. 4. Workers' Compensation Insurance Legal Counsel its subcontractors, if any, and all employers providing work, labor or materials under this contract are subject employers under the Oregon Workers' Compensation Law and shall comply with ORS 656.017, which requires them to provide workers' compensation coverage that satisfies Oregon law for all their subject workers. Legal Counsel or subcontractors who perform work without the assistance or labor of any employee need not obtain such coverage. This shall include Employer's Liability Insurance with coverage limits of not less than $100,000 each accident. 2005 RFP - General & Labor Attorney Page 23 of 30 5. Additional Insured Provision The Commercial General Liability Insurance and Commercial Automobile Insurance policies and other policies the City deems necessary shall include the City, its officers, directors, and employees as additional insureds with respect to this contract. 6. Extended Reporting Coverage If any liability insurance required by this contract is arranged on a "claims made" basis, Extended Reporting coverage will be required at the completion of this contract to a duration of 24 months or the maximum . time period the Legal Counsel's insurer will provide if less than 24 months. Legal Counsel will be responsible for furnishing certification of Extended Reporting coverage for 24 months following contract completion. Continuous "claims made" coverage will be acceptable in lieu of Extended Reporting coverage,. provided its retroactive date is on or before the effective date of this contract. 7. Notice of Cancellation There shall be no cancellation, material change, exhaustion of aggregate limits or intent not to renew insurance coverage without 30 days' written notice to the City. Any failure to comply with this provision will not affect the insurance coverage provided to the City. A 30 days' notice of cancellation provision shall be physically endorsed on the policy. 8. Insurance Carrier Rating Coverages provided by the Legal Counsel must be underwritten by an insurance company deemed acceptable by the City. The City reserves the right to reject all or any insurance carrier(s) with an unacceptable financial rating. 9. Certificates of Insurance As evidence of the insurance coverage required by this contract, the Legal Counsel shall furnish Certificates of Insurance to the City. No contract shall be effected until the required certificates have been received and approved by the City. The certificate will specify and document all provisions within this contract. A renewal certificate will be sent to the address listed in this section 10 days prior to coverage expiration. 10. Primary Coverage Clarification The parties agree that Legal Counsel's coverage shall be primary to the extent permitted by law. The parties further agree that they consider insurance maintained by the City as excess and not contributory insurance as to the insurance required in this section. 11. Cross Liability Clause 2005 RFP - General & Labor Attorney Page 24 of 30 A cross-liability clause or separation of insureds clause will be included in all general liability and professional liability policies required by this contract. Legal Counsel's insurance policy shall contain provision that such policies shall not be canceled or their limits of liability reduced without 30 days prior notice to City. A copy of each insurance policy, certified as a true copy by an authorized representative of.the issuing insurance company, or at the discretion of City, in lieu thereof, a certificate in form satisfactory to City certifying to the issuance of such insurance shall be forwarded to: Loreen R. Mills, Risk Manager City of Tigard 13125 SW Hall Blvd. Tigard, OR. 97223 Such policies or certificates must be delivered prior to commencement of the work. The procuring of such required insurance shall not be construed to limit Legal Counsel's liability hereunder. Notwithstanding said insurance, Legal Counsel shall be obligated for the total amount of any damage, injury, or loss caused by negligence or neglect connected with this contract. 9. PROFESSIONAL SERVICES The City requires that services provided pursuant to this Agreement shall be provided to the City by a Legal Counsel which does not represent clients on matters contrary to City interests. Further, Legal Counsel shall not engage services of an attorney and/or other professional who individually, or through members of his/her same firm, represents clients on matters contrary to City interests. Should Legal Counsel represent clients on matters contrary to City interests or engage the services of an attorney and/or, other professional who individually, or through members of his/her same firm, represents clients on matters contrary to City interests, Legal Counsel shall consult with the appropriate City representative regarding the conflict. After such consultation, the Legal Counsel shall have 30 days to eliminate the conflict to the satisfaction of the City. If such conflict is not eliminated within the specified time period, the Agreement may be terminated pursuant to Section 13 of this agreement. 10. METHOD & PLACE OF GIVING NOTICE, SUBMITTING BILLS & MAKING PAYMENTS All notices shall be made in writing and may be given by personal delivery or by mail. Notices sent by mail should be addressed as follows: City of Tigard (Legal Counsel) Attn: Attn: Mail: 13125 SW Hall Blvd. Mail: 2005 RFP - General & Labor Attorney Page 25 of 30 Tigard, OR 97223 Phone: (503) Phone: Fax: Fax: Email Address: Email Address: and when so addressed, shall be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices, bills and payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices, bills and payments are to be given by giving. written notice pursuant to this paragraph. All bills and payments shall be sent to the attention of the City's Senior Accountant at 13125 SW Hall Blvd., Tigard, Oregon 97223. 11. MERGER This writing is intended both as a final expression of the Agreement between the parties with respect to the included terms and as a complete and exclusive statement of the terms of the Agreement. No modification of this Agreement shall be effective unless and until it is made in writing and signed by both parties. 12. TERMINATION WITHOUT CAUSE At any time and without cause, as authorized under Tigard Municipal Code 2.60.010, the City shall have the right in its sole discretion, to terminate this Agreement by giving notice to Legal Counsel. If City terminates the contract pursuant to this paragraph, it shall pay Legal Counsel for services rendered to the date of termination. Termination by City must be done by motion of the City Council. 13. TERMINATION WITH CAUSE A. City may terminate this Agreement effective upon delivery of written notice to Legal Counsel, or at such later date as may be established by City, under any of the following conditions: 1. If City funding from federal, state, local, or other sources is not obtained and continued at levels sufficient to allow for the purchase of the indicated quantity of services. This Agreement may be modified to accommodate a reduction in funds. 2. If federal or state regulations or guidelines are modified, changes, or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this Agreement. 3. If any license or certificate required by law or regulation to be held by Legal Counsel, its subcontractors, agents, and employees to provide the services required by this Agreement is for any reason denied, revoked or not renewed. 4. If Legal Counsel becomes insolvent, if voluntary or involuntary petition in bankruptcy is filed by or against Legal Counsel, if a receiver or trustee is appointed for Legal Counsel, or if there is an assignment for the benefit of creditors of Legal Counsel. 2005 RFP - General & Labor Attorney Page 26 of 30 Any such termination of this Agreement under paragraph (A) shall be without prejudice to any obligations or liabilities of either party already accrued prior to such termination. B. City, by written notice of default (including breach of contract) to Legal Counsel, may terminate the whole or any part of this Agreement: 1. If Legal Counsel fails to provide services called for by this Agreement within the time specified herein or any extension thereof, or 2. If Legal Counsel fails to perform any of the other provisions of this Agreement, or so fails to pursue the work as to endanger performance of this Agreement in accordance with its terms, and after receipt of written notice from City, fails to correct such failures within ten (10) days or such other period as City may authorize. 3. If Legal Counsel fails to eliminate a conflict as described in Section 9 of this Agreement. The rights and remedies of City provided in the above clause related to defaults (including breach of contract) by Legal Counsel shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. If City terminates this Agreement under paragraph (B), Legal Counsel shall be entitled to receive as full payment for all services satisfactorily rendered and expenses incurred, an amount which bears the same ratio to the total fees specified in this Agreement as the services satisfactorily rendered by Legal Counsel bear to the total services otherwise required or be performed for such total fee; provided, that there shall be deducted from such amount the amount of damages, if any, sustained by City due to breach of contract by Legal Counsel. Damages for breach of contract shall be those allowed by Oregon law, reasonable and necessary attorney fees, and other costs of litigation at trial and upon appeal. 14. ACCESS TO RECORDS City shall have access to books, documents, papers and records of Legal Counsel that are directly pertinent to this Agreement for the purpose of making audits, examinations, excerpts and transcripts. 15. CITY ATTORNEY BAR MEMBERSHIP/OCAA MEMBERSHIP REQUIREMENTS Legal Counsel is responsible for maintaining Legal Counsel's professional standing as a member of the Oregon State Bar Association and the Oregon City Attorney's Association. 16. NON-WAIVER The failure of City to insist upon or enforce strict performance by Legal Counsel of any of the terms of this Agreement or to exercise any rights hereunder, should not be construed as a waiver or relinquishment to any extent of its rights to assert or rely upon such terms or rights on any future occasion. 2005 RFP - General & Labor Attorney Page 27 of 30 17. ATTORNEYS' FEES In case suit or action is instituted to enforce the provisions of this contract, the parties agree that the losing party shall pay such sum as the court may adjudge reasonable attorney fees and court costs, including attorney's fees and court costs on appeal. 18. GOVERNING LAW The provisions of this Agreement shall be construed in accordance with the provisions of the laws of the State of Oregon. Any action or suits involving any question arising under this Agreement must be brought in the appropriate court of the State of Oregon. 19. COMPLIANCE WITH APPLICABLE LAW Legal Counsel shall comply with all federal, state and local laws and ordinances, applicable public contracts, and, to the work to be done under this contract: 20. CONFLICT BETWEEN TERMS It is further expressly. agreed by and between the parties hereto that should there by any conflict between the terms of this instrument in the proposal of the contract, this instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said proposal conflicting herewith. 21. AUDIT Legal Counsel shall maintain records to assure conformance with the terms and conditions of this Agreement, and to assure adequate performance and accurate expenditures within the contract period. Legal Counsel agrees to permit City, the State of Oregon, the federal government, or their duly authorized representatives to audit all records pertaining to this Agreement to assure the accurate expenditure of funds. 22. SEVERABILITY In the event any provision or portion of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect and shall in no way be affected or invalidated thereby. 23. COMPLETE AGREEMENT This Agreement and attached exhibits constitutes the entire Agreement between the parties. No waiver, consent, modification, or change of terms of this Agreement shall bind either party unless in writing and signed by both parties. Such waiver, consent, modification, or change if made, shall be effective only in specific instances and for the specific purpose given. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. Legal Counsel, by the signature of its authorized representative, hereby acknowledges that he has read this Agreement, understands it and agrees to be bound by its terms and conditions. IN WITNESS WHEREOF, City has caused this Agreement to be executed by its duly authorized undersigned officer and Legal Counsel has executed this Agreement on the date hereinabove first written. 2005 RFP - General & Labor Attorney Page 28 of 30 Approved by Tigard Local Contract Review Board on the (Day) day of (Month), (Year) CITY OF TIGARD LEGAL COUNSEL By: By: Signature of City Manager Signature of Legal Counsel Principal Printed Name of City Manager Printed Name of Legal Counsel Principal Date: Date: 2005 RFP - General & Labor Attorney Page 29 of 30 ATTORNEY SERVICES CONTRACT EXHIBIT A SCOPE OF LEGAL SERVICES The final Scope of Legal Services will be developed during the award phase based upon which direction the City take in regards to one attorney form performing all services versus two firms Performing the different services detailed in the RFP packet. w 2005 RFP - General & Labor Attorney Page 30 of 30 RESPONSE TO REQUEST FOR PROPOSALS ' Attorney Services -General and Labor PROPOSAL FOR ATTORNEY SERVICES ~ General Attorney Services October 26, 2005 1Submitted To City of Tigard by RAMIS CREW CORRIGAN LLP Contact: Timothy V. Ramis ' Ramis Crew Corrigan LLP 1727 NW Hoyt Street Portland, OR 97209 (503) 222-4402 ' Fax (503) 243-2944 e-mail: timr@rcclawyers.com RAMIS CREW CORRIGAN LLP ATTORNEYS AT LAW 1727 NW HOYT STREET PORTLAND, OREGON 97209 TELEPHONE (503) 222-4402 Timothy V. Ramis FAX (503) 243-2944 WWW.RCCLAWYERS.COM angelab@rcclawyers.com October 26, 2005 Joe Barrett, Buyer City of Tigard - Information Desk 13125 SW Hall Blvd. Tigard, OR 97223 Re: Proposal to Provide Attorney Services - General Dear Mr. Barrett: Thank you for the invitation to respond to the City's Request for Proposals for City Attorney services. Service to the City has been a highlight of my professional life. I know that all members of our firm appreciate the opportunity to be considered. r With this transmittal letter, we are sending information on the firm's qualifications and experience, information on the qualifications and experience of team members, a description of our approach to and plan for providing legal services to the City, a summary of the compensation requested, and a discussion of additional services the firm can supply. We also include the various forms required by the City, including the proposal certification, signature page, acknowledgment of addenda and statement of proposal. r Our proposal is to provide general counsel services. This includes employment matters, but we suggest that the City continue to use other counsel for direct r participation in labor contract negotiations. We are prepared to perform all the services described in the RFP at Section 4, Scope of Service. Based on our experience and our review of the Scope of Services, we have a sound understanding of the requirements. Providing legal services to a city involves many areas of law and a wide variety of tasks. Much of our work involves immediate responses by phone or e-mail to legal questions that arise in the day-to-day operation of a city. We also provide more detailed responses by memoranda to more complicated legal questions. We work with City staff and others to finds ways to achieve City projects and programs. We negotiate contracts, intergovernmental agreements, real estate deals, and other transactions on behalf of the City, and review documentation or provide r Joe Barrett Buyer October 26, 2005 Page 2 documentation for those transactions. We provide City Prosecutor services for the City, and, when needed, our team of litigators represents the City in cases that are not covered by insurance defense. An important part of our work is advising City Council, both at meetings and by memorandum. We are committed to performing all services for the City when needed and to consult with the City regarding time frames for providing legal work. As lead counsel for our team, I am authorized to represent our firm in any matters related to this proposal. If we are selected for an interview, I will look forward to the opportunity to discuss our proposal. Very truly yours, 1. F Timothy V. Ramis G:\munATigard\attyrf pAransmittallettermpd M RAMIS CREW CORRIGAN LLP ATTORNEYS AT LAW TABLE OF CONTENTS PROPOSAL FOR LEGAL SERVICES SUBMITTED BY RAMIS CREW CORRIGAN LLP TO THE CITY OF TIGARD ' Tab/Section Number Description Page Number 1. Title Page 2. Transmittal Letter 3. Table of Contents 1 4. Firm Qualifications and Experience 1 a. Background of Ramis Crew Corrigan 2 b. Qualifications of Ramis Crew Corrigan 3 5. Team Members Qualification and Experience 13 1 6. Project Approach 24 Introduction 25 a. Work Plan 27 b. Contribution of City Personnel 30 1 7. Compensation 31 8. Additional Services 33 9. Additional Information 35 10. References 40 ' 11. Proposal Certifications 42 12. Signature Page 43 Attachment A Acknowledgment of Addenda 44 Attachment B Statement of Proposal 45 i 1 i 1 i i RAMIS CREW CORRIGAN LLP FIRM QUALIFICATIONS AND EXPERIENCE 1 - 1727 N.W. HOYT STREET PORTLAND, OREGON 97209 TELEPHONE: (503) 222-4402 ' FAX: (503) 243-2944 r 1 i . a. Background of Ramis Crew Corrigan LLP Ramis Crew Corrigan LLP was established with the goal of providing high quality specialized legal representation - promptly and responsively. For over thirty years the ' firm has advanced this goal by offering clients cost-effective legal solutions, practical legal advice and outstanding service. Our dedication to principles and results has earned the firm an outstanding reputation throughout the Pacific Northwest. in municipal matters and The firm has a long record of specialization particularly the role of City Attorney. We also specialize in land use matters and a range of general government matters. In addition, we have experienced litigation and transaction law attorneys. This specialization means not only that clients have true experts working with ' them, but also attorneys who will understand clients' needs and provide practical solutions to legal problems. We are not the largest firm in the region, however, we believe we are big on talent and experience. Notable successes include substantial land use and municipal law victories and excellent results in state and federal courts. The firm's lawyers are supported by a professional staff of legal assistants who share the firm's guiding commitment to legal excellence. The firm has earned a distinguished "AV" rating from Martindale-Hubbell Law Directory, the highest rating that directory awards. The "A" signifies the "highest level of legal ability," and the'Y'denotes "very high" adherence to the professional standards of conduct, ethics, reliability, and diligence. In 2005, Tim Ramis was named one of the Portland area's top lawyers by Portland Monthly (April 2005) and was chosen for inclusion in the 2006 Edition of Best Lawyers In America. The firm's nine attorneys work in the firm's one office, which is located in northwest Portland. All attorneys in the firm represent local governments as part of their practice. Five of the attorneys, Tim Ramis, Gary Firestone, John Pinkstaff, Nancy Tauman and Steve Crew practice governmental law as a major portion of their practice. Due to his past employment with the City of Tigard, Bill Monahan will not be involved in representing the City. ' The firm's three litigators Steve Crew Chuck Corrigan and Chad Plaster, have all represented the firm's municipal clients in a wide variety of matters. The firm's real estate attorney, Dom Colletta, devotes a substantial amount of his practice to representing cities in real estate transactions. Nancy Tauman represents primarily ' government clients, with an emphasis on employment matters. In addition, the firm has an ongoing relationship with Larry Blake, an experienced municipal court practitioner, both as prosecutor and judge, who provides municipal court prosecution services through ' the firm. Page 2 b. Qualifications of Ramis Crew Corrigan The firm's long history in the role of general counsel for Oregon cities makes us one of the state's most knowledgeable and experienced municipal law firms. Because of this expertise, the firm is frequently retained as special projects counsel by a range of Oregon governmental entities, and our lawyers are frequent speakers at seminars and conferences on the subject. The firms municipal law department is engaged on a daily basis in researching, applying and developing principles of municipal law on behalf of its government clients. We meet as a department on a weekly basis to review new cases and to keep current on legal issues affecting the interests of our governmental clients. Several of our lawyers are active members of the Oregon City Attorneys Association and the Government Law Section of the Oregon State Bar. We invest in updating our knowledge by frequent participation in municipal law seminars and educational activities. The firm has provided legal services to client cities and special districts on a wide ' range of topics, including: • Land use Police Personnel ' Water law Urban renewal Municipal Courts • Public meetings Litigation Workers • Public records Real estate Compensation • Public contracting Franchises Condemnation • Intergovernmental Elections Public finance agreements Annexations Nuisances • Employment law Constitutional law Infrastructure • Environmental Telecommunications financing • Transportation Code enforcement Labor planning Legislation negotiations • SDCs Risk Management Municipal • Wetland regulation Utilities In addition to providing general legal services for those cities and districts, the firm's ' lawyers have provided legal services on an individual project basis for several public entities. Some examples include: • Gilliam County: Land use, environmental law, municipal financing • Wasco County: Land use, public process ' North Clackamas Parks and Recreation District: Real estate • West Side Rural Fire Protection District: Land use, annexation, intergovernmental agreements • Oregon City School District: Employment, public records, government process, public finance, elections Page 3 • Port of Hood River: Municipal authority, land use ' City of Springfield: Land use, intergovernmental agreements • City of Portland: Land use, infrastructure finance • Multnomah County: Environmental law, land use, public process ' Clackamas Community College: Employment, public finance, labor issues • Riverdale School District: Facilities siting, intergovernmental ' agreements • City of Newberg: Public process, public records, land use procedure • Baker County: Litigation, land use • City of Cornelius: Employment, land use, public finance • King City: Employment, public meeting law • . Lafayette: Land use, public records • Amity: Land use, public records, intergovernmental agreements • Yamhill: Public meeting law, land use The following is a brief summary of our Municipal Group practice areas: Real Property Transactions. A substantial amount of the firm's real estate practice involves projects for cities and other local governments. We have assisted ' local governments and other clients with purchases, sales, leases, easements, licenses, vacations, dedications, condemnations, and other real property transactions. ' The firm's attorneys write and speak regularly on takings issues to public ' audiences and Bar Association members. Due to recent Supreme Court inverse condemnation and regulatory takings decisions, there has been a tremendous increase in litigation in this field of law. The attorneys at Ramis Crew Corrigan LLP have the expertise and experience needed to handle complex condemnation and inverse condemnation matters. Public Financing. Our attorney over the years have worked on a variety of public financing matters, including urban renewal districts, local improvement districts, development agreements, and other forms of financing. We recently ' assisted the City of West Linn in matters relating to financing of a major library expansion and provided legal advice to the City of Milwaukie relating to acquisition of waterfront property. Land Use Law. An important part of our Municipal Group's practice is our land use practice. Attorneys at Ramis Crew Corrigan LLP are nationally recognized experts in Land Use Law. The firm's practice is at the cutting edge of this rapidly developing field. The firm's attorneys have authored numerous articles and have lectured to diverse audiences about growth management and land use regulations. The firm has represented public sector clients in drafting zoning regulations and has litigated on ' Page 4 behalf of local governments at all levels of state and federal courts including the United States Supreme Court. Local Budget Law. The firm actively assists its local government clients to comply with local budget law. While issues typically arise most frequently during the early part of the year when budgets are being prepared and adopted, we continue to advise our city clients throughout the year regarding permissible expenditures and possible budget amendments or supplements. Codification of Ordinances. All three cities that the firm represents have Municipal Codes. We work closely with our city clients in determining which ordinance should be codified and in reviewing ordinances to ensure that they are drafted in a proper format to be incorporated into the Municipal Code, if required. We also often provide advice as to the proper format for council action - ordinance, resolution, or motion. Election Laws. The firm's municipal attorneys have developed substantial ' experience advising city clients regarding election laws. Election law involves two main sets of issues. One is compliance with procedural and substantive requirements relating to the adoption of ballot measures. The other set of issues has to do with ' compliance with restrictions on advocacy by City employees in the course of their employment. Open Meeting Laws. Familiarity with open meeting law is an essential part of municipal law practice. Our attorneys regularly provide advice, both before meetings and in the course of meetings concerning open meeting law. Public Record Laws. We often provide advice regarding public record laws when public record requests are made. More importantly, we provide training and advice on an ongoing basis to ensure that our city clients properly maintain public records and preserve exemptions that may applicable to certain documents. We are also familiar with the approach taken by the District Attorney on these matters, which allows us to give realistic advice on disputed records issues. ' Public Contractine. Several of the attorneys in the firm have had substantial experience advising our municipal and other clients regarding public contracting. When major revisions to the states public contracting laws were instituted in 2004, we took the lead in drafting public contracting rules that comply with the new statutes. As a result of our coordination of the efforts of our three city clients, we ' were able to save costs for each of our three cities by sharing the costs of drafting the new rules among our three clients. We are experienced in all phases of public contracting, including commenting on state legislation, drafting local regulations advising staff in preparing contract solicitation documents, negotiating, drafting and ' Page 5 reviewing contracts, and advising staff and council when disputes arise and ' challenges are made. Franchise Law. When franchises are about to expire, we routinely assist our ' city clients in developing new franchise agreements. We have represented local governments in solid waste, natural gas, electric power, and telecommunication ' franchises. Our involvement ranges from assuming primary responsibility for negotiating and drafting agreements to reviewing staff work product. We also have drafted code provisions governing franchising. We also assist local governments in the administration of franchises, advising cities regarding their rights under the franchise agreements. When necessary, we represent cities in disputes with franchisees. Also, we have substantial experience in assisting cities, including Tigard, to enforce the exclusivity provisions of franchise agreements, particularly solid waste franchise agreements. Annexation Law. Annexation continues to be a major issue, not just in Tigard ' but throughout the Metro area. All three cities that we represent have ongoing annexation issues. In addition to ongoing work with Tigard, we are currently working with the City of West Linn in developing a strategy to regularize its boundaries after a series of piecemeal annexations and with the City of Milwaukie, with is engaged in long-range planning for ultimate annexation of properties between Milwaukie and I- 205. ' Public/Private Partnerships. We have represented both local governments and ' private clients in public/private partnership efforts. On the government side, we have represented the City of Milwaukie in the development of its North Main area, a project that is in transition from public to private ownership. We represent the ' Master Planner, Costa Pacific, in the development of Villebois Village, a project that involved years of planning and coordination between the Master Planner and the City. ' Oregon Revised Statutes. Municipal practice is a very broad area - a local government over time becomes involved in a very wide range of legal issues. We are familiar with the statutes most commonly at issue in municipal law, and have participated in legislative processes for amendments to statutes when requested by clients. ' Public Meeting Law. Public meeting law covers a broad array of topics, including the open meeting requirement discussed above. We provide our municipal ' clients with advice on public meeting law on a regular basis. We also have provided training on public meeting issues. Page 6 1 General Business Law. Our attorneys have the experience and knowledge to advise local governments on transactions and other matters that are generally considered to be within the scope of "business law." We assist public and private clients with negotiating and drafting contracts, and in negotiating and documenting ' real estate transactions. We also have experience with formal competitive contract solicitation processes. ' Employment. We represent employers in employment taw matters. We have experience handling disputes involving discrimination, harassment, workplace retaliation, employee benefits, and unlawful employment practices. We counsel our employer clients to avoid claims by advising them on the hiring, promotion and firing of employees; the preparation of employee handbooks; and advising and defending employers against claims involving the requirements of federal and state anti- discrimination laws, the Family and Medical Leave Act,. the Americans with Disabilities Act, Wage and Hour Acts, and claims brought against the employer for ' wrongful termination and other forms of unlawful employment practices. Labor Relations. This firm has assisted in labor negotiations in various roles from formulating strategy to at-the-table negotiations. We are available for any of these functions. We are supportive of the current structure, which keeps the City ' Attorney from direct contact with bargaining unit representatives during negotiations. This avoids the inevitable friction that arises when the City Attorney attempts to fulfill the dual role of trusted counsel to city staff while simultaneously ' negotiating limits on their economic goals. We have extensive experience in advising governments on labor, employment ' and personnel matters other than labor negotiations. We have assisted cities with investigations, disciplinary issues, contract terminations, and separation agreements. ' Nancy Tauman has represented school districts and cities on all aspects of employment and labor law throughout her career as an attorney. Litigation. The firm has a very strong litigation department with a long record of success in all aspects of municipal litigation including land use, system development charges, enforcement matters, and civil damages claims. We have ' represented local governments at all court levels including the U.S. Supreme Court. Recent litigation successes include upholding the Washington County Transportation ' Impact Fee (Rogers Machinery v. Washington County and City of Tigard), upholding the State's local improvement district laws from multiple challenges (Martin v. City of Tigard), and defeating the arguments of the United States Department of Justice ' in the LDS v. West Linn matter. Our litigation experience includes both trial and appellate work, as well as ' appearances before LUBA. We have a proven record of defending our cities' actions. Page 7 We are sometimes asked to defend our clients even when insurance defense is ' available. Our experience with litigation has taught us that going to trial is an expensive option for the pursuit -of public policy. As a result, we practice preventive law where possible and have developed alternative dispute resolution skills to minimize litigation cost. 1 We have considerable experience in defending local government land use ' decisions at LUBA and in the appellate courts. In Media Art v. City of Tigard, we were successful in upholding the City's ban on billboards as a legitimate non-content based exercise of planning authority. (That success is particularly noteworthy given ' that the Court of Appeals had recently overturned the City of Gladstone's ban on billboards.) We represented the City of West Linn in Corporation of the Presiding Bishop v. City of West Linn in which we successfully defended local governments' ' ability to deny land use applications submitted by religious institutions that claim entitlement to an approval under the federal Religious Land Use and Institutionalized ' Persons Act. A critical aspect of success in land use litigation is to make sure the underlying decision is defensible. We work with local governments on drafting and updating zoning codes so that they are workable documents that allow local governments to make defensible decisions consistent with their policies. We provide training for staff ' and planning commissions on procedural and substantive issues to increase their ability to follow appropriate procedures and make decisions based on relevant criteria. We also assist cities with enforcement of land use laws through municipal court prosecutions and nuisance proceedings. This work includes working with staff to establish effective and efficient enforcement procedures. Environmental. Environmental laws affect the day-to-day operation of most governmental units including the acquisition or sale of real estate, the operation of ' municipal facilities, the recycling, disposal or discharge of regulated materials, and the use of hazardous or toxic substances or waste. ' Ramis Crew Corrigan LLP's Municipal Group has experience counseling public sector clients in matters of compliance with environmental laws including the Clean Water Act, the Endangered Species Act, the Solid Waste Disposal Act, Toxic Substances Control Act and state and federal wetlands laws. The firm has had tremendous success finding practical solutions to diverse environmental problems and ' is proud of its record of consistently achieving positive results for our environmental law clients. Page 8 1 One example of our experience in this matter is our representation of the City ' of Milwaukie in matters relating to groundwater contamination. When DEQ cited Milwaukie's well-based water system for the presence of chemical pollution, the City's financial exposure was very large, with DEQ seeking heavy fines as well as 1 expensive cleanup costs. DEQ was not cooperative in seeking a resolution that would put the burden on the real wrongdoers, an industrial business in the area which used solvents. Our strategy was to expose the agency's lack of cooperation quietly to ' legislators and to introduce a bill that would have led to legislative hearings on DEQ's treatment of local governments. To avoid this, DEQ negotiated an agreement to 1 reverse its position and use its own funds to gather evidence against the real polluter. With the evidence developed by DEQ we have been able to bring a damages action against those responsible to recover Milwaukie's cleanup costs. ' Constitutional Law. Constitutional law issues are important to local governments because they must always consider constitutional rights in their 1 legislation and actions. Members of this firm are experienced and knowledgeable on constitutional law issues. Constitutional freedom of speech issues are important in sign legislation and in City policies regarding the use of City owned and controlled areas. Constitutional takings issues are important in land use regulation. With RLUIPA, expertise in constitutional religious rights is also important. Claims for civil rights violations against local governments are common and in some cases have not been covered by insurance. We are experienced in all these areas. ' Formal Policies. The City as a whole, and many of its departments, have written policies that provide guidance, primarily to city employees, but in some cases to members of the public. On a regular basis, we have reviewed personnel policies, police practice policies, library policies, and other policies. While our advice is usually based on legal considerations (constitutionality, compliance with statutes, authority to adopt policies), we are often also able to provide practical comments based on our experience in other jurisdictions. ' Transportation law. Transportation issues have been of increasing importance in land use, public works, state permitting and other matters. We have been involved in numerous matters in which transportation has been a major issue. Condemnation. The firm maintains an active condemnation practice. We have represented local governments at all stages of the condemnation process, and have defended local governments against inverse condemnation actions. ' SDCs. Lawyers from the firm were involved in the negotiation and drafting of the state's SDC statute, and we have continued to be involved in this area of practice. This firm has worked with several city clients to develop System ' Development Charge code provisions and to assist them in adopting methodologies Page 9 and setting rates. We routinely advise our cities on SDC issues. When necessary, we ' have successfully defended our clients' SDC decisions in court actions. Mr. Ramis is a recognized expert on this topic and has written and spoken widely about SDCs, including multiple appearances at American Planning Association national ' conferences to teach SDC methodology and litigation defense strategies. In Rogers Machinery v. Washington County and City of Tigard, we were ' successful in upholding the Washington County Transportation Impact Fee against legal challenges that would have severely limited the ability of local governments to ' collect systems development charges. The decision not only upheld the specific ordinance,. but provides broad justification for SDCs. The Rogers Machinery decision precludes most, if not all, challenges to SDCs other than challenges that the particular SDC was inconsistent with the statutes or local ordinance. Police Matters. In addition to providing advice on the drafting of police policies, we also provide advice to police departments concerning interpretation and application of policies and concerning constitutional rights of persons to speak or assemble in public places. We also routinely advise police departments concerning public records requests. The task of determining which police records must be made public and which are exempt from disclosure involves important and often conflicting ' policies concerning the public right to know, innocent citizen's legitimate privacy interests, and crime victims' rights. We recently reviewed hundreds of pages of materials of West Linn police records regarding the investigation of the Ashley Pond ' and Miranda Gaddis murders to determine what could be released to reporters. Adoption of Revised Nuisance Regulations. We assisted the City of West Linn ' in preparing and adopting amendments to its Municipal Code provisions regulating nuisances. West Linn was faced with a situation in which persons could violate code provisions, including important environmental protections, and risk only a relatively small fine in municipal court. Moreover, the nuisance ordinance gave the property owner control over abatement of nuisances. The amendments give the local ' government authority to control and abate nuisances and to collect all costs incurred in doing so. The ordinance is unique in Oregon and provides substantial leverage in resolving violations. Billboard Regulations. Tigard's ample freeway frontages with commercial ' development are attractive to billboard companies. Knowing the history of vulnerability of traditional sign codes to First Amendment legal challenges, we rewrote Tigard's sign code to prohibit billboards without the use of content-based ' regulations. The innovative approach was tested in the case of Media Art v. City of Tigard, where we successfully defended the billboard ban. This case is important for local governments because it is instructive to those jurisdictions facing the issue. It ' took on special importance because the courts had recently invalidated the City of Gladstone's legal effort to accomplish the same goal. ' Page 10 Water Law. The firm has been involved in advising clients on many water- related topics. This includes securing in-stream rights, use and protection of aquifers, transmission agreements, securing sources, creation and dissolution of water entities and negotiating supply contracts. We are frequently consulted in these matters by cities and water districts and expect to continue in this area of practice. ' G:\muni\Tigard\attyrfp\munigrp.wpd 1 1 1 1 ' Page 11 ~ RAMIS CREW CORRIGAN LLP 1 TEAM MEMBER QUALIFICATIONS AND EXPERIENCE r ' 1727 N.W. HOYT STREET ' PORTLAND, OREGON 97209 TELEPHONE: (503) 222-4402 FAX: (503) 243-2944 Areas of Specialization by Attorney and Years as Attorney e Specialization Years as Attorne Attomy Y Tim Ramis Municipal law, Land Use and Environmental 30 Regulation, System Development Charges, Public Meetings and Records, Municipal Finance, Appellate Litigation, Water Law Steve Crew Litigation, Risk Management, Litigation, Civil 27 Rights, System Development Charges, Public Records Litigation, Code Enforcement Chuck Corrigan Litigation, Condemnation, Employment Law, 29 Nuisance and Civil Forfeiture, Code Enforcement, Police Issues, Workers' Compensation John Pinkstaff Land Use, Municipal, Public Contracts, 30 Charter Authority, Public Meetings Law, Water Law, Infrastructure Finance. Dom Colletta Real Estate, Municipal Finance, Public 30 _ Meetings Law, Intergovernmental Agreements Gary Firestone Municipal law, Land Use, 17 Telecommunications, Elections, Franchise Law, Intergovernmental Agreements, Transportation Planning Nancy Tauman Employment, Labor Relations, Municipal 27 Liability, Risk Management, Litigation Chad Plaster Litigation 7 Page 13 1 1 MUNICIPAL GROUP ATTORNEYS AND STAFF Timothy Ramis. Partner. Tim leads the Municipal Group, having acted as City Attorney for one or more cities for 25 years. He is experienced in all areas of municipal law, with expertise in land use and urban renewal. Gary Firestone. Partner. Gary's practice is primarily devoted to providing legal services to the firm's municipal clients. For the last seven years of his 17 year legal career, he has been practicing as a municipal attorney. He is experienced at many aspects of municipal law, including public contracting, public records, land use, public meetings, and employment. John Pinkstaff. Partner. John served in the Yamhill County Counsel's office for 8 years. John is an experienced land use attorney who continues to provide legal services for the firm's municipal clients. Dominic Colletta. Partner. Dom is an experienced real estate attorney, with 30 years of practice. A major part of his practice is providing legal services to the firm's public clients on real estate matters. Stephen Crew. Partner. Steve leads the firm's litigation department. Many of his cases have involved representation of the firm's city clients. He has represented cities in major prosecutions of code violations in Municipal Court. Chuck Corrigan. Partner. Chuck is a member of the litigation department. He frequently represents local governments in condemnation actions. Nancy Tauman. Of Counsel. Nancy has acted as general counsel for school districts on a wide range of government law matters. She has considerable experience in representing public bodies in employment matters: ' Chad Plaster. Associate. Chad is a member of the litigation department and has frequently performed legal services for public clients. He has litigated tax collection cases and assisted with municipal court prosecutions. Will Selzer. Paralegal. Will has been with the firm since 1988. He assists the firm's attorneys in legal and factual research, analysis and document drafting. Page 14 TIMOTHY V. RAMIS Tim Ramis is a partner and leads the firm's Land Use, Real Estate and Municipal Practice Groups. His practice focuses on all aspects of municipal law, land use and transportation planning, wetland permitting, appellate practice (Land Use Board of Appeals (LUBA) Court of Appeals, and Supreme .Court) and legislative drafting. Mr. Ramis serves as City Attorney for the cities of West Linn, Tigard, and Milwaukie. i PROFESSIONAL EXPERIENCE r Mr. Ramis has been with the firm since 1976. He has headed the firm's Municipal, Land Use and Real Estate groups for 25 years and has been City Attorney for one or more cities since 1981. Prior to joining the firm in 1976, Mr. Ramis served as Assistant County Counsel for ' Washington County, Oregon, where he was a legal advisor to the County Planning Commission, Planning Department, Public Works Department, and Unified Sewage Agency. He also worked as staff liaison to the Metropolitan Service District. EDUCATION Mr. Ramis received his undergraduate education from Princeton University and Stanford University (B.A.1972). He received his law degree from the University of Oregon (1975). Mr. Ramis was a member of the Managing Board for Oregon Law Review. MEMBERSHIPS Mr. Ramis is a member of the Oregon State Bar Government Law and Real Estate/Land Use Sections. He has served on the subcommittees for Real Estate/Land Use Education and Legislation. He is also a member of the Multnomah County Bar Association and the Oregon City Attorneys Association. ' Mr. Ramis is admitted to practice before the Oregon State Bar (1975), the United States District Court, District of Oregon (1975) and the United States Supreme Court. PUBLICATIONS AND PRESENTATIONS Mr. Ramis is a frequent speaker at conferences and seminars regarding land use and ' real estate issues. He has spoken to seminars sponsored by the Oregon State Bar, Colorado Bar Association, Law Seminars International, American Planning Association, Oregon Law Institute, Oregon Planning Institute, National Business Institute, League of 1 Oregon Cities, and the Audubon Society. He has also authored and co-authored several professional articles regarding land use issues, including a chapter in the Oregon State Bar CLE Land Use Manual. Page 15 GARY FIRESTONE ' Mr. Firestone is a partner with the firm. He concentrates his practice on land use and municipal law. He represents both private clients and local governments in land use matters. Mr. Firestone advises municipal clients on a wide range of issues, including land use, public contracting, public meetings and records, employment, and elections. PROFESSIONAL EXPERIENCE Mr. Firestone joined the firm in 1993. Prior to that he practiced in the Portland, Oregon office of Heller Ehrman White 8t McAuliffe. From 1987-1989, Mr. Firestone worked as a law clerk with the Oregon Supreme Court. EDUCATION Mr. Firestone earned his undergraduate degree in Political Science with honors from McGill University in 1974. He also earned a Master of Arts degree from McGill in 1979. He received his law degree in 1987 from the University of Arizona College of Law. At the University of Arizona College of Law, Mr. Firestone served as Editor in Chief of the Arizona Journal of International and Comparative Law. Upon graduation, he was made a member of the Order of the Coif. MEMBERSHIPS AND ACTIVITIES Mr. Firestone is admitted to the Oregon State Bar (1987) and is a member of the Washington Bar Association. He is admitted to practice in the Ninth Circuit (1990) and District of Columbia Circuit (1990) Courts of Appeal and the United States District Courts for the District of Oregon (1991), the Western District of Washington (1995), and the Eastern District of Washington (1996). Mr. Firestone has served on the Judicial Administrative Committee of the Oregon State Bar. He is a member of the Oregon City Attorneys Association. PUBLICATIONS AND PRESENTATIONS Mr. Firestone co-authored the "Motion Practice" chapter of the 1994 Oregon State Bar CLE Federal Civil Litigation Manual. Mr. Firestone has spoken at several seminars on topics related to municipal law and land use. 1 Page 16 i JOHN C. PINKSTAFF John C. Pmkstaff, ~ who joined the firm in October 2002, is a partner at Ramis Crew ' Corrigan LLP. His practice emphasizes real estate and land use, environmental and ' municipal law matters. He has handled a wide variety of development issues for both the public and the private sector. PROFESSIONAL EXPERIENCE Prior to joining the firm, Mr. Pinkstaff served as Deputy Legislative Counsel, ' responsible for land use and environmental law legislation for the Oregon State Legislature, as Counsel to the Legislature's Law Improvement Committee, and as Assistant County Counsel and acting County Counsel for Yamhill County. While in private practice, Mr. Pinkstaff represented the cities of Amity and Yamhill. I In the public sector, John has handled a wide variety of matters for local government, including advice to planning staffs, hearings before the planning commissions, city councils or boards of commissioners and defending decisions of local governments ' before LUBA and the Court of Appeals, and periodic review before the Land Conservation and Development Commission. He has experience in public contracting and project management for a variety of public works projects and has served as ' counsel to a county sewer service district. He has extensive experience dealing with environmental matters, having represented local governments with regard to hazardous waste cleanups, solid waste disposal site permitting, and subsurface sewage disposal issues. EDUCATION University of California, Hastings College of Law (J.D. 1973); University of Oregon (B.S. 1968 - Science major); Honors College (1965). MEMBERSHIPS AND ACTIVITIES Admitted to: Oregon State Bar, 1975, State Bar of California, 1976, United States District Court, District of Oregon, 1975. Member Environmental Law Section, Real Estate and Land Use Section (RELU), RELU Education Committee, RELU Executive Committee and American Bar Association. Oregon State Bar Committees: Past Member Law Related Education, three years, Chair and Indigent Defense, three years. Past ' President of Yamhill County Bar Association. PUBLICATIONS AND PRESENTATIONS Mr. Pinkstaff has spoken at numerous seminars on land use issues, including representation as programs sponsored by the Oregon State Bar RELU and Government ' Law Sections. Page 17 STEPHEN F. CREW Mr. Crew is a partner with the firm and is co-chair of the firm's litigation department. He has a varied litigation practice, including environmental, antitrust, and municipal enforcement cases. PROFESSIONAL EXPERIENCE Prior to joining the firm in 1981, Mr. Crew served as Assistant Federal Defender with the Federal Defender and Assistant Public Defender with Multnomah Public Defender. ' As a member of the firm, Mr. Crew has been the lead attorney on numerous litigation matters for both public and private clients. In addition to civil litigation in state and federal courts, Mr. Crew has represented local governments in enforcement cases in municipal court. EDUCATION Mr Crew graduated from the University of Oregon with a Bachelor's in Business Administration. He earned his law degree at the Northwestern School of Law of Lewis Et Clark College. ' MEMBERSHIPS AND ACTIVITIES Mr. Crew is a member of the Oregon State Bar's Litigation, Disciplinary Council, Antitrust and Criminal Law sections and has served on the Oregon State Bar's Affirmative Action Committee. He is a member of the American Bar Association and the Multnomah Bar Association. He has served on the Oregon Criminal Justice Council and the Psychiatric Security Review Board. Page 18 CHARLES E. CORRIGAN Mr. Corrigan is a partner in the firm and has been in practice for twenty-eight years. He serves as co-chair of the firm's Litigation Department. He represents local ' governments, businesses, and individuals in a variety of civil litigation matters, including condemnation, inverse condemnation, real property, commercial, 1 employment, and personal injury cases. PROFESSIONAL EXPERIENCE Mr. Corrigan has been with the firm since 1985, and has been a partner since 1988. Prior to joining the firm he gained extensive trial experience as a public defender, and also served as the Executive Assistant for a Multnomah County Commissioner. Since joining the firm, Mr. Corrigan has routinely appeared in state and federal court ' on behalf of the firm's clients. He has participated in numerous condemnation and inverse condemnation proceedings, as well as a variety of other civil litigation matters. EDUCATION Mr. Corrigan graduated from the Wharton School at the University of Pennsylvania with a bachelor's degree in economics and earned his law degree at the University of - Oregon. MEMBERSHIPS Mr. Corrigan is admitted to practice in all state and federal courts in Oregon and Washington and the Ninth Circuit Court of Appeals. ' Mr. Corrigan has served on the board of directors of the Multnomah Bar Association and has chaired state and local bar committees on pro bono representation, judicial selection and legal services for the poor. He is also a member of the Oregon and ' Washington Bar Associations, the Oregon Trial Lawyers Association and the Association of Trial Lawyers of America. ' PUBLICATIONS AND PRESENTATIONS Mr. Corrigan has made numerous presentations to the public and the bar, and has ' authored papers on a variety of topics. His article 'What Does it Take for a Taking in Oregon" appeared in the March and July volumes of the 1999 Oregon Litigation Journal. Mr. Corrigan is scheduled to present the topic "Trying an Eminent Domain ' Case" at the Eminent Domain seminar to be hosted by The Seminar Group on April 28 and 29`h, 2005. He spoke on the same topic at the group's seminar in 2003. Page 19 DOMINIC G. COLLETA r. Colletta is a partner with the firm. He focuses his practice on intra and multi- ' state real estate transactions. His real estate practice includes environmental and ' land use issues. His practice also includes advising municipal clients on public contracting law. 1 PROFESSIONAL EXPERIENCE Prior to joining the firm in 1995, Mr. Colletta practiced law in California for 20 years, ' with a focus on real estate and land use law. He was the chair of the real estate department of a 115 member law firm in California. He has successfully represented cities in both California and Oregon in real property acquisitions and sale, easement creation and vacation, construction and contracting issues, and inverse condemnation matters. ' EDUCATION Mr. Colletta attended the University of Portland where he earhed his Bachelor of Arts, cum laude, in 1971. He obtained his law degree from Loyola University of Los Angeles School of Law in 1974. MEMBERSHIPS Mr. Colletta is a member of the Multnomah County, California and Oregon Bar ' Associations as well as the Real Estate and Land Use and Construction Law Sections of the Oregon State Bar, the Real Estate Section of the California State Bar, the Oregon Chapter of the Community Associations Institute and Oregon Washington Community Association Managers. He is admitted to practice in the State of California (1975), the United States Tax Court (1977), the United States District Court, Central District of California (1981), the United States District Court, Eastern District of California (1992) and the State of Oregon (1995). PUBLICATIONS AND PRESENTATIONS Mr. Colletta authored "Residential Construction" for the Oregon State Bar's ' Construction Law 1998 Cumulative Supplement, a chapter of the Oregon Contractor's Reference Manual, is a frequent presenter at and three-time chair of the annual Real Estate Et Land Use Conference of the Oregon State Bar. He is also a frequent lecturer and presenter of continuing education classes for attorneys, property managers, developers and realtors on real property, community association, title and ethics issues. Page 20 NANCY S. TAUMAN Ms. Tauman is of counsel to the firm. She focuses her practice on employment, personal injury, school, and ERISA law. She is also an experienced arbitrator, mediator and hearings officer. PROFESSIONAL HISTORY Prior to becoming an attorney, Ms. Tauman served in the United States Peace Corps in the Dominican Republic as a teacher trainer. She has also taught in Chicago Public ' Schools, Chicago, Illinois; Silver Fork School District (2 room school), Kyburz, California; English speaking school of Bern, Bern Switzerland; and the American School of Barcelona, Barcelona, Spain. Ms. Tauman joined Hibbard Caldwell 8t Schultz as an attorney in 1979 and became a member of Ramis Crew when it merged with Hibbard Caldwell. ' EDUCATION Ms. Tauman earned her undergraduate degree from Stanford University (A.B. 1967) ' and her law degree from the Northwestern School of Law of Lewis and Clark College (J. D., cum laude, 1978). MEMBERSHIPS AND ACTIVITIES Ms. Tauman is admitted to practice in Oregon (1978), before the U.S. District Court, ' District of Oregon (1979) and the U.S. Court of Appeals, Ninth Circuit (1981). Throughout her career Ms. Tauman has been active in the bar. She is a member of the Clackamas County Bar, Multnomah County Bar and Oregon State Bar. She is a member ' of the Oregon State Bar Health Law Section and has served in a multitude of positions on state and local bar committees. 1 Page 21 CHAD PLASTER 1 Mr. Plaster is a senior associate in the firm's litigation department. He has represented both private entities and local governments in a variety of cases, ' including municipal enforcement and tax collection. ' PROFESSIONAL EXPERIENCE Mr. Plaster joined the firm as a law clerk in 1995 and became an associate in the firm in 1997. EDUCATION Mr. Plaster received his undergraduate degree in Economics from the University of Washington in 1993. In 1997, he received his law degree from the Northwestern School of Law of Lewis and Clark College, where he served as Notes and Comments. Editor for ' the inaugural edition of the Journal of Small and Emerging Business Law. MEMBERSHIPS Mr. Plaster is admitted to the Washington State Bar (1997) and the Oregon State Bar (1998). Mr. Plaster is a member of the Clark and Multnomah County and Oregon and Washington State Bar Associations. He is a member of the Business Law and Business Litigation Sections of the Oregon State Bar and the Business Law, Consumer Protection, Antitrust, and Unfair Business Practices and Litigation Sections of the ' Washington State Bar. PUBLICATIONS Mr. Plaster co-authored a revision to the Land Sale Contracts chapter of the 1998 Oregon CLE on Damages. Page 22 G. WILLIAM SELZER 1 Mr. Selzer is a paralegal who has been with the firm since 1988. He provides valuable ' assistance and expertise in land use and municipal matters. He assists the firm's attorneys in research, analysis and document drafting. ' PROFESSIONAL HISTORY Before coming to Portland in 1986, Mr Selzer was news director at a public radio ' station in Ketchikan, Alaska where he specialized in reporting on local governments and the court system. He was a military journalist in the U.S. Army from 1968 to 1971, with service in Vietnam. ' Mr. Selzer has had increasing responsibilities with the firm over the last 17 years. His primary responsibilities include factual and legal research. He is also experienced at ' properly formatting ordinances and resolutions. 1 EDUCATION Mr. Selzer is a Certified Legal Assistant (certified by the National Association of Legal ' Assistants. 1 Page 23 RAMIS CREW CORRIGAN LLP ' PROJECT APPROACH ' 1727 N.W. HOYT STREET PORTLAND, OREGON 97209 ' TELEPHONE: (503) 222-4402 FAX: (503) 243-2944 INTRODUCTION ' Over the years our firm has developed several fundamental principles which we find are important to our municipal clients in working with the City Attorney. We would be happy to discuss these matters in detail. 1. Lawyers are not policymakers. ' The City Attorney's office should not confuse its role as the advisor and implementor with the authority of the Council and City Manager to make policy for ' the City. We find that our governmental clients, like private sector clients, want to be informed of the various options that are available and the legal risks attached to each. They do not want the City Attorney to make policy decisions disguised as legal ' advice. ' 2. Look for creative means to achieve goals and overcome apparent legal impediments. Lawyers in our firm approach issues as problem solvers. If there is an apparent legal barrier to attaining a goal desired by the City, we look for alternative means to accomplish the objective while staying within the legal limits. 3. Practice preventative law. When we see the City getting into areas of risk we highlight those risks to the City Council, administration or staff involved. This does not mean urging the City to ' be paralyzed by fear. Rather, it is a process of anticipating potential issues and dealing with them before they become expensive problems. 4. Assist City management in containing legal costs. As public resources become more limited City management and the City Attorney must become more vigilant in containing all costs, including legal expense. This has many aspects including frequent review of the status of the legal budget with the City Manager (we meet at least quarterly with each City Manager to review this) and training of staff so that expensive attorney time is not spent on work that could be done by staff (for example, preparing initial drafts of resolutions, ' agreements and ordinances). 5. Restrict representation of public entities that are likely to have conflicts with cities, in particular with those cities we represent on a regular basis. We have found that cities not only have conflicts with private parties, they often have conflicts with other governmental entities. In particular, cities and special districts are likely to have conflicts arising from their distinct interests. 1 Page 25 Those conflicts arise in the context of annexation, urban renewal, and other areas. We therefore do not act as general counsel for any district. We do legal work on a ' special project basis for various districts when those special projects do not conflict with our work for our city clients. r r Page 26 1 ' a. WORK PLAN Commitments To Provide Legal Services The firm's work plan is to provide the services listed in the scope of work at ' pages 8 to 9 of the Request for Proposals in a timely, thorough, efficient and cost- effective matter. City attorney work involves an ongoing, constant commitment to provide legal services when needed by the City. This typically involves three types of commitment by the City attorney's office: ' 1. A commitment to have a qualified attorney present at Council meetings when needed; 2. A commitment to undertake and competently complete projects (e.g. preparation of legal memoranda, preparation of transaction documents) in a timely fashion; and 3. A commitment to have a qualified attorney available to answer legal ' questions that arise on a day-to-day basis. This firm is able to meet these commitments because it has several competent ' and qualified attorneys ready to assist the City. Attorney Responsibilities The City Attorney is appointed by the Council, is directly responsible to it and ' must therefore maintain a direct client relationship with the Council. Tim Ramis will act as City Attorney and will attend most City Council meetings. When he is unable to attend, another qualified attorney will attend in his place. In most situations when Tim is unable to attend a council meeting, Gary Firestone will attend the meeting. However, in some situations, the firm, after consultation with the City Manager, may designate another partner to fill in for Tim, depending on the issues on the agenda for the meeting and availability of attorneys. ' Mr. Ramis will be the primary contact on most matters. Our plan for the City is to continue to have Tim Ramis and Gary Firestone take the lead in providing general City Attorney services to the firm. John Pinkstaff and Dom Colletta are also ' experienced in a wide range of municipal law matters. Dom Colletta will provide real estate legal services, and Steve Crew and Chuck Corrigan will take the lead in litigation matters. Larry Black will handle Municipal Court prosecutions. Nancy ' Tauman, Chuck Corrigan and Gary Firestone will be responsible for personnel matters. Other attorneys may be involved as needed. ' Often the firm's attorneys work collaboratively with each other, using each attorney's particular expertise to provide the best possible services for our clients. Page 27 Timely Provision of Legal Services t Our experience has been that our current attorney staffing levels allow us to provide quality legal services to our clients on a timely basis. We make a special effort to ensure that Tigard and our other municipal clients receive timely service. When legal services are requested by the City, we determine from the City how quickly it needs a response and always make every effort to provide a timely response within the time set forth by the City. Because of the importance of our municipal law practice, we give priority to our City clients. The only standard time ' frame is to get the response to the City when the City needs it. The most important principle is to clearly establish when the response is needed. The appropriate time for providing a response depends on the circumstances of each situation. A simple question that does not require a written response can often ' be answered on the spot, or within a matter of minutes. A more complex question or one that requires a written response can sometimes be answered within a few days. Some major projects may take months, with a constant interaction between Council, staff and the City Attorney. Council Meeting Preparation A major part of our responsibilities as City Attorney is to advise the Council at Council meetings. Part of our responsibility is to review materials before Council ' meetings to make sure that appropriate procedures are scheduled and followed. We review future agenda items listed in advance in the Council Newsletter to see if any ' issues need to be reviewed well in advance of a meeting. On receipt of the Agenda Packet, we review the Agenda Packet in detail to make sure that ordinances and resolutions are properly drafted and that other legal requirements are complied with. As needed, we discuss agenda issues with staff and advise on appropriate resolution of any issues. Finally, the attorney who attends the Council meeting reviews the agenda items so that the attorney is able to respond to questions that are raised. Weekly Departmental Meetings The firm's municipal department holds a weekly meeting to discuss ongoing projects and other issues that arise for our municipal clients. We use the meeting to make sure that projects get done on time, to assign tasks, and to brief other attorneys on issues that they may have to deal with. Page 28 1 Budget Issues We are aware that cities have limited budgets and need to carefully limit expenditures. While the amounts paid by Tigard to the firm have varied, primarily because of changes in the extent of litigation matters we have been engaged in, we have been successful in avoiding substantial increases in the amounts we charge the City. For example, in the 2004-05 fiscal year, we billed the City about $160,000, which was less about the same as the amount billed in 1996-97 and less than the amount billed in other years since that time. Details on our billings to the City are included in the Additional Information section of this proposal. Although we expect that billings would increase because of the increase in rates that we are asking for, we do not expect the increase to be substantial and plan to continue our prudent practices that have avoided substantial increases in legal costs. On the average, we have billed about $206,000 per year for the last 10 years, ranging from a low of $157,589 to a high of $310,257in 1998-99. We note that our billings in the last fiscal year were the second lowest in the last 10 years. We expect the number of hours required to provide legal services to stay in the same general range. We are sufficiently staffed to provide service within that range, even if the City need for equal services increases back to 1998-99 levels. Because of the varied nature of the demands for legal services, it is impossible ' to accurately predict the number of hours or costs for providing the services described in the scope of service. However, estimate that we will continue to bill ' between 1,000 and 1,5000 hours per year unless there is a significant increase in projects assigned to us. 1 Page 29 1 b. CONTRIBUTION OF CITY PERSONNEL One of the most important aspects of an outside City Attorney is to coordinate with staff so that efforts are not duplicated and so that services are provided in a timely fashion. Although we most frequently work with the City Manager and department heads, we also work on a regular basis with staff in the planning, engineering, and finance departments. Staff involvement is often crucial to our understanding of the facts of a situation, and we provide the legal advice so that staff can adequately respond. We expect that staff will coordinate with us and provide us with the factual information we need to provide legal services. Staff can undertake responsibilities that can limit the amount of legal services needed by preparing documentation (initial drafts of ordinances, resolutions, contracts) subject to attorney review. We have found that trained and knowledgeable staff can reduce the amount of legal expenditures. We have conducted training sessions for staff on matters such as code enforcement, land use procedures, and Measure 37 and will continue to provide training as part of our services. We appreciate the staff's cooperation in this approach and expect it to continue to benefit the City in the future. 1 Page 30 r i 1 RAMIS CREW CORRIGAN LLP 1 COMPENSATION r i• r r r 1727 N.W. HOYT STREET PORTLAND, OREGON 97209 TELEPHONE: (503) 222-4402 FAX: (503) 243-2944 r r r HOURLY RATES Partner/Of Counsel $165 Senior Associates $145 Associates $115 Law Clerks/Legal Assistants $70 Secretarial $50 COSTS The firm does not charge hourly rates or travel expenses for travel between our offices and City offices. Travel to other locations on City business may be 1 charged. Our travel expense cost per mile for use of personal vehicles is 48.5 cents. Copy costs are billed at 25 cents per copy if made in-house. Faxes are charged at 20 cents per page. These costs are subject to change as our costs change. Other costs incurred by the firm, such as outside copy jobs, electronic research costs, other travel expenses and filing fees, are passed on without mark-up. Page 32 r ~ RAMIS CREW CORRIGAN LLP ADDITIONAL SERVICES 1727 N.W. HOYT STREET i PORTLAND, OREGON 97209 ' TELEPHONE: (503) 222-4402 FAX: (503) 243-2944 ■ SERVICES PROVIDED BY RAMIS CREW CORRIGAN LLP The firm provides a wide range of legal services. The scope of services listed in the RFP was sufficiently broad to encompass the legal services we expect to provide for our municipal clients. At times, we undertake special projects that provide that require substantial amounts of effort. For example, the scope of services lists working with staff to provide appropriate amendments to codes and policies. Cities often hire consultants to prepare major rewrites of codes and plans. Our firm has the experience and expertise to draft major revisions to plans, codes and regulations. At times, the firm undertakes factual investigations for our clients, either directly using firm personnel, or by using outside specialists retained by the firm. Those investigations are often performed in relation to personnel matters. The scope of services makes complex litigation and special project assignments outside the regular scope of services and subject to Council approval. This firm is experienced at providing complex litigation and is ready and able to do so for the City as needed and as requested. In the past, we have worked on special projects (e.g. contract drafting and review, public contracting regulations) for the City, and are willing to do so in the future, as authorized by the City. Page 34 r ~ RAMIS CREW CORRIGAN LLP ADDITIONAL INFORMATION 1727 N.W. HOYT STREET PORTLAND, OREGON 97209 TELEPHONE: (503) 222-4402 FAX: (503) 243-2944 BILLING HISTORY City of Tigard Billings 7/1/95-6/30/05 Fiscal Year Amount Billed Hours Billed FY 95-96 $233,470 3,128.7 hours FY 96-97 $157,589 1,919.1 hours FY 97-98 $197,122 2,205.9 hours FY 98-99 $310,257 2,920.9 hours FY 99-00 $274,107 2,387.6 hours FY 00-01 $184,092 1,620.2 hours FY 01-02 $183,066 1,489.4 hours FY 02-03 $173,677 1,419.6 hours FY 03-04 $188,896 1,463.6 hours FY 04-05 1$158,836 11048. 0 hours This chart shows the hours and amounts billed by this firm to the City of Tigard over the last 10 years. As can be seen from the chart, by working with the City, we have been able to control legal costs so that the amounts billed in the last fiscal years were among the lowest for the last 10 years. This information is also discussed at page 28 of this proposal in the "Project Approach" section. Page 36 COMPARATIVE COSTS FOR CITY ATTORNEY SERVICES PER CAPITA COMPARISON OF CITY ATTORNEY SERVICE COSTS (2004-05) (From most expensive to least expensive) CITY $ PER 1000 BUDGET' POPULATION' I or 0' POP4 Wilsonville $21,275 $345,716 16,250 I Lake Oswego $13,916 $500,000 35,930 1 Eugene $12,348 $1,786,000 144,640 0 ' Portland $11,750 $6,469,349 550,560 1 Medford $11,582 $801,710 69,220 1 Beaverton $10,737 $852,000 79,350 1 Gresham $9,612 $905,992 94,250 1 Sandy $7,862 $50,000 6,360 0 Milwaukie 7 $7,347 $151,28456 20,590 0 _ Salem $7,061 $1,009,370 142,940 1 West Linn' $6,561 $157,2635 23,970 0 Springfield $4,980 $275,629 55,350 0 Corvallis $4,754 $250,000 52,590 0 Oregon City $4,512 $128,000 28,370 0 Tigard' $3,557 $158,8365 44,650 0 Hillsboro $3,252 $260,000 79,940 0 NOTES: 1. 1 = In house counsel. O = Outside counsel 2. Average Budget: $881,322 with Portland, Eugene Ft Salem. $372,033 without Portland, Eugene Et Salem 3. Average Population: 95,019 with Portland, Eugene Et Salem- 52,475 without Portland, Eugene Ft Salem 4. Average Per 1000:$8,819 5. West Linn, Tigard and Milwaukie are actual billings 6. Milwaukie figure includes extraordinary litigation 7. Represented by Ramis Crew Corrigan LLP This chart shows that the City of Tigard's per capita legal costs using Ramis Crew have been among the lowest of the cities surveyed. The chart also shows that hiring outside counsel is usually cost-effective for cities. PnoP 37 LIST OF PROJECTS The following lists some of the major projects this firm has worked on for government clients. RLUIPA Corporation of the Presiding Bishop v. City of West Linn. This firm advised the City of West Linn throughout the conditional use/design review process regarding legal aspects of the applicant's claim to be entitled to an approval based on the Religious Land Uses and Institutionalize Persons Act. We successfully defended the City's denial, obtaining decisions in the City's favor in the Court of Appeals and ' Oregon Supreme Court, defending local governments' ability to deny land use applications by religious institutions if the applications do not demonstrate compliance with applicable standards. Deschutes County. We recently advised the Deschutes County Counsel's office regarding a pending application by a church that is asserting that it is entitled to an approval under RLUIPA. SIGNS Media Art v. City of Tigard. This firm successfully defended the City of Tigard's ban on billboards against constitutional challenges, while at the same time LUBA and the Courts were invalidating other jurisdictions attempts to ban billboards. Our success is due in part to the approach that we have developed with the City to eliminate or reduce content-based sign regulations. TRAFFIC IMPACT FEE In Rogers Machinery v. Washington County and City of Tigard, we were successful in upholding the Washington County Traffic Impact Fee, as applied by the City of Tigard, against legal challenges that would have severly limited the ability of local governments to collect systems development charges. The decision not only upheld the Washington County TIF, by provides broad justification for SDCs. The Rogers Machinery decision precludes most, if not all, challenges to SDCs other than challenges that a particular SDC is inconsistent with the statutes or local ordinance. LOCAL IMPROVEMENT DISTRICTS r Martin v. City of Tigard. This firm has helped the City defend the Dartmouth Local Improvement District against repeated appeals and litigation by one set of property owners for a period of more than 10 years. The ultimate court decision is that the Dartmouth LID was properly established and the special assessments were properly calculated and imposed. The litigation now appears to be over, and the Paee 38 City is collecting or has collected its assessments as to all properties within the district. WASHINGTON SQUARE'S VOLUNTARY ANNEXATION TO TIGARD ' The region had long assumed the Portland or Beaverton would eventually annex Washington Square, and the mall itself had a preference for no annexation. While the two other cities traded attacks on each other's service capabilities, on behalf of Tigard we led a negotiation effort with the mall that resulted in the signing of an annexation agreement. The key legal tool was a little-used law that allowed the city to phase in the mall's taxes and target revenues for use in the area of the mall. By understanding the business needs of Washington Square, the service issues in the city, and available legal tools, we were able to achieve a result that the City had thought was not possible. MILWAUKIE GROUNDWATER CONTAMINATION When DEQ cited Milwaukie's water system for the presence of chemical 'pollution, the City's financial exposure was very large, with DEQ seeking heavy fines as well as expensive cleanup costs. DEQ was not cooperative in seeking a resolution that would put the burden on the real wrongdoers, an industrial business in the area that used solvents. Our strategy was to expose the agency's lack of cooperation _ quietly to legislators and to introduce a bill that would have led to legislative hearings on DEQ's treatment of local governments. To avoid this, DEQ negotiated an agreement to reverse its position and use its own funds to gather evidence against the real polluter. With the evidence developed by DEQ we have been able to bring legal action against those responsible to recover Milwaukie's cleanup costs. Page 39 1 1 1 1 1 ~ RAMIS CREW CORRIGAN LLP ' REFERENCES 4 i 1727 N.W. HOYT STREET PORTLAND, OREGON 97209 TELEPHONE: (503) 222-4402 FAX: (503) 243-2944 The following are current clients represented by Ramis Crew Corrigan: 1 City of Milwaukie ' Mike Swanson City Manager City of Milwaukie 10722 SE Main Street Milwaukie, OR 97222-0009 503-659-5171 swansonm@ci.milwaukie.or.us City of West Linn Ken Worcester Parks Director City of West Linn 22500 Salamo Road West Linn, OR 97068 503-657-0331 kworcester@ci. west- ti nn. or. us (Mr. Worcester also has served as Interim City Manager) Additional Contact regarding West Linn ' Ron Garzini 438 NW 19th Street # 16 Redmond, OR 97756 5410504-5958 (Mr. Garzini recently served West Linn as Interim City Manager) South Clackamas Transportation District Shirley Lyons, Administrator South Clackamas Transportation District PO Box 517 Molalla, OR 97038 503-632-7000 slyons@sctd.org Page 41 SECTION 7 PROPOSAL CERTIFICATIONS Non-discrimination Clause ' The Contractor agrees not to discriminate against any client, employee or applicant for employment or for services, because of race, color, religion, sex, national origin, handicap or age with regard to, but not limited to, the following: employment upgrading, demotion or transfer; recruitment or recruitment advertising; layoffs or termination; rates of pay or other forms of compensation; selection for training; rendition of services. It is further understood that any ' contractor who is in violation of this clause shall be bared from receiving awards of any purchase order from the City, unless a satisfactory showing is made that discriminatory practices have terminated and that a recurrence of such acts is unlikely. Agreed by: Timothy V. Ramis c i Finn Name: Ramis Crew Corrigan, LLP Address: 1727 NW Hoyt Street Portland. OR 97209 Resident Certificate Please Check One: ® Resident Vendor: Vendor has paid unemployment taxes and income taxes in this state during the last twelve calendar months immediately preceding the submission of this proposal. Or ❑ Non-resident Vendor: Vendor does not qualify under requirement stated above. (Please specify your state of residence: ) r Officer's signature: 43 Type or print officer's name: Timothy V. Ramis 2005 RFP - General & Labor Attorney 42 SECTION 8 SIGNATURE PAGE The undersigned proposes to perform all work as listed in the Specification section, for the price(s) stated; and that all articles supplied under any resultant contract will conform to the specifications herein, The undersigned agrees to be bound by all applicable laws and regulations, the accompanying specifications and by City policies and regulations. The undersigned, by submitting a proposal, represents that: A) The Proposer has read and understands the specifications. ' B) Failure to comply with the specifications or any terms of the Request for Proposal may disqualify the Proposer as being non-responsive. ' The undersigned certifies that the proposal has been arrived at independently and has been submitted without any collusion designed to limit competition. 4 The undersigned certifies that all addenda to the specifications has been received and duly considered and that all costs associated with all addenda have been included in this proposal: Addenda: No. None through No. None inclusive. - We therefore offer and make this proposal to furnish services at the price(s) indicated herein in fulfillment of the attached requirements and specifications of the City. Name of firm: Ramis Crew. Corrigan, LLP Address: 1727 NW Hoyt Street Portland, OR 97209 Telephone Number: Fax Number: - f (503) 943-2944. By: Date: Q • (Signature of Authorized fficiaL !f partnership, signature of one partner.) Typed Name/Title: Timothy V. Ramis, Partner If corporation, attest: ' (Corporate officer) ❑ Corporation ❑ Partnership ❑ Individual Federal Tax Identification Number (TIN): 93-0878634 2005 RFP - General & Labor Attorney 43 ' ATTACI EVIENT A ACKNOWLEDGMENT OF ADDENDA City of Tigard, Oregon Request for Proposal Attorney Services - General & Labor Close: Wednesday, October 26, 2005 I/WE HAVE RECEIVED THE FOLLOWING ADDENDA: If none received, write "None Received" 1 None Received. 3 2. 4. ' Date Signature of Proposer Pnrrnar Title Ramis Crew Corrigan, LLP Corporate Name 1 1 44 1101 UP -General & Labor Attorney 1 ATTACHMENT B STATEMENT OF PROPOSAL Name of Consultant: Timothy V. Ramis, Ramis Crew Corrigan, LLP Mailing Address: 1727 NW Hovt Street ' Portland, OR 97209 Contact Person: Timothy V. Ramis ' Telephone: 503 222-4402 Fax: 503 24302944 Email: timr@rcclawyers.com ' accepts all the terms and conditions contained in the City of Tigard Request for Proposal for Attorney Services - General & Labor and the attached agreement for attorney services (Attachment C): Signa ure of authorize representative Date Timothy V. Ramis (503) 222-4402 Type or print name of authorized representative Telephone Number Timothy V. Ramis (503) 222-4402 Type or print name of person(s) authorized to negotiate contracts Telephone Number REFERENCES City of Milwaukie (503) 659-5171 Reference #1 Telephone Number City Attorney Mike Swanson, City Manager Project Title Contact Individual City of West Linn (503) 657-0331 Reference #2 Telephone Number City Attorney Kgn Worceettr,Aarks Director nteri.m i y anager Project Title Contact Individual South Clackamas Transportation District (503) 632-7000 ' Reference #3 Telephone Number General Counsel Shirley Lyons, Administrator ' Project Title Contact Individual 45 ' 2001 RFP - General & Labor Attorney I/ RESPONSE OF RAMIS CREW CORRIGAN LLP TO ZOOS GENERAL LEGAL SERVICES QUESTIONS FOR WRITTEN RESPONSE 1) Provide a list of. a. Any and all complaints filed against you with the Oregon State ear (dates involved and a narrative of the outcome including correspondence to and from the State Bar and to and from the complainant); It is this firm's policy to respond quickly and openly to any inquiry or complaint. During the firm's thirty year history, the firm's lawyers have responded to bar filings, typically from adverse parties in litigation or contested case matters, and in all cases the matters have been dismissed as without merit. With this response, we are providing a copy of a letter from the ` Oregon State Bar dated November 15, 2005, listing the number of "entries" and "inquiries" received by the bar regarding the attorneys in the firm. As stated in the letter, "inquiries" are matters brought to the attention of the bar's Client Assistance Office, and "entries" are matters on file with Disciplinary Counsel's Office. The letter from the bar lists a total of 18 "entries" and 1 "inquiry" against the 10 attorneys in the firm, most of whom have been in practice for 25 years or more. All 19 matters were dismissed. Some of these matters occurred some time ago and some may not have been formal complaints. We have not been able to identify all the matters, and have found only one piece of correspondence on the substance of any of the matters. The following provides information on the matters that we have been able to identify. Chuck Corrigan was named in a bar complaint approximately 10 years ago by an opposing party. The complaint was dismissed by the bar as being without merit. Several years ago, in an apparent case of mistaken identity, a complaint was made that Tim Ramis verbally harassed a witness for a state agency. The matter was dismissed when the mistake was made clear. J Some years ago, a complaint was filed that Nancy Tauman had improperly contacted a hearings officer. The complaint was dismissed by the bar as being without merit. About 20 years ago, a bar complaint was filed against Steve Crew by an inmate in the Oregon State Penitentiary alleging that Mr. Crew was unsuccessful in the prisoner's habeas corpus case. The bar dismissed the case as being without merit. The most recent bar complaint we are aware of was filed against Steve Crew by Steve Stoelk, a former client, regarding the fees payable to the firm. The firm had a court order in its favor against Mr. Stoelk for the attorney fees he owed. The bar dismissed the case after reviewing the matter, including the court deeislon awarding the firm its fees. A copy of Steve Crew's letter to the bar disciplinary counsel on the matter is provided with this response. We have requested copies of correspondence maintained by the bar and will provide to the City upon receipt. b. Any potential conflicts as identified in Section 9 of the contract that was included in the RFP document. Describe your plan to eliminate any such conflicts with clients you represent on matters contrary to City interests. We are unaware of any conflicts, potential or actual. We do not and have never represented any other client in a matter in which the City of Tigard was adverse. We will continue to let all our public and private clients know that we represent the City of Tigard and would not act for them in any matter contrary to the City's interests. In the event an existing client has a matter contrary to the City's interests, we would not represent the client on that matter and would take necessary steps, including obtaining a conflict waiver letter, to be able to represent the City in that matter. We would consult with the City Manager or other appropriate representatives as to whether we would need to cease all representation of the other client. c. All felony convictions and misdemeanors involving moral turpitude by any attorney that may be providing services to Tigard. None. J 2) Provide a writing sample from your firm's lead attorney (up to three) being assigned to the City's account that addresses a municipal issue. This sample should demonstrate the attorney's ability to communicate clearly and effectively in writing. Three writing samples are provided. One is the brief this firm filed in the Oregon Supreme Court in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. City of West Linn. The Court issued an opinion in favor of West Linn based on our arguments. The second writing sample is a memorandum we prepared for the West Linn Planning Commission regarding possible code amendments to strengthen that city's code requirements regarding adequate public facilities. The third writing sample is a memorandum to the West Linn City Manager responding to specific questions about annexation. None of the writing samples include materials prepared for the City of Tigard because these materials are already available to the _ City and because most of the recent materials we have prepared for the City are confidential. November 15, 2005 Gary Firestone Ramis Crew Corrigan Bachrach 1727 NW Hoyt St Portland, OR 97209 Re: Attorney Information. Dear Mr. Firestone: In response to your request of November 15, the Bar's records reflect the following: NAME, BAR Timothy V. Ramis, 75311 CURRENT STATUS: Active ADMIT DATE: September 19, 1975 LAW SCHOOL: University of Oregon NO. OF ENTRIES AND OUTCOME: 1 Entry: Dismissed NO. OF INQUIRIES AND OUTCOME: 0 Inquiries NAME, BAR Stephen F. Crew, 78171 CURRENT STATUS: Active ADMIT DATE: September 18, 1978 LAW SCHOOL: Northwestern School of Law NO. OF ENTRIES AND OUTCOME: 3 Entries: All 3 Dismissed NO. OF INQUIRIES AND OUTCOME: 1 Inquiry: Dismissed NAME, BAR Charles E. Corrigan, 76108 CURRENT STATUS: Active ADMIT DATE: September 24, 1976 LAW SCHOOL: University of Oregon NO. OF ENTRIES AND OUTCOME: 3 Entries: All 3 Dismissed NO. OF INQUIRIES AND OUTCOME: 0 Inquiries NAME, BAR Gary Firestone, 87221 CURRENT STATUS: Active ADMIT DATE: September 25, 1987 LAW SCHOOL: University of Arizona NO. OF ENTRIES AND OUTCOME: 0 Entries NO. OF INQUIRIES AND OUTCOME: 0 Inquiries NAME, BAR Dominic Q. Colletta, 95069 [Click and insert recipient name] [Click and Insert Date] Page 2 CURRENT STATUS: Active ADMIT DATE: April 21, 1995 LAW SCHOOL: Loyola University NO. OF ENTRIES AND OUTCOME: 0 Entries NO. OF INQUIRIES AND OUTCOME: 0 Inquiries NAME, BAR John C. Pinkstaff, 75308 CURRENT STATUS: Active ADMIT DATE: September 19, 1975 LAW SCHOOL: University of Puget Sound .NO.OF ENTRIES AND OUTCOME: 6 Entries: All 6 Dismissed NO. OF INQUIRIES AND OUTCOME: 0 Inquiries NAME, *$AR Nancy Tauman, 78397 CURRENT STATUS: Active ADMIT DATE: September 18, 1978 LAW SCHOOL: Northwestern School of Law ` NO. OF ENTRIES AND OUTCOME: 2 Entries: Both Dismissed NO. OF INQUIRIES AND OUTCOME: 0 Inquiries NAME, BAR T. Chad Plaster, 98092 _ CURRENT STATUS: Active ADMIT DATE: May 6, 1998 LAW SCHOOL: Northwestern School of Law NO. OF ENTRIES AND OUTCOME: 1 Entry: Dismissed NO. OF INQUIRIES AND OUTCOME: 0 Inquiries NAME, BAR William A. Monahan, 86075 CURRENT STATUS: Active ADMIT DATE: April 25, 1986 LAW SCHOOL: Northwestern School of Law NO. OF ENTRIES AND OUTCOME: 2 Entries: Both Dismissed NO. OF INQUIRIES AND OUTCOME: 0 Inquiries NAME, BAR Nelson Walker, 79434 CURRENT STATUS: Active ADMIT DATE: September 18, 1979 LAW SCHOOL: Northwestern School of Law NO. OF ENTRIES AND OUTCOME: 0 Entries NO. OF INQUIRIES AND OUTCOME: 0 Inquiries [Click and insert recipient name] [Click and Insert Date] Page 3 The term "inquiries" refers to matters that are brought to the attention of the bar's Client Assistance Office. These may include questions clients or other members of the public have about a lawyer's conduct, or requests for assistance from a member of the public who is having a problem with a lawyer. The term "entries" refers to matters on file with the bar's Disciplinary Counsel's Office. These may include complaints made about a lawyer's conduct, notices from banks regarding the manner in which a lawyer has handled his or her lawyer trust account, or investigations initiated by the bar. Further information about how each inquiry or entry was resolved or concluded is public record and available for review by appointment. Copies are available at .25 per page. Requests for public record information should be sent to the bar's Public Records Clerk. I hope this information is responsive to your request. Sincerely, Daniel Stevens Public Records Clerk Oregon State Bar RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW 1727 NW HOYT STREET PORTLAND, OREGON 97209 TELEPHONE (503) 222-4402 Stephen F. Crew FAX (503) 243-2944 stevec eeb.com WWW.RCCB.COM February 26, 2004 Via Hand Delivery Scott A. Morrill, Assistant General Counsel Oregon State Bar PO Box 1689 5200 S.W. Meadows Road Lake Oswego, OR 97035-0889 RE: Steplin*Stoelk Dear Mr. Morrill: ` Thank you for the additional time to respond to Mr. Stoelk's letter. I am happy to respond to Mr. Stoelk's concerns in an effort to resolve this matter. I appreciate the fact that you have Judge Van Dyk's opinion. (Exhibit 1). However I would, at the outset like to note that each issue that Mr. Stoelk has raised in this letter to the Bar he also raised in the trial before Judge Van Dyk. Attached as Exhibit 2 is Mr. Stoelk's "Amended Answer, Affirmative Defenses. and Counter Claims of Defendants Stephen L. Stoelk, Shanna L. Stoelk and B.A.S.S. Construction Company, Inc.", upon which the case was tried. Mr. Stoelk asserted eight separate affirmative defenses which included Failure of Consideration, Misrepresentation, Equitable Estoppel, Unconscionability, Recoupment, Good Faith and Fair Dealing, Breach of Fiduciary Duty and Recision. He also alleged five counterclaims including Breach of the Implied Covenant of Good Faith and Fair Dealing, Breach of Fiduciary Duty, Recision, Attorney Fees and Interference with Economic Relations. The specifics of the pleadings make it clear that each of the issues he raises now he also raised then. Mr. Stoelk argues in his letter that the firm charged him excessive interest rates and/or late fees. That issue was raised in paragraph 49(G) of his pleading. Mr. Stoelk argues in his letter to the Bar that the firm's billing statements were confusing, inconsistent and he could not understand them. That issue was raised in paragraph 49 (A)(B)(C)(D)(E)(F)(G)(H) of his pleading. Mr. Stoelk in the letter states that his fee in the West Coast Bank matter was excessive. That issue was raised in paragraphs 37, 44, 45, 46, 48, 49, 52 and 54. Mr. Stoelk argues in his letter that the firm breached its fiduciary duties. That issue was raised in paragraphs 52 and 53 of his pleading. Mr. Stoelk argues in his letter that the firm did not account for all of the monies he paid. That issue was raised in paragraph 49 of the pleading. Mr. Stoelk argues in his letter that the firm misrepresented the meaning of the term "profit" in the legal fee agreement. That issue was raised in paragraphs 39-43 of the pleading. Further, Judge Van Dyk did not merely make a general finding in the law firm's favor. Rather, he issued a 15 page opinion that specifically and expressly addressed each and every Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 2 Affirmative Defense and Counterclaim. Given that Judge Van Dyk had the benefit of 3 days of trial, extensive briefs as well as live witnesses, including experts, we believe his ruling is entitled to significant weight. BACKGROUND In July of 2000, my firm Ramis Crew Corrigan & Bachrach merged with Hibbard Caldwell & Schultz. Mr. Stoelk had been a client of the Hibbard Caldwell firm since the early 1990s. Hibbard Caldwell had represented Mr. Stoelk, his wife and his various corporations on over 40 different matters over the years. Most of these matters dealt with the purchase, sale and development°ofTeal property. Most of these matters were handled by Paul Schultz. In July of 2000, I was asked by Mr. Schultz to take over the representation of Mr. Stoelk and one of his companies, B.A.S.S. Construction, in a lawsuit brought by Gordon Thompson. Mr. Thompson was a developer that purchased a subdivision from Mr. Stoelk. Mr. Thompson alleged that Mr. Stoelk had breached the sale agreement. I first met with Mr. Stoelk and Mr. Schultz in July of 2000. At this meeting I learned that Mr. Stoelk had outstanding receivables to the Hibbard Caldwell firm of over $35,000. I also learned that Mr. Stoelk had fallen on hard times because of the failure of a development project on the Coast referred to as Cascade Head Development. I asked Mr. Stoelk how he was going to pay the firm for the Gordon Thompson matter. Mr. Stoelk stated that he would make a $10,000 payment that day with $5,000 going to reduce his outstanding balance with the Hibbard Caldwell firm and $5,000 as a retainer for Ramis Crew on the Gordon Thompson matter. He also indicated he was going to get a second mortgage on his home in Sunriver to finance the Gordon Thompson litigation. I then proceeded to represent Mr. Stoelk in the Gordon Thompson matter. The Thompson matter was bifurcated for trial. The first phase was Mr. Thompson's claims against Mr. Stoelk and his company. The second phase was Mr. Stoelk's claims against the real estate brokers involved in the transaction. Phase one was tried in August of 2000. By the end of 2000, Mr. Stoelk had been billed approximately $42,000 on the Gordon Thompson matter. He had made no payments since the initial $5,000 retainer. He also made no further payments to the Hibbard Caldwell firm on their receivable. As a result, he had past due bills to the two firms for over $70,000. In January of 2001, I was asked by Mr. Schultz and Mr. Stoelk to take over the representation of Mr. Stoelk in a lawsuit brought by West Coast Bank arising out of the failed Cascade Head Development. The bank was seeking $3.5 million on a promissory note that was personally guaranteed by Mr. Stoelk and his wife. My first involvement of the case was defending Mr. Stoelk's deposition in January of 2001. FRAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW 1 X141 . Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 3 GRESHAM REIMBURSEMENT DISTRICT Because Mr. Stoelk was seriously in arrears to the two firms, Mr. Stoelk agreed with Mr. Schultz that he would assign to the firm his interest in the City of Gresham Reimbursement District. Mr. Stoelk has asserted that this represents a $700,000 asset. That is incorrect. Although it may have cost $700,000 to install the sewer, for several reasons there was never an expectation that he would receive more than $70,000. As part of the Reimbursement District agreement with the City, Mr. Stoelk agreed to pay the City for the costs of acquiring easements for the sewer line. (Exhibit 3). This cost is taken directly out of the Reimbursement District payments. In addition, the agreement also provides that the amount allocated to the developers property is-not eligible for reimbursement. (Exhibit 3). In addition, much of the property included in the district is park property. As such it will not be developed, and therefore will have no sewer hookups. Finally, the assignment of the Reimbursement District to the law firm by Mr. Stoelk was later modified so that the payments are split 50/50 between the law firm and a 'judgment creditor of Mr. Stoelks. (Exhibit 4). As a result of all of the above, Mr. Stoelk and Mr. Schultz estimated that the Reimbursement District would result in approximately $70,000 to Mr. Stoelk. Regardless of the value of the Reimbursement District, the agreement was that Mr. Stoelk would assign his right to receive payments to the firm. If, and when, the payments satisfied his outstanding bills, the firm would assign the Reimbursement District back to him. Mr. Stoelk asserts that he has never been given an accounting of the payments received by the firm pursuant to the City of Gresham Reimbursement District. This is demonstrably false. On every occasion the firm received a payment from the City of Gresham, that payment was subsequently reflected as a credit on billing statements sent to Mr. Stoelk. Thus, Mr. Stoelk got an accounting every month on his billing statements. In addition, as a result of the litigation between Mr. Stoelk and our firm, Mr. Stoelk and his attorney were given a complete and full accounting of all City of Gresham payments through the discovery process. Finally, at the trial before Judge Van Dyk we again provided a full and complete accounting of all payments made by Mr. Stoelk to our firm, including the payments from the City of Gresham. Mr. Stoelk assigned the reimbursement rights to the firm on May 22, 2001 (Exhibit 5). The firm stopped billing Mr. Stoelk in April of 2002 because he was represented by Mr. Todd. During the period from May, 2001, to April, 2002, the City of Gresham made 7 payments, totaling $41,302.03. The date the payments were received and the amount of each payment is as follows: Date Amount May 31, 2001 $16,628.01 July 23, 2001 $16,024.05 August 21, 2001 $2,386.18 November 29, 2001 $4,286.00 February 11, 2002 $886.63 RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 4 March 14, 2002 $1,091.16 During the same period of time (May, 2001, to March, 2002), Mr. Stoelk received monthly billing statements from the firm (Exhibit 6, 7, 8, 9, 10, 11, 12, 13 and 14). These statements show that the payments from the City of Gresham were credited to Mr. Stoelk's various accounts. Mr. Stoelk received a full accounting from May, 2001, through April, 2002. Mr. Stoelk also received a full and complete accounting in the accounting records produced during discovery. The firm produced over 800 pages of accounting records on all of Mr. Stoelk's matters, from both the Ramis Crew and Hibbard Caldwell firms. Among the documents produced during discovery were the same billing statements that had previously been sent to Mr. Stoelk, which statements reflected the payments from the City of Gresham as credits on Mr. Stoelk's accounts. (Exhibits 15, 16, 17, 18, 19, 20, 21, 22 and 23). These Exhibits bear the document control numbers indicating they were produced in discovery. After Mr. Stoelk's attorney, Richard Todd, reviewed the accounting documents, he advised the firm's attorney, Ward Greene, that he had additional questions about the accounting records. As a result, Mr. Greene arranged for Mr. Todd to come to the Ramis Crew office to review documents and meet with the firm's accounting staff. (Exhibit 24). My staff was instructed by Mr. Greene to provide Mr. Todd with whatever accounting documents he requested, and to answer any questions he had about the accounting records. On April 9, 2003 Mr. Todd came to our office and reviewed documents, including accounting documents. Mr. Todd specifically asked for and was given a "Client Account History" (Exhibit 25). This document details Mr. Stoelk's billing and payments on several matters. Specifically, the document shows several "client payments" credited to Mr. Stoelk's various accounts. Mr. Todd specifically asked about these "client payments" and was told they were the payments made by the City of Gresham. He then asked for copies of all of the City of Gresham checks. He was provided with copies of all of the actual checks received from the City of Gresham through that date. (Exhibit 26). The handwritten notations on these checks show which matters these payments were applied to. At one point during the litigation Mr. Todd asserted that he did not have all of the accounting records. As a result, Mr. Greene responded by filing the affidavit of my legal assistant detailing the efforts to provide Mr. Todd with unfettered access to our accounting records. (Exhibit 27). Finally, because Mr. Stoelk raised questions about the accounting in his pleadings, we again at the trial provided a full and complete accounting of all payments from Mr. Stoelk - including the payments from the City of Gresham. During the trial Mr. Stoelk purported to be confused by the firm's billing because he would on occasion receive two bills on the same matter showing different amounts. The reason for this, obviously known to Mr. Stoelk, was that at the time Hibbard Caldwell and Ramis Crew merged, Mr. Stoelk had past due account receivables on several matters with Hibbard Caldwell. After the merger, the new firm continued to work on RAMIE CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 5 several of these same matters. Thus, Mr. Stoelk would get a bill from Hibbard Caldwell for past due fees on a given file, and he would get a bill from the new firm because it continued to represent him on that matter. Because of the potential for confusion, Mr. Greene requested that our accounting department prepare spreadsheets on those matters for which Mr. Stoelk got a billing from the old firm and one from the new firm. Exhibit 28 is a spreadsheet showing the account history on the Thompson matter for both Hibbard Caldwell and Ramis Crew. The matter number on the Thompson case for Hibbard Caldwell is No. 037. The matter on the Thompson matter for Ramis Crew is No. 37. The document shows all billings for both firms. It also shows all payments to both firms. - It clearly shows the dates and amounts of City of Gresham payments and how the payments were applied to Mr. Stoelk's various matters. This document was provided to Mr. Stoelk and his lawyer at trial and was actually admitted as Plaintiffs' Exhibit No. 25 at trial. Similar documents, Exhibit 29, for the "General Corporate" matter, and Exhibit 30 for the "General" matter were also provided to Mr. Stoelk and his attorney, and were admitted as exhibits during trial. Since the trial, there have been two additional payments from the City of Gresham, one on July 14, 2003 for $3,823.71 and one on February 9, 2004 for $9,123.64. Pursuant to Mr. Greene's advice, these payments were put in our trust account pending resolution of this matter with Mr. Stoelk. Despite the fact that Mr. Stoelk and his attorney have repeatedly received full and complete accountings throughout these proceedings, I requested my accounting department to once again prepare an accounting current through today's date, for all payments made on Mr. Stoelk's behalf, including the City of Gresham payments. This document is attached as Exhibit 31, and covers the period from June of 1998 through today. It shows the date of each payment, the payee, the check number, the payor and the amount. It also reflects which accounts the payments were applied to, including the client and matter number. In short, Mr. Stoelk's contention that he has not received an adequate accounting is without merit. Mr. Stoelk also argues that the Reimbursement District payments were assigned to the firm for only certain specific claims. However, there is no such restriction in the assignment document. (Exhibit 5). Mr. Stoelk also contends that Judge Van Dyk ruled that the firm is required to assign back the reimbursement rights to him. The Court made no such ruling. Further, the Legal Fee Agreement specifically addresses the circumstances under which the firm is required to reassign the reimbursement rights to Mr. Stoelk: "As of November 1, 2001, the client owes the firm $51,755 plus accrued fees and late charges for legal services not provided in connection with the lawsuit (the "outstanding balance"). The outstanding balance does not include amounts owing RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 6 to the former law firm of Hibbard Caldwell & Schultz. The client has assigned to the firm the client's rights to receive payments from the City of Gresham pursuant to the Reimbursement Agreement for Sam Barlow Mountain View Estates. The outstanding balance shall continue to be reduced by any amounts the firm receives pursuant to that Reimbursement Agreement. When the client receives the final payment from any settlement, judgment or sale of the option, the client shall pay whatever outstanding balance may still be owed to the firm, and the firm will assign to the client any remaining rights under the Reimbursement Agreement for Sam Barlow Mountain View Estate." Pursuant to this agreement, the firm is required to reassign the reimbursement rights to Mr. Stoelk only after he pays the fees under the Legal Fee Agreement. Mr. Stoelk has not paid the fees. Once he does, the firm will of course comply with the agreement and reassign the reimbursement rights to him. We are willing to transfer the funds we are holding in our attorney's trust account to Mr. Stoelk's attorney's trust account, on the understanding that they would be distributed pursuant to either a final settlement between the parties, or a final judicial ruling on the parties' outstanding disputes, including any appeals. WEST COAST BANK In January of 20011 was asked by Paul Schultz and Mr. Stoelk to take over the representation of Mr. Stoelk, his wife and Mr. Stoelk's company in a lawsuit brought by West Coast Bank. The bank was suing Mr. Stoelk for over three and a half million dollars on a promissory note arising out of a development project on the Oregon Coast known as Cascade Head. There was no dispute that Mr. Stoelk had defaulted on the loan. There also was no dispute that Mr. Stoelk and his wife had personally guaranteed the loan. Mr. Stoelk told me that he thought he had a potential counterclaim against the bank for breach of a loan commitment. I was advised that the bank's lawyers wanted to depose Mr. Stoelk. My first involvement in the case was when I represented Mr. Stoelk at his deposition, held on January 12, 2001. Shortly after Mr. Stoelk's deposition, the bank filed a motion for summary judgment seeking summary judgment on its claims for breach of the promissory note. To respond to the bank's motion it was necessary to review thousands of pages of documents and deposition transcripts in a short amount of time. To accomplish this the firm assigned three lawyers and two paralegals to work on the case. The bank was represented by two firms, Graham & Dunn from Seattle and the Portland firm of Cable Huston Benedict. On April 30, 2001, I sent Mr. Stoelk a bill for the work done in opposing the bank's summary judgment motion. The bill was for $18,363.50 in fees and $2,311.50 in costs, for a total bill of $20,675 (Exhibit 32). At this time, Mr. Stoelk was in arrears to the merged Hibbard Caldwell/Ramis Crew firm for over $43,000 on the Gordon Thompson matter. He was also in RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 7 arrears to the pre-merger Hibbard Caldwell firm for over $30,000. Mr. Stoelk had outstanding receivables to the two firms totaling over $93,000, much of it long overdue. On May 1, 2001 the court denied the bank's motion for summary judgment. The bank's lawyer, Jim Fowler, advised me the bank was going to file a second motion for summary judgment, seeking dismissal of Mr. Stoelk's counterclaim. Soon thereafter, I told Mr. Stoelk that the firm could not continue to represent him without getting paid. Mr. Stoelk told me that he could not pay his outstanding legal bills, and could not pay for future work on the West Coast Bank matter. He asked if the firm would change the fee arrangement on West Coast Bank matter to a contingent fee. I told him I thought the firm would be reluctant to take the case on a contingent fee. This case was seen as particularly risky because Mr. Stoelk was a defendant - not a plaintiff. Therefore, any contingent fee was to come from a potential recovery on a counterclaim. I advised Mr. Stoelk that I would need to get the approval from my partners for any contingent fee agreement. t, On May 8, 20011 reviewed the case with my partners at a partnership meeting. My partners had several concerns. First, we had never taken a case on a contingent fee basis where the firm was representing a defendant, with the contingent fee based on a counterclaim. My partners were also concerned that in addition to the firm's time there would be significant out-of- pocket expenses for expert witnesses, such as an appraiser and damages expert. My partners were also concerned that in the event the bank at some point offered to settle the case by dismissing its claims in exchange for Mr. Stoelk dismissing his counterclaims, that Mr. Stoelk would accept such an offer. In that event, Mr. Stoelk would be relieved of a $3.5 million liability but there would be no contingent fee because Mr. Stoelk would have dismissed his counterclaims. After much discussion, my partners agreed to take the case on a contingent fee. My partner, Jeff Bachrach, prepared a memorandum to Mr. Stoelk outlining the terms (Exhibit 33). On May 22, 2001, I met with Mr. Stoelk to discuss his outstanding bills to the two firms, the assignment of the Reimbursement District rights and the contingent fee agreement on the West Coast Bank matter. Mr. Stoelk agreed to our contingent fee proposal. He also signed the Assignment of the Reimbursement District. (Exhibit 5). In July and August of 2001 the firm began preparing the West Coast Bank case for trial. We subpoenaed documents from third parties and obtained documents from the bank in discovery. We also reviewed Mr. Stoelk's voluminous files on the project, and retained experts to appraise the property and prepare a damage report. In August of 2001, the bank filed its second motion for summary judgment, this one seeking summary judgment on Mr. Stoelk's counterclaims. Responding to the bank's motion again required extensive review and analysis of thousands of pages of documents and hundreds of pages of depositions. Around this time the bank hired a third law firm, Hoffman Hart & Wagner, to assist the bank in prosecuting and defending this lawsuit. My firm had three lawyers and three legal assistants working on the case. During this time, the parties agreed on a deposition schedule and a trial date. The case was set RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 8 for trial in early 2002. On September 17, 2001, the court denied the bank's second motion for summary judgment. Soon thereafter, Jim Fowler, one of the bank's attorneys, called me and broached the issue of settlement. Mr. Fowler indicated that the bank might be interested in settling the case, either by selling the property to Mr. Stoelk or by granting Mr. Stoelk an option to purchase the property. In exchange for the option, Mr. Stoelk would have to agree to dismiss his claims against the bank, whether or not he exercised the option. I advised Mr. Stoelk of my discussion with Mr. Fowler: Mr. Stoelk indicated he would be interested in pursuing further negotiations as he felt he could either develop the property, or exercise or sell the option. The fee agreement that had been reached in May of 2001 did not anticipate the possibility of Mr. Stoelk purchasing the property. Therefore, Mr. Bachrach and I determined that the fee agreement should be revised to reflect that possibility. Mr. Bachrach prepared another fee • agreement taking into consideration the possibility of Mr. Stoelk receiving an option on the property, and then either developing the property or selling the option. This agreement was basically the same as the May 17, 2001, document, except that it covered the possibility of a sale or option to Mr. Stoelk. It provided as follows: 664. In lieu of a monetary payment from the bank to settle the lawsuit, the Client may accept an option to purchase the property. It is the intent of the parties that, if the Client accepts an option to purchase the property, the Client would exercise the option and then sell the property. If that happens, then the Client shall pay the Firm the greater of the Firm's legal bill based on the enhanced hourly rates or 37% of the profit earned on the sale of the property. 5. If the Client accepts an option to purchase the property, but, then decides to either develop the property or otherwise maintain any ongoing interest in the property, then the Firm and the Client will determine the fair market value of the property, and the Client will owe the Firm the greater of the Firm's legal bill based on the enhanced hourly rates or 50% of the difference between the option prices and the fair market value." In October of 20011 met with Mr. Stoelk and gave him a copy of the proposed fee agreement. After reviewing the document, Mr. Stoelk asked me if the firm would reduce its contingent fee percentage from 40% to 37% in the event the case went to trial. I told him I would review that with my partners. As a result of that meeting, I talked with several of my partners and we agreed that the firm would reduce its percentage from 40% to 37%. 1 changed the agreement accordingly. My office faxed the revised agreement to Mr. Stoelk on October 30, 2001 (the revised agreement, the fax cover sheet and the faxed confirmation sheet are attached as RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 9 Exhibit 34). From October 30, 2001 until November 30, 2001 Mr. Bachrach and I asked Mr. Stoelk several times to return the signed fee agreement. Each time he said that he had forgotten to do so, and promised to return it. On November 30, 2001, Mr. Stoelk finally returned the fee agreement that we had given him a month earlier. However, Mr. Stoelk has made several changes to the fee agreement (Exhibit 35), which he explained in his cover letter (Exhibit 36). Specifically, he changed paragraph 7, which provided that he would pay all past due accounts to both Hibbard Caldwell and Ramis Crew: He also changed paragraph 6, which provided that he would pay all costs incurred in the litigation. After we received Mr. Stoelk's proposed revisions, Mr. Bachrach and I had a conference call with him. We advised him that his proposed changes to paragraph 7, which provided that the firm would pay the litigation costs, was acceptable. We told him that his change to paragraph 7 which provided that he did not have to pay the Ramis Crew firm for his past due accounts was not acceptable. Mr. Stoelk agreed. We concluded the conference call by agreeing that the firm would draft the revised agreement incorporating the changes that we had discussed and agreed upon. Mr. Stoelk signed the revised agreement in our office in early December 2001. (Exhibit 37). Excessive Fee At bottom, Mr. Stoelk's complaint is that the firm's contingent fee agreement on the West Coast Bank case resulted in a fee that is excessive, and therefore unreasonable. This, of course, was also the essence of his claim at trial. To that end at the trial, Mr. Stoelk asserted every conceivable legal theory, including the affirmative defenses of Failure of Consideration, Misrepresentation, Equitable Estoppel, Unconscionability, Recoupment, Breach of the Implied Covenant of Good Faith and Fair Dealing, Breach of Fiduciary Duty and Rescission. He also asserted counterclaims for Intentional Interference With Economic Relations, Rescission, Breach of Fiduciary Duty and Breach of the Implied Covenant of Good Faith and Fair Dealing. In the process, Mr. Stoelk made scurrilous allegations against me and my partners, including fraudulent billing. Every issue that Mr. Stoelk has raised in his letter to the Bar was raised and decided against him in the trial before Judge Van Dyk. Judge Van Dyk had the benefit of extensive briefs and the live testimony of witnesses, including expert witnesses, over a three day trial. Mr. Stoelk was represented by competent counsel. In ruling against Mr. Stoelk, Judge Van Dyk issued a 15 page opinion in which he specifically addressed and disposed of each of Mr. Stoelk's affirmative defenses and counterclaims. In his opinion, Judge Van Dyk gave particularly careful consideration to Mr. Stoelk's assertion that the contingent fee agreement resulted in a fee that is excessive. In addition to the testimony of the parties, the judge heard the testimony of two expert witnesses. In that regard, he wrote: RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 10 "Plaintiff presented the testimony of a well qualified business litigation attorney, David Markowitz, to support its position that the amounts due the law firm under the Agreement is reasonable in light of the circumstances existing at the time the contract was signed. His testimony was persuasive. To support a contrary conclusion, defendants relied upon the testimony of Jeffrey Bowersox, a lawyer whose experience with similar such business litigation is modest by comparison. His testimony was not persuasive." The court also commented on the credibility of the parties: "Although it is not necessary to this decision, it should be noted that Mr. Bachrach testified credibly that he spoke several times with Mr. Stoelk about the terms of the Legal Fee Agreement and that Mr. Stoelk well understood its terms. In contrast, Mr. Stoelk did not present credible contrary testimony at trial on this issue. Mr. Crew testified quite credibly that the research was not related to the law firm's lien for nonpayment under the Legal Fee Agreement, but this determination does not depend on evaluating the credibility of witnesses." Judge Van Dyk ruled that the Legal Fee Agreement was not unconscionable, that it did not breach the implied covenant of good faith and fair dealing, that there was no failure of consideration, that there was no misrepresentation and there was no breach of fiduciary duty. He also ruled that the equitable defenses of equitable estoppel and recoupment failed as a matter of law. After disposing of Mr. Stoelk's affirmative defenses and counterclaims, the court then applied the factors set forth in DR 2-106(B) to determine if the fee was reasonable. Specifically, the court applied DR 2-106(B)(1): "The first factor set forth in DR 2-106(B) addresses the skills requisite to perform the services. The lawsuit with the Bank required a high level of skill. Such disputes typically involve a complicated weave of law and facts numerous pretrial motions, lots of depositions and documents, and trials that last several day and sometime weeks. This one could be expected to follow a similar pattern, with the only exception that numerous depositions had already been taken in the Fisher lawsuit. Still, a prudent lawyer would be required to read and analyze those deposition, take additional depositions and engage in further discovery to address facts and law unique to the case at bar." (Emphasis added.) The court also commented: "Mr. Crew himself is an experienced litigator who is competent to prosecute and RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 11 defend such suits." The court also made the following observation about the time and labor required in a suit of this nature: "The time demands in such `lender liability' lawsuits are great and tend to preclude other employment. DR 2-102(B)(2). As plaintiffs expert testified, fees in such lawsuits often involve hundreds of thousands of dollars and such fees are justified by the dollar amounts in dispute. DR 2-102(B)(3). Defendants' expert had so little relevant experience to support a contrary conclusion that his testimony cannot be given any weight." DR 2-106(B)(4) deals with the amount in controversy and the results obtained. Both Mr. Markowitz and the court emphasized this factor. The court stated: "The result obtained in the lawsuit was outstanding. Dr 2-102(B)(4). By his own testimony, Mr. Stoelk faced financial ruin because of the $3.5 million deficiency claim being asserted against him. To place the actual results in perspective, consider that, when Mr. Stoelk's original seller, Walt West, completed a - foreclosure that appeared as though it might end Mr. Stoelk's involvement with legal proceedings and the Cascade Head development without such personal liability, Mr. Stoelk was thrilled. Instead of that result, not only did Mr. Stoelk avoid personal liability, Mr. Stoelk was able to repurchase the property for $1.55 million and resell is for $3.3 million. Thus after pUing the fees under the Legal Fee Agreement, he improved his position by over $1 million" (Emphasis added). The final factor the court applied under DR 2-106(B)(8) is whether the fee was fixed or contingent: "The last factor addresses the contingent nature of the fee. DR 2-102(B)(8). It is important because the court must take account of the fact that the law firm had a substantial risk of not being paid at all under the Legal Fee Agreement. If either the Bank or Mr. Stoelk refused to settle when the trial was lost, the law firm itself would have suffered a substantial negative financial impact. Having considered the factors set forth above and the commercial background of the case, as a matter of law the Legal Fee Agreement is not excessive." (Emphasis added). When Mr. Stoelk asked our firm to handle this case on a contingent fee he could not pay for the legal services he was receiving. At the time we agreed to take the case on a contingent RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 12 fee, there had been no settlement discussions and no reason to think the case would settle. Mr. Stoelk was in arrears to the two firms for over $90,000. The bank was suing him on a note for $3.5 million. There was no dispute that Mr. Stoelk borrowed the money and did not repay it. There was also no dispute that he and his wife had personally guaranteed the loan. The end result of our firm's representation of Mr. Stoelk on this matter is an economic benefit to him of $5,250,000. First, as a result of the settlement Mr. Stoelk was not required to pay back the loan or the interest on that loan. This amounted to a forgiveness of a $3.5 million debt. Second, Mr. Stoelk made a profit of $1,750,000 on the sale of the option. Viewed from this perspective, the fee in this case was 12 % of the total economic benefit achieved for Mr. Stoelk. Profit Calculation The fee agreement clearly provides that if Mr. Stoelk settled with West Coast Bank, and thereby received an option to purchase the land, and then sold the land or the option, the law firm 4 would receive 37% of the profit. That is precisely what happened. Mr. Stoelk received an option from the bank to purchase the land for $1.55 million. Mr. Stoelk then sold the option to Jeff Teeney for $3.3 million. As a result, Mr. Stoelk made a profit of $1.75 million. Under the fee agreement, the law firm was entitled to 37% of the profit. At trial and in his letter to the Bar, Mr. Stoelk argues a different interpretation of the term "profit" in the agreement. Mr. Stoelk argues that he lost $1.8 million on the Cascade Head Development property. As a result, before there would be any "profit" he would have to first get his $1.8 million back. Anything recovered above the $1.8 million would be "profit" of which the firm would get 37% of. In other words, according to Mr. Stoelk, despite a $1.75 million recovery there is no "profit" and thus no fee. Mr. Stoelk admitted that he never communicated this interpretation of the term profit to anyone at the firm. Moreover, Mr. Stoelk's interpretation has now been rejected as a matter of law by two circuit court judges. First, Circuit Court Judge Pro Tern Roderick Boutin heard Ramis Crew's motion for summary judgment. The issue raised by that motion was precisely the issue that Mr. Stoelk raises here (i.e., what does the term "profit" mean in the fee agreement). Judge Boutin rejected Mr. Stoelk's interpretation and ruled that the fee agreement was unambiguous. A copy of Judge Boutin's ruling is attached as Exhibit 38. After losing at summary judgment on this issue, Mr. Stoelk moved for reconsideration at the trial before Judge Van Dyk. Judge Van Dyk did reconsider the issue, and after hearing all of the evidence, concluded that Judge Boutin's ruling was correct: "After hearing the evidence at trial, including evidence heard over objection of Mr. Stoelk's understanding of the phrase, there is no reason to disturb Judge Boutin's ruling. Mr. Stoelk does not dispute that the Legal Fee Agreement was an integrated writing; rather, at trial, Mr. Stoelk testified that he understood the term RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 13 "profit" to mean the difference between the amount of money received upon a sale of the property and all of the costs he incurred in connection with the development of the property, including such things as engineering and other development fees and costs, dating to the beginning of the project. Mr. Stoelk admits that he never communicated such an understanding to the law firm at any time during the negotiations leading to the Legal Fee Agreement. He testified that he obtained his understanding of the meaning of the word "profit" from another lawyer in the law firm, a business lawyer who was not involved in the litigation. Mr. Stoelk testified that the business lawyer had used such a definition in connection with an unrelated transaction that was not contemporaneous with the Legal Fee Agreement, but again, Mr. Stoelk concedes that at no time did he ever communicate such an understanding to the lawyers involved with the lawsuit. Mr. Stoelk's testimony contradicts the language of the writing. Paragraph 5 of the Legal Fee Agreement clearly describes the minuend and subtrahend of the profit calculation in a context similar to what occurred: Addressing the prospect that Mr. Stoelk might be granted an option, exercise the option, then elect to develop the property himself, paragraph 5 states that the law firm will be entitled to receive "the difference between the option price and the fair market value." (Ex. 107). To address Mr. Stoelk's uncommunicated understanding, the phrase would read something like: "the difference between the option price, plus all costs incurred to date in connection with the development, and the fair market value." In addition to the forgoing, paragraph 6 of the Legal Fee Agreement addresses the matter of expenses that must be taken into account upon a "sale of the option." Those expenses are limited to "expenses incurred relating to the lawsuit." After paying only those expenses, the Legal Fee Agreement directs that "the parties will split the remainder based upon the percentage set out above." In addition to two circuit court judges ruling that the document is unambiguous, Mr. Stoelk's own words show he clearly understood its plain meaning. Mr. Stoelk's letter dated November 30, 2001, which accompanied the signed fee agreement states: "As you see the changes relate to the dollar amount that your firm will make based upon the agreement with the Bank and a sale to the Teeney group. Just using the dollar amounts we have been rattling around. A possible difference of $1,800,000 should be attained between the Bank number and the Teeney number. Your firm will receive $666,000. Based upon that I would receive $1,134,000. After having spent over $1,800,000 plus interest and attorney fees that is a loss to me of over $2,000,000. Your firm has spent and incurred substantially less than that to date on all of my various problems. I do not feel this is an unreasonable RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 14 agreement for either of us. I hope you agree. If all goes as it feels, we should both have funds within a couple of months and be happy with everything." Breach of Fiduciary Duty Mr. Stoelk also states that the firm breached its fiduciary duties by failing to disclose the firm's financial interest in the contingent fee agreement. He also asserts that we failed to explain the fee agreement and that he did not understand the agreement. Each of these contentions was made in the trial, and each was addressed by Judge Van Dyk. As to whether or not Mr. Stoelk understood the agreement, Judge Van Dyk stated: "Although it is not necessary to this decision, it should be noted that Mr. Bachrach testified credibly that he spoke several times with Mr. Stoelk about the terms of the legal fee agreement and that Mr. Stoelk well understood its terms. In contrast, Mr. Stoelk did not present credible contrary testimony at trial on this issue." Judge Van Dyk also stated: "Again, Mr. Stoelk's letter dated November 30, 2001 shows he understood quite well the terms of his arrangement with the law firm. (Exhibit 123). Assuming a settlement would occur with the Bank, he writes that, after paying attorney fees on the order of $666,000, he would suffer a loss `of over $2 million.' With regard to the law firm's fee, he writes: `Your firm has spend and incurred substantial less than that to date on all of my various problems.' And he states: `I do not feel this is an unreasonable agreement for either of us. I hope you agree.' (Id.)" (Emphasis added On the issue of whether Mr. Stoelk understood the firm's financial interest in the fee agreement, Judge Van Dyk wrote: "As to whether the law firm had a duty to advise Mr. Stoelk of its `financial interest in obtaining a contingent fee,' Mr. Stoelk was well aware of the law firm's financial interest. At the time he signed the Legal Fee Agreement, he wrote a letter describing the Agreement and how it is intended to operate, stating `Your firm will receive $666,000.' (Ex. 123)." Mr. Stoelk also asserts that the law firm did not go over the terms of the Fee Agreement and explain its implications to him. On this issue Judge Van Dyk stated: "Mr. Stoelk's expert, Mr. Bowersox, testified that at the time of the disputed May RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 15 fee agreement, and again at the time of the undisputed November fee agreement, the law firm had a fiduciary duty to meet with Mr. Stoelk and go over `all of the terms' of the agreement, as well as any potential adverse consequences of the agreement. But Mr. Bowersox did not testify about any material considerations that are undisclosed, that are not apparent from the face of the Legal Fee Agreement and the circumstances of the transaction, and that a reasonable person would find important in deciding whether to agree. As-set-forth in Welsh v. Case, 180 Or App 370, 383, 43 P3d 445 (2002): "[I]t is unlikely that in negotiating a fee payment the client expects that the attorney is using his or her judgment for the protection of the client. That inquiry calls for a case by case determination." There is no question that Mr. Stoelk knew that the firm was protecting its own interest in negotiations leading up to the Legal Fee Agreement. As a matter of law, Ramis Crew did not breach the duty of disclosure to Mr. Stoelk with regard to the Legal Fee Agreement." Mr. Stoelk also asserts that when entering into the fee agreement the firm was required to advise him to seek independent counsel. First, there is no reported case that holds that when negotiating a fee agreement a lawyer is required to advise the client to seek independent counsel. Further, Mr. Stoelk does not mention that at the time the fee agreement was being negotiated he in fact had independent counsel and that at some point he reviewed the contingent fee agreement with Mr. Todd. Attached as Exhibit 39 is Mr. Stoelk's deposition testimony to the effect that he hired Mr. Todd in July of 2001 - 5 months before he signed the Legal Fee Agreement. Mr. Todd has represented Mr. Stoelk from July of 2001 to date. Mr. Stoelk also suggests that when he signed the fee agreement in November of 2001 the firm knew that the West Coast Bank case was going to settle. This contention was also addressed by Judge Van Dyk: "Mr. Bowersox testified that, by November 2001, it was a `virtual certainty' that the case would settle. To the contrary, the settlement was not a `virtual certainty' at the time the Legal Fee Agreement was signed. In fact, Mr. Stoelk himself testified that he was disappointed with the outcome of the mediation. He may well have chosen not to settle, or the Bank may have chosen to go to trial. The Legal Fee Agreement itself sets forth several possible scenarios - settlement, trial, RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 16 sale of an option and Mr. Stoelk completes development, and sale of an option and resale to third party. At the time the Legal Fee Agreement was signed, no one knew which scenario would unfold." Mr. Stoelk's assertion that when the firm agreed to his request for a contingent fee agreement the firm knew the West Coast Bank case was going to settle, and on what term, is also flatly contradicted by his deposition testimony: "Q. So your understanding was that the contingency fee was to cover all of your losses before the law firm would be entitled to any money at all? A. -Yeah. But going into signing this contingency fee agreement, we didn't have an idea what the numbers were going to be. We had no clue. As far as I knew we were walking out with 5 million bucks. Q. What made you think that? A. I just used that as a number right now. I had no clue, but it was a large number based on the fact that we were in the right. West Coast Bank knew they were going to lose the lawsuit. A. My understanding going into that mediation was we had no number. That number could have been $4 million for all I know. There had been some discussion between Steve Crew and Jim Fowler, the bank's attorney, and there was no set number g_oiniz into that mediation that I could hang my hat on that would tell me I'm going, t_o gross, net, get, whatever, X amount of dollars out of this whole thine." (Emphasis added.) Mr. Stoelk also asserts that the firm continued to bill him on an hourly basis up until the settlement of this matter. That is not true. All work done on an hourly basis is billed by the firm monthly. Mr. Stoelk was billed on an hourly basis on the West Coast Bank matter until April 30, 2001. After the firm agreed to convert the case to a contingent fee basis in May of 2001, Mr. Stoelk was not billed again on an hourly basis, even though the firm continued to work on the case from May of 2001 through settlement, over eight months later, in December of 2001. After the case was converted in May of 2001 from an hourly to a contingent fee, I neglected to tell the firm's accounting department of this change. As a result, our accounting system automatically sent reminder statements to Mr. Stoelk reflecting the account receivable based on the April 30, 2001 bill (sent when the case was still hourly). I was not aware of those reminder statements. However, it is clear that Mr. Stoelk was never sent a bill on an hourly basis for work done on the case from April of 2001 until settlement in December of 2001. The vast RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 17 majority of the work on this case was done during this 8-month period of time. The reason Mr. Stoelk never got any such bill was because the case was converted to a contingent fee in May of 2001. Mr. Stoelk, of course, never paid the April 30, 2001 bill, and he was not expected to. LATE FEES Mr. Stoelk also asserts that the firm imposed interest charges up to and over 52 percent. This assertions is without merit. Pursuant to an express agreement, Mr. Stoelk, like all of the firm's clients, was charged a late fee of 1'/z percent per month on outstanding balances more than 60 days overdue. Mr. Stoelk expressly agreed in writing to pay not only his outstanding balances but also-alf late fees on all his accounts with the firm. The Legal Fee Agreement in the West Coast Bank matter made this very clear. Paragraph 7 of the Agreement states: "As of November 1, 2001, the client owes the firm $51,755 plus accrued fees and late charges for legal services not provided in connection with the lawsuit (the "outstanding balance"). The outstanding balance does not include amounts owing to the former firm of Hibbard Caldwell & Schultz. The client has assigned to the firm the client's rights to receive payments from the City of Gresham pursuant to the Reimbursement Agreement for Sam Barlow Mountain View Estates. The outstanding balance shall continue to be reduced by any amounts the firm receives pursuant to the Reimbursement Agreement. When the client receives the final payment from any settlement, judgment or sale of the option, the client shall pay whatever outstanding balances will still be owed to the firm, and the firm will assign to the client any remaining rights under the Reimbursement Agreement for Sam Barlow Mountain View Estates." (Emphasis added.) Attached as Exhibit 40 is a spreadsheet prepared by the firm's accounting department. It shows the billings and late fees that were assessed on each of Mr. Stoelk's various accounts. It shows that the late fees were imposed at the rate of 1'/z percent per month on balances more than 60 days overdue. As a result, Mr. Stoelk paid a total of $1,513.86 in late fees on these matters. After the firm began receiving payments from the City of Gresham, the accounting department imposed no further late fees. Exhibit 40 shows that no additional late fees were imposed after the July 23, 2001 payment from the City of Gresham.' Finally, Mr. Stoelk hired my partner Tim Ramis in May of 1998 to assist him on a land use matter before the Lincoln City Planning Commission. This was before the merger of our firm with Hibbard Caldwell. Mr. Ramis sent Mr. Stoelk an engagement letter and billing policies 'The one exception was on the West Coast Bank garnishment matter where, through inadvertence, late fees continued to accrue. However, this oversight was discovered in April of 2002 and the late fees were reversed. Mr. Stoelk never paid these late fees. RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 18 expressly stating the firm's policy on late fees. (Exhibit 41). Mr. Ramis completed his work in October of 1998 and sent Mr. Stoelk a bill in November of 1998 for $3,277.20. Mr. Stoelk never paid the bill despite getting monthly reminders statements for the next three years. When the July 23, 2001, City of Gresham payment was received, $4,686.40 of that payment was applied to Mr. Stoelk's 3 year old bill on the Lincoln City matter. Of that amount, $1,428.63 was for late fees that had accrued between May of 1998 and July of 2001. Mr. Stoelk expressly agreed to pay late fees of 1 % percent per month. Contrary to his bald assertion, he never paid late fees in excess of that amount. BILLING ISSUES As I understand Mr. Stoelk's complaint, he contends that he did not understand the firm's billing statements. He also questions whether all the money he paid the firm has been accounted for. In support of his contention, he has submitted hundreds of pages of billing statements. Beyond merely submitting the. statements, Mr. Stoelk does not identify any specific issue about which he supposedly was confused. The billing statements Mr. Stoelk submitted are incomplete. In addition, he has included billing statements from the Hibbard Caldwell firm dating back to 1991, long before the merger. I have no information on Hibbard Caldwell's billing statements prior to the merger in July of 2000. He also taken some pages of the statements of Hibbard Caldwell and combined them with pages from Ramis Crew. Rather than try to explain the incomplete and intermingled billing statements submitted by Mr. Stoelk, as referenced before I have had the firm's accounting department prepare several spreadsheets that, taken together, provide Mr. Stoelk with a complete accounting of all of his matters from both law firms. For example, Exhibit 31 shows all payments made by Mr. Stoelk, his wife or any of his various corporations to both law firms from June of 1998 to date. This document shows the date of each payment, the payee, the check number and the amount. It also shows which matters the payments were applied to. In addition, Exhibit 40 is another spreadsheet prepared by my accounting department that summarizes Mr. Stoelk's account history on his matters with Ramis Crew, including the date of billing statements, the date any payments were made, including all late fees that were assessed and paid. Because Mr. Stoelk may have been confused by receiving bills from the two firms on the same matter, Exhibit 28, is the combined account history on the Gordon Thompson matter for each firm separately and also combined. Exhibit 30 present the same information for the "General" matter and Exhibit 29 for the "General Corporation" matter. Finally, Exhibit 42 is an account history on all of Mr. Stoelk's matters with Hibbard RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 19 Caldwell where there remains an outstanding balance, from January of 1998 to date. Once again, all of the issues Mr. Stoelk has raised about the firm's billings were also raised by at the trial before Judge Van Dyk, and resolved against Mr. Stoelk. Specifically, Judge Van Dyk stated: "No credible evidence was presented that plaintiff intentionally over billed for any of its services. The billings themselves do not provide the court with a basis to conclude that the law firm failed to effectuate the reasonable contractual expectations of the parties in supplying legal services. Defendants raised a number of questions about law firm billings during the trial to support allegations of improper charges as set forth in paragraphs 49 B, C, D, E, F, and G of the Amended Answer, but after considering the evidence, as a matter of law it does not support a finding of breach of the implied covenant of good faith and fair dealing. Defendants supplied no evidence that any such irregularities in the billings were brought about purposefully, other than to point to the billings themselves and raise questions about them. Mr. Stoelk had a large number of matters with the law firm and one of its predecessor firms, Hibbard Caldwell. (Ex. 23). After the lawsuit was filed, Mr. Stoelk and his accountant reviewed the billings and the accountant testified at trial that the billings were confusing and raised a number of questions for him, but absent any complaint prior to the lawsuit from Mr. Stoelk about the methods or manner of law firm billings, or the particulars of any of its billings, it is impossible to conclude that the law firm somehow failed to satisfy the reasonable expectations of Mr. Stoelk with regard to the billings sufficient to support a finding that the law firm breached the implied covenant of good faith and fair dealing." (Emphasis added.) It was not lost on the court that Mr. Stoelk never raised the issue of the billing prior to trial. In fact the court commented: "When the Legal Fee Agreement was signed and sent to the law firm on November 30, 2001, Mr. Stoelk sent a cover letter with it stating: `Your firm and the previous firm have always been extremely helpful and professional about our relationship and I hope that will continue for a long time.' (Ex. 122.) At trial, Mr. Stoelk testified that he often complained to Ramis Crew about the billings. Even if taken as true, the statements are flatly contradicted by his letter to the firm. Since the letter was sent at the time the Legal Fee Agreement was made, it is the letter that establishes the objectively reasonable expectations of the parties with regard to the Agreement." (Emphasis added.) RAMIS CREW CORRIGAN a BACHRACH LLP ATTORNEYS AT LAW Scott A. Morrill, Assistant General Counsel February 26, 2004 Page 20 CONCLUSION There is no evidence of misconduct in this case. Each of these issues were addressed by the court and found to be meritless. The trial court's factual findings will not be disturbed by the Appellate Courts. Mr. Stoelk's letter is a misguided attempt to gain leverage in our continuing dispute. We regret this matter went to court and that Mr. Stoelk has involved the Bar. We have made several attempts to resolve this with Mr. Stoelk. After you have determined that there is no misconduct, we would welcome any help from the Client Assistance Office to resolve the concerns raised by Mr. Stoelk. Very truly yours, Stephen F. Crew SFC/cll Enclosures RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW 1 RAMIS CREW CORRIGAN, LLP ATTORNEYS AT LAW 1727 N.W. Hoyt Street Portland, Oregon 97209 (503) 222-4402 MEMORANDUM Fax: (503) 243-2944 TO: West Linn Planning Commission Bryan Brown, Planning Director FROM: Timothy V. Ramis, City Attorney DATE: September 20, 2005 RE: Possible Code Amendments Regarding Adequate Public Facilities You asked me to prepare possible code amendments for your consideration clarifying that proving the adequacy of public facilities is an approval standard for land division and other land use applications. We have prepared code amendments for your consideration, as shown on the attached Exhibit A. The amendments add a definition of "adequate public facilities," and add an "adequate public facilities" requirement to the design review (both types), conditional use, and land division approval standards. If the Planning Commission wishes to proceed with these amendments, it should adopt a motion to propose this legislative change. Staff would then see that the required procedural requirements for a code amendment are followed. The language used in the draft code revisions would provide that applications may be approved only if adequate public facilities will be available prior to occupancy. The Planning Commission may wish to consider whether this is the appropriate standard and whether any exceptions should be allowed. G:\mun i\WestLinn\adequatepubl icfacil itiesmemo092005.wpd EXHIBIT A - ADEQUATE PUBLIC FACILITIES POTENTIAL CODE REVISIONS Amend CDC 2.030 to add a new definition as follows: Adequate Public Facilities. Public facilities that must be adequate for an application to be approved are transportation, water, sewer, and storm sewer facilities. To be adequate, on-site and adjacent facilities must meet City standards, and off-site facilities must have sufficient capacity to meet all existing demands, the anticipated demands from projects with existing land use approvals, plus the additional demand created by the application, and remain compliant with all applicable standards. Amend CDC 55.090 to add a new subsection B (and renumber the existing subsection B as subsection C) to read as follows: B. An-application may be approved only if adequate public facilities will be available to provide service to the property prior to occupancy. Amend CDC 55.100.1 to add new introductory language before subsection I to read as follows: An application may be approved only if adequate public facilities will be available to provide service to the property prior to occupancy. Amend CDC 60.070.A.4 to read: Adequate public facilities will be available to provide service to the property prior to occupancy. Amend CDC 85.200 by amending the introductory language to read: No tentative subdivision or partition plan shall be approved unless adequate public facilities will be available to provide service to the partition or subdivision area prior to final plat approval and the Planning Commission or Planning Director, as applicable, finds that the following standards have been satisfied, or can be satisfied by conditions of approval. G:\tnuni\WestLinn\adequatepubl icfacil ities.wpd t: RAMIS CREW CORRIGAN, up ATTORNEYS AT LAW 1727 N.W. Hoyt Street Portland, Oregon 97209 (503) 2224402 MEMORANDUM Fax: (503) 243-2944 TO: Chris Jordan, City Manager, City of West Linn FROM: Timothy V. Ramis, Gary Firestone, City Attorney's Office DATE: November 8, 2005 RE: Annexation Procedural Issues ISSUES: 1. May the City consolidate multiple areas proposed for annexation into a single ballot measure to be decided by the voters? 2. May the City require all annexation applications to be submitted or processed within a limited period of time each year? ANSWERS: 1. The City may consolidate multiple areas proposed for annexation into a single ballot measure only if the City takes appropriate procedural steps. Only areas that are contiguous to each other may be consolidated into a single vote. The necessary procedural steps include the submission of a "proposal" covering the entire area proposed to be annexed. 2. Because an annexation is not a "permit" the City can limit consideration of annexation proposals to a limited time period each year. ANALYSIS 1. The City May Consolidate Contiguous Areas Into A Single Ballot Measure By Initiating A "Proposal" For Annexation Of The Entire Area ORS 222.111(2) provides that a "proposal" for annexation may be initiated by a city council or by petition of the owners of real property in the area to be annexed. ORS 222.111(7) provides that two or more proposals for annexation may be voted on at a single election, but each "proposal" must be . separately stated on the ballot. If the City receives multiple "proposals" it is possible for the City. Council, on its own motion, to initiate a proposal that includes all contiguous areas proposed to be Memorandum re: Annexation Procedural Issues November 8, 2005 Page 2 annexed. The property owners could also resubmit a single joint proposal. If the City Council initiates a proposal covering an entire contiguous area, or if the owners of the various areas get together and' resubmit a single proposal, the result would be a single "proposal" that could be voted on as a single, unit, consistent with ORS 222.111(7). The City Council could hold the processing of the originally submitted proposals pending the vote on the larger proposals. ORS 222.111 consistently refers to the "territory" to be annexed, using the singular form of the, noun. A substantial risk exists that a court would conclude that areas that are not contiguous to each other are not a single territory and therefore must be the subject of separate proposals for annexation.' Under ORS 222.111(7), separate votes are required for separate proposals for annexation. 2. An Annexation Is Not A Permit Subject To The 120 DU Rule, So The City May Limit Annexation Processing To Certain Time Periods Within A Year Annexations are not permits subject to the procedural requirements, including the 120-day time, limit, of ORS 227.178. Clark v. City ofAlbany,142 Or App 207, 921 P2d 406 (1995). Nothing in ORS _ Chapter 222 imposes a time limit on processing annexation applications. While a local government could not preclude the submission of annexation applications, a City can impose reasonable procedural' requirements. A requirement limiting the period when annexation applications may be submitted or processed to a certain portion of a calendar year is not inconsistent with any provision of ORS Chapters 197 or 222. GAmuni\W estLinn\annexissues 110805.wpd FILE ' BEFORE THE SUPREME COURT ' OF THE STATE OF OREGON CORPORATION OF THE PRESIDING ) ' BISHOP OF THE CHURCH OF JESUS ) CHRIST OF LATTER-DAY SAINTS, ) LUBA No. 2002-155 Respondent ) Petitioner on Review, ) CA No. A122194. SC No. S51504 ' CITY OF WEST LINN, ) Petitioner ) Respondent on Review, ) and . j UNITED STATES OF AMERICA, ) Intervenor on Judicial Review, ) } acid ) ROBERT r iuLTON, SUSAN FULTON, ) GREGG AWFORD, HOLLY ) ' CRAW.FORD, WALTER SWANSON, ) KATHI SWA.NSON, DALE ICRUG, ) - COLLEENT KRUG and STEVEN WILKES, ) Intervenor-Respondents ) below. ) ' RESPONDENT'S BRIEF On Review from the Decision of the Court of Appeal on Petition from the Land Use Board of Appeals ' (Eassham, Briggs and Holstun) Opinion Filed: March 24, 2004 Author of Opinons: Brewer, J.- Concurring: Landau, P.J. and Armstrong, J. ' (Counsel listed on insid_- cover) November 2004 .1 Timothy V. Ramis, OSB #75311 James H. Bean, OSB #68011 Ramis Crew Corrigan & Bachrach, LLP Lindsay Hart Neil & Weigler LLP 1727 NW Hoyt Street 1300 SW 5" Avenue, Suite 3400 Portland, Oregon 97209 Portland, Oregon 97201 Telephone: (503) 222-4402 Telephone: (503) 226-7677 Attorney for Petitioner Of Attorneys for Respondent Respondent on Review and Petitioner on Review City of West Linn Corporation of the Presiding Bishop. r 1. Franklin Hunsaker, OSB #72131 Matthew K. Richards Bullivant Houser Bailey, P.C. Kirton & McConkie 888 SW Fifth Avenue, Suite 300 1800 Eagle Gate Tower Portland, Oregon', 97204 60 East South Temple Telephone: (503) 228-6351 Salt Lake City, UT 84145 Of Attorneys for Respondent Telephone: (801) 328-3600 and Petitioner on Review Of Attorneys for Respondent Corporation of the Presiding Bishop and Petitioner on Review. Corporation of the Presiding Bishop t Mark Stem Herbert C. Sunby, OSB 72257 1 Lowell V. Sturgill, Jr. Department of Justice Appellate Staff Office of the United States Attorney 1 Civil Division, Room 9140 1000 SW Third Avenue Department of Justice Portland, Oregon 97204 601 D. Street, NW Telephone: (503) 727-1026 Washington, D.C. 20530 Of Attorneys for Intervenor on Telephone: (202) 514-5089 Judicial Review United States Of Attorneys for Intervenor on of America Judicial Review. United States of America L Steven W. Abel, OSB #83137 Samuel J. Panarella, OSB #00126 " Stoel Rives: LLP 900 SW Fifth Avenue, Suite 2600 t Portland, Oregon 97204 Ly Telephone: (503) 294-9222 R' Of Attorneys for Intervenor-Respondents Below '.d i ' TABLE OF CONTENTS ' I. QUESTIONS PRESENTED AND PROPOSED RULES OF LAW 1 II. NATURE OF ACTION 2 III. STATEMENT OF FACTS ' A. The Application ...................................................4 B..* The Bases for Denial 4 ' C. - - , The-LUBA and Court of Appeals Decisions D. Specific Disagreements with the Church's Statement of Facts 6 ' IV. SUMMARY OF ARGUMENTS 7 V. RLUIPA ARGUMENT ......................................................9 A. The City Has Not Imposed a Substantial Burden on Religious Exercise 9 1 1. The Decision Does Not Preclude Approval of a Revised Application 9 2. Denial of an Initial Application When the Applicant May Resubmit Is Not a Substantial Burden 11 3. The City's Decision Provides Sufficient Findings and Conclusions; The City Is Not Required To Provide Additional Details as to How the Application Should Be Revised 16 B. RLUIPA Does Not Apply When the Government Applies Neutral, Generally Applicable Standards In A Non-Discriminatory Fashion 17 C. The Court Need Not Decide On Any "Test' 'For Determining What Constitutes A Substantial Burden ..............................................18 1. The "Tendency to Inhibit" Test Is Not Compelled By RLUIPA or US Supreme Court Precedent and Should Not Be Adopted 18 2. The Court Does Not Need To Decide Whether the Effectively Impracticable Standard Should Be Adopted 24 ' 3. The Court of Appeals Did Not Adopt the Effectively Impracticable Standard ..................................................25 1 , 11 ' D. Even Under the Test Proposed by the Church, the City's Decision Does Not Violate RLUIPA 28 ' VI. A REMAND IS NOT REQUIRED 28 A. Application of ORS 197.522 29 VII. CONSTITUTIONAL ARGUMENTS 32 ' A. RLUIPA, If Interpreted As Proposed By the Church, Violates The Establishment Clause .......................................................:..33 r - I. A Statute that Fails To Meet Any of the Three Parts of the Lemon Test Violates the Establishment Clause 33 2. The Principal Purpose of RLUIPA Is To Advance Religion 33 `w 4 3. The Principal Effect of Section 2(a) Is To Advance Religion 35 4. RLUIPA Results In Excessive Entanglement of Church and State 39 - B. Congress Exceeded Its Authority In Enacting RLUIPA 42 r 1. Historical Background To RLUIPA 42 2. RLUIPA Is Beyond the Enforcement Authority of Congress 43 r 3. RLUIPA IS Not Saved By The Commerce Or Spending Clause ' Provisions .................................................48' VIII. CONCLUSION .........................................................50 1 r 1 1 1 1 TABLE OF AUTHORITIES ' CASES Agostini v. Felton, 521 US 203 (1997) 33, 35, 39 Al Ghashiyah v. Dept. of Corrections, 250 F Supp 2d 1016 (ED Wis 2003) 34,36 ' Alpine Christian Fellowship v. Cy. Commis ofPitkin Cy, 870 F Supp 991(D Colo 1994) 23 Arlington g ights Homeowners Assn. v. City of Portland, 41 Or LUBA 185, (2001) 31 Bd ofEducation of Kiryas Joel Village School District v. Grumet, 512 US 687 (1994) 33 ' Castle Hills First Baptist Church v. City of Castle Hills, 2004 US Dist LEGS 4669 4 (WD Tex, March 14, 2004) ...............................................15 Christian Gospel Church, Inc. v. City and County of San Francisco, 896 F2d 1221 (9th Cir1990) ..........................................................13 ' Church of Lukumi Babalu Aye v. City of Hialeah, 508 US 520 (1993) 47 City of Boerne v. Flores, 521 US 507 (1997) 23,43-45 Civil Liberties for Urban Believers v. City of Chicago, 342 F3d 752 (711' Cir 2003) 25,26 Corp. of the Presiding Bishop v. City of West Linn, 192 Or App 567, 597-98, 86 P3d 1140 (2004) 14, 24, 25, 29, 31 Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F Supp 2d 1203 (CD Cal 2002) ...................................................14,23,41 ' Cutter v. United States 349 P3d 257 2003 38 DLCD v. Klamath County, 38 Or LUBA 769 (2000) 13 ' Edwards v. Aguillard, 482 US 578 (1987) 3)3 Elsinore Christian Center v. City of Lake Elsinore, 270 F Supp 2d 1163 (CD Cal 2003) 23, 42, 44, 45 Employment Division v. Smith, 494 US 872 (1990) 23,42 ' iv ' First Covenant Church of Seattle v. City of Seattle, 120 Wn 2d 203, 804 P2d 174 (1992) . . . . 23 ' Friends of Yamhill County v. Yamhill County, 2004 Or LUBA LEMS 92 (June 28, 2004) 13 ' Grace United Methodist Church v. City of Cheyenne, 235 F Supp 2d 1186 (D Wyo 2002) . 13, 21, 41 t Guam v. Guerrero, 290 F3d 1210 (9" Cir 2002) 27 Guru Nanak-Sikh Society v. County of Sutter, 326 F Supp 2d 1140 (ED Cal 2003) 12,25 ' Hodge Oregon ProFerties v. Lincoln County, 194 Or App 50, 55-56, 93 P2d 43 (2004) 30 Jesue Center v. Farmington Hills Zoning Bd of Appeals, 544 NW2d 698 (Mich App 1996) 23 Johnson v. Pendleton, 131 Or 46, 54-55, 280 P873 (1929) . 16 Konikov v. Orange County, 302 F Supp 2d 1328 (MD Fla 2003) 21 ' Lemon v. Kurtzman, 403 US 602 (1971) 33, 35, 37, 39, 42 Midrash Sephardi, Inc. v. Town of Surfside, 366 F3d 1214 (11th Cir 2004) 19 Mitchell v. Helms, 530 US 793 (2000) 35 Murphy v. Zoning Commission, 289 F Supp 2d 87 (D Conn 2003) 12,23 ODOT v. City of Eugene, 38 Or LUBA 814 (2000) 13 Petra Presbyterian Church v. Village of Northbrook; 2003 US Dist LEMS 15105 (ND Ill Aug, 28, 2003) 21 PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) 17 Rector, Wardens and Members of St. Bartholomew's Church v. City of New York, ' 914 F2d 348 (2nd Cir 1990) 13 Rhyne v. Multnomah County, 23 Or LUBA 442, 447-48 (1992) 30 ' Salem College and Academy, Inc. v. Employment Div., 298 Or 471, 695 P2d 25 (1985) 32 ' San Jose Christian College v. City of Morgan Hil, 360 F3d 1024 (9d' Cir 2004) 11,18, 21, 24, 27 ' V ' Shepherd Montessori Center Milan v. Ann Arbor Charter Township, 259 Mich App 315, 675 NW 2d 271(2003) :.................................................13 ' Sherbert v. Verner, 374 US 398 (1963) 19-23, 25, 42-45 State v. Wyatt, 331 Or 335, 345-46 15 Pad 22 (2000) 48 Thiry v. Carlson, 78 F3d 1491, 1495 (10' Cir 1996) 13 Thomas v. Review Bd of Employment Sec. Div., 450 US 707 (1981) 19-21,28 Vineyard Christian Fellowship of Evanston, Inc. v. City of Evanston, '250 F Supp 2d 961 (ND Ill. 2003) . . 13 Wallace v. Jaffree, 472 US 38 (1985) 33 Westchester Day School v. Village of Mamoroneck, 2004 US App LEXIS 20327 ' (2d Cir Sept. 27, 2004) 11, 12, 14, 23, 25 4 STATUTES ORS 197.522 .............................................................29,31 ORS 197.835 ................................................................29 ORS 227.173(3) ...............................................................16 ' COMMUNITY DEVELOPMENT CODE CDC 55.100 ................................................................4,5 CDC 60.070 ..................................................................5 ' CDC 99.320 .......................................................12 1 1 1 I. QUESTIONS PRESENTED AND PROPOSED RULES OF LAW Respondent on Review the City of West Linn (City) does not agree with the Question ' Presented as stated by Petitioner on Review Corporation of the Presiding Bishop of the Church of ' Jesus Christ of Latter Day Saints (the Church). The City offers three questions that more accurately state the questions that the court will or may have to decide in resolving the issues 1 presented by this case: L Did the Court of Appeals err in holding that a "mere inconvenience" is not a-substantial burden? ' 2. Does a denial of a land use application submitted by a religious institution constitute a substantial burden on religious exercise when the denial is consistent with applicable code provisions, both objective and subjective, the applicant remains free to submit a revised application to cure the defects in the proposed development, and the record establishes than any applicant, whether religious or ' nonreligious, would have been-denied? Another way of stating this question is: Does the Religious Land Use and Institutionalized Persons Act (RLUIPA) t mandate that a local government must grant an initial land use application ' submitted by a religious entity for a religious meeting place, regardless of whether the proposed development complies with applicable standards? ' 3. Is RLUIPA unconstitutional if it requires a local government to approve a land use ' application, applying neutral regulations of general application in a nondiscriminatory manner, if an application for the same development permit would have been denied to any other applicant and when the applicant remains free to submit a new application? y 2 The City proposes that the questions be answered as follows: 1 Under any possible interpretation of the term "substantial burden," a mere . ' inconvenience is not a substantial burden. Having to comply with neutral regulations of general applicability is a mere inconvenience, not a substantial burden. Having to submit a new application when the original application did not contain all required information is a mere _ inconvenience, not a substantial burden. 2. "RL'UIPA does not compel a local government to grant a land use application rsubmitted by a religious entity for a.religious meeting place if the application does not contain all required information and the proposed development does not comply with applicable standards in circumstances in which the same application submitted by any entity would be denied, and where the religious applicant is free ' to submit a revised proposal that complies with applicable standards, unless the record reveals a pattern of denials that precludes religious land use and the continued denials are not narrowly tailored to protect an important public interest. ' 3. RLUIPA is unconstitutional if it forces local governments to grant approvals to ' religious institutions when any other applicant for the same development would be denied under existing neutral laws of general application. ll. NATURE OF ACTION ' The City does not agree with the Church's statements of the nature of action, relief ' sought, and judgment. This is a quasi-judicial land use case. The decision-maker and finder of fact in this case is the City Council of the City of West Linn. The City's final order, which included findings and conclusions, is the "judgment" at issue. Rec. 9.18. 3 The City agrees with the Church that the initial and key issue is whether a substantial burden was imposed. However, the City disagrees factually with the description of the burden imposed. The Church characterizes the burden as a refusal to allow the Church to build a religious meeting place in the City, strongly implying that the City absolutely refuses to allow the 1 Church to build within the City at any place, in any configuration, and at any time. That is not ' what the City has done. The City has simply refused to approve a single application. A more complete application that reconfigures the site plan to create more substantial buffers could be approved. - lbe°burden in this case is not the inability to worship but simply the requirement to submit an application for a development that meets City code standards and is complete in ' ~addressing all standards. The Church asserts that the Court of Appeals adopted an "effectively impracticable" test - and that this test should be rejected in favor of a "tendency to inhibit" test. Church's Brief 1-2. ' The City does not believe that the Court of Appeals adopted an "effectively impracticable" test. The term "substantial burden" is sufficiently understandable so that no restatement of the 1 standard is needed - the test for determining "substantial burden" is whether there is a burden on religious exercise and whether the burden. is' substantial. In this case the burden is simply the requirement to submit a new application that complies with applicable standards, while the Church members continue to attend religious meetings at a nearby church in an adjacent city. III. STATEMENT OF FACTS The City rejects the Church's Statement of Facts as argumentative and often contrary to ' the findings of fact adopted by the City Council. 4 A. The AD-Dlication 1 The Church applied for a conditional use permit and design review approval for a religious institution on April 1, 2002, on property in the City zoned R-10. Rec. 519, 577. The ' noise study submitted with the application did not address all required types of noises, and the missing-information was never provided. Rec. 17. The application was for an area of 3.85 acres that does not presently exist as a separate lot or parcel. Rec. 10. The area is part of a larger area ' totaling 5.64 acres. containing two lots under common ownership. Rec. 10, 213. The Church does not curireritly'own either of the two lots. Rec. 213, 811. The existing two lots would have ' to be reconfigured' to create the property that is the subject p p of the application. Rec. 560. The ' City's final decision, applying existing, neutral, generally applicable code standards, both objective and subjective, was to deny the application. Rec. 9-18. - B. The Bases for Denial The City's standards for both design review and conditional use include standards ' relating to compatibility with and impact on the neighborhood. The design review standards include noise impact standards, containing specific standards for Impulse Sound, Ll, L10 and ' L50 sound types. The code requires submission of noise studies so that the City can determine ' compliance with the standards. CDC 55.100D.3. The Church submitted a noise study, but it did not address the Impulse Sound and L1 levels. Rec. 172. The Council found that the Church had t A partition or other process would be needed to reconfigure the lots. ' 2 CDC 55. provides in relevant part: ' 3. Structures or on site activity areas which generate noise, lights, or glare shall be buffered from adjoining residential uses in accordance with the standards in Section 55.100(C) where applicable. Businesses or activities that can reasonably be expected to generate noise shall undertake and submit appropriate noise studies and mitigate as necessary. (See Sections 55.1 10(B)(I 1) and 55.120(M).) 1. 5 t not complied with the threshold submission requirements. The design review standards require compatibility between the proposed structures and ' uses with structures and uses on adjoining sites, but allow consideration of buffering and screening in determining compatibility. CDC 55.100B.6.b and 55.1000. The City found that the building and parking lot would have impact on the adjoining residential uses and that the ' proposed buffer was insufficient. Rec. 14-15. The conditional use standards require that the site be suitable for the use as proposed and that the prbprty be sufficiently large to mitigate for possible impacts. CDC 60.070A.1.b and 60.070A.2. The City Council found that the site was not large enough to mitigate for the impact ' of the large building and extensive parking lot. Rec. 10-12. 4 Based on the failure to meet standards, the City denied the application. The denial - addressed the Church's RLUIPA argument, noting that the decision was based on applicable TABLE 1 Allowable Sound Levels Within 25 Feet of a Dwelling Type of Sound 7 am. - 7 p.m. 7 p.m. - 7 am. ' Statistical Noise L50 = 55 dBA L50 = 50 dBA L10 = 60 dBA L10 = 55 dBA Ll = 75 dBA Ll = 60 dBA Impulse Sound 100 dB 80 dB ' The City Council's findings included the following: ' 35. * * * The noise study provided by applicant is insufficient to demonstrate compliance with the applicable noise standards, including the standards of Table 1, the standards of Table 2 and the Ambient Degradation Associated with New Noise Sources standard. 36. The applicant's expert indicated in testimony that noise study did not address the LI standard contained in Table 1. The noise study also did not address the impulse standard contained in Table 1. f. Conclusion: The applicant has not demonstrated compliance with CDC 55.100D.3. 6 standards and that any other applicant would have been denied. Rec 17-18. The decision noted ' that: "While large churches and parking lots may be permitted, even in residential areas, they ' must be on lots of sufficient size, dimensions and configuration, taking into account topography and vegetation, to avoid a negative impact on the neighborhood." Rec. 18. C. The LUBA and Court of Appeals Decisions The Church appealed the denial, arguing both that the application complied with applicable standards and that the City's decision violated RLUIPA. LUBA rejected the claim that the application met applicable standards, but remanded on the RLUIPA argument, taking the position that the City had imposed a substantial burden by denying the application. . The City sought review by the Court of Appeals. The Church did not appeal LUBA's 4 decision as to whether it complied with applicable standards. The Court of Appeals reversed the - LUBA decision finding that the burden was only the burden of submitting a new application and ' that the burden was not substantial. The Court of Appeals noted that its decision was based on the facts as they existed at the time of the decision and that future denials could result in a substantial burden. D. Specific Disa eements with the Church's Statement of Facts The Church states that the application complied with all objective criteria and was denied solely on subjective criteria. Church's Brief 3. However, as the Church acknowledges in ' footnote 3 of its brief, the City's denial was also based on the Church's failure to submit a noise ' study that demonstrates compliance with all noise standards. Rec. 17-18. A denial based on the Church's failure to submit a complete noise study, a study which addresses clear numeric standards, is a denial based on objective criteria. The Church argues that the City did not provide any specific guidance as to how 7 subjective determinations could be addressed, argumentively implying that there is some obligation to do so. Church's Brief 3. The City's decision noted that including more property in ' the application, which the Church has acknowledged is possible, could satisfy the criterion by ' allowing greater buffers. Rec. 12, 18. The Church states that the Court of Appeals adopted the "effectively impracticable" test for determining what constitutes a substantial burden. Church's Brief 4-5. As discussed in more ' detail below, that is a mischaracterization of the Court of Appeals' decision. . Th_e_Ch&ch discusses at length facts related to the Church's need for a church of the size ' and design ProPosed in an attempt to argue that the burden imposed on the Church is a substantial burden. Church's Brief 5-11. The City accepts that if the Church is to build a 4 building, it will the building it has proposed. The City's denial was based on whether the -property was sufficiently large to support the building and parking lot proposed. Rec 14-18. The Church implies that some persons are prevented from worshiping because of overcrowding, but appears to concede that the record does not show overcrowding to that extent. Church's Brief 6. The Church had ample opportunity at the de novo City Council hearings to present evidence on any issue. The record shows that members of the Church currently attend ' . ' church. Rec. 309-11, 316-17, 596. The fact that they do so in a neighboring jurisdiction does not prevent them from participating in religious observances with fellow church-members. Id. West Linn is a small town, and it borders other cities, including Lake Oswego, where most of the ' members of the Church who reside in West Linn attend church. IV. SUMMARY OF ARGUMENTS The burden in this case is not the inability to hold religious meetings, it is the requirement ' to submit a new land use application. That is not a substantial burden under any standard. ' 8 The City denied the application on both objective and subjective standards. The Church's ' noise study did not address all noise tYPa standards required to be addressed by the City's ' Community Development Code (CDC). The noise standards are objective numerical standards. ' The application was also based on subjective standards relating to compatibility, but the City noted that a different configuration using more land and providing greater buffers could have been approved. 1 The- term "substantial burden" is sufficiently clear so that no differently stated "test" is needed to detetini'he whether a substantial burden exists. The "test" is whether there is a burden and, if so, whether it is substantial. The burden in this case is submitting a new application that complies with applicable standards. Under the circumstances of this case, that is not a substantial burden. The burden in this case is the same burden or inconvenience that all land use applicants face when they submit an application that does not meet applicable criteria. Fixing an ' application so that it complies with standards may be an inconvenience, but it is not a substantial ' burden. If the Court were to conclude that the burden is substantial, the City would still prevail ' because the City's action is necessary to enforce the legitimate public interest of protecting ' neighborhoods from incompatible development. It is also the minimum action necessary under the circumstances to protect the public interest. Under the circumstances of this case, the City ' did not have the option of imposing conditions, because any revised plan would likely extend ' outside the area proposed for development and because there was nothing in the record to support a finding that it was feasible to comply with any possible condition the City could have imposed. If the Court concludes that the City's actions potentially violate RLUIPA, then the Court must consider the constitutionality of RLUIPA. If RLUIPA is interpreted to apply when a local 9 government applies neutral laws of general applicability in a nondiscriminatory manner, then ' nt Clause and is outside the scope of Congress's authority ' to enact legislation to enforce the 14`' Amendment. V. RLUIPA ARGUMENT A. The City Has Not Imposed a Substantial Burden on Religious Exercise ' 1. The Decision Does Not Preclude Approval of a Revised Application In its findings, the City indicated that a revised 'application, including the missing noise test and add'res'sing the parcel size and buffering issues, could be approved. Rec. 18. The failure to conduct required noise tests can easily be remedied by additional testing. Despite the ' 'Church's repeated claims that the application satisfied all objective criteria but was denied under - 4 subjective standards, in fact the Council's findings cite failure to submit required noise testing as -an independent basis of decision. Rec. 17. The requirement is an objective criteria that was not satisfied. Rec. 15, 17. The Church's noise consultant testified that the noise study did not address the Ll criteria. Rec. 74. With respect to the discretionary criteria, the decision specifically leaves open the possibility of approving a new application that includes more land and buffering. Rec. 12. In ' ' suggesting a resubmission the City has made no effort to direct the size and design of the building. In its brief, the Church discussed its need for a building of the size indicated in its original submission disagreeing with the Court of Appeals' comments that the decision of the building is one of preference, and not a requirement of religious belief. Church's Brief 8. While the City believes that the record is unclear as to whether the particular design is one of preference or religious requirement, the City has not asked the Church to propose a smaller building, but has 10 emphasized that if the parcel for which an application is submitted can be increased in size, as the Church has conceded can occur, an application might be approvable.3 Rec. 14-18. The City ' Council's findings on this issue include: . While large churches and parking lots may be permitted, even in residential areas, they must be on lots of sufficient size, dimensions and configuration, taking into account topography and vegetation, to avoid a negative impact on the ' neighborhood. The proposed development (building and parking lot size and design) might have been acceptable on a larger parcel. Rec. 18... This finding does not suggest a smaller building, it suggests a larger parcel. The findings alsa-included statements such as: The "parcel" as proposed is not large enough to provide adequate buffers to mitigate possible adverse effects on surrounding properties. The adequacy of the buffers is determined by both width and by other factors that effect the effectiveness of the buffer. Other factors include thickness of vegetation or ' difference in elevation. -Rec. 11. A review of the City's decision reveals that the City accepted the size and design of the building and based its decision on whether the proposed parcel was large enough to provide adequate buffering. Nothing in the decision suggests that the City is trying to coerce the Church 1 into a smaller or different building a To the extent that the City is providing any pressure at all ' on the Church, it is to increase the size of the parcel to provide greater buffers.' That pressure is 1 3 The City's statements concerning future actions are conditional because no commitment can be made on ' an application that has not been submitted and no commitment can be made as to Council action. 4 While it is logical that a smaller building would have less impact, the City respects that the Church's choice of building design is or may be dictated by religious beliefs and the need to provide a religious experience for ' the Church's members. That is why the City's decision focused on the size of the parcel and the adequacy of the buffers. ' There may be other means of reducing the impact and increasing the buffers, such as underground parking, development of berms or other features to lessen visual and noise impact, but increasing lot size seems the most likely option. 11 not related to any religious practice or belief and is something that the Church has indicated is ' acceptable to it. Church's Brief 3. 2. Denial of an Initial Application When the Applicant May Resubmit Is Not a Substantial Burden ' Denial of an initial application is not a substantial burden where approval is not precluded and a new application may be submitted. Westchester Day School v. Village of Mamoroneck, 2004 US App LEMS 20327, * 15 (2d Cir Sept. 27, 2004); see also San Jose Christian College v. . City of Morgan,:Hill, 360 F3d 1024, 1033-35 (9 h Cir 2004) (denial based on incomplete application is nota substantial burden when the applicant may submit an application and it is not apparent that the application will be denied). 1 4`' In Westchester Day School, the Second Circuit distinguished between initial denials that allow subsequent applications that appear to have a reasonable chance of being approved and initial denials for which there is no real possibility of subsequent approval. 2004 US Dist LEMS 1 20327 at * 15. This case is in the former category - an approval remains a viable possibility. The initial denial therefore does not constitute a substantial burden. As noted by the Court of Appeals, the decision may be different if a pattern of denials occurs. Corp. of the Presiding Bishop, 192 Or App at 597-98. A pattern of denials has not occurred e ' The Church argues that San Jose Christian College is distinguishable on its facts because ' in that case the religious entity did not submit a completed application. Church's Brief 26-27. However, the facts are not all that different. In San Jose Christian College, the applicant had 1 submitted an application but did not provide additional information that would have allowed the ' city to grant the application. 360 F3d 1024. That situation is not significantly different from the 6 A pattern of denials only occurs if there is a pattern of final denial by the Council. 12 one in this case where the Church submitted a noise study that does not address all sound types that are required to be addressed. Submitting a truly complete application, including a noise study that addresses all.sound types, is not a substantial burden. The Church argues that the denial of the application denies the Church the right to have a i meeting house. Church's Brief 14-17, 30-34. The City acknowledges that an absolute denial that leaves the Church without a chance of obtaining an approval on this or other sites could constitute a substantial burden. The City's decision leaves open the possibility of approval of a new applicafion that includes more property and provides greater buffering.' The Church has admitted that providing additional space and buffer is possible. Church's Brief 3. ' The chief burden in this case is the requirement to submit a new application with a ' revised site plan and a complete noise study. A new application with a site plan that provides - better buffers (more distance, more vegetation, and possibly a berm, see Rec. 11) and a complete ' noise study could be approved. This requires church members who currently attend religious meetings at a nearby meeting house in an adjacent city to continue to do so until a new application is submitted and approved. ' The courts have articulated different standards as to what constitutes a substantial burden, but the cases appear to agree that a "mere inconvenience" is not a substantial burden. 'See, e.g., Guru Nanak Sikh Society v. County of Sutter, 326 F Supp 2d 1140, 1152 (ED Cal 2003); Murphy v. Zoning Commission 289 F SuPP 2d 87, 114 n 29 (D Conn 2003), • Westchester Day School v. 7 However, the Church chose to appeal the decision but not to submit a new application. The City notes ' that the Church could have both appealed and submitted a new application. The Church argues that it must wait 12 months before submitted a new application. Church's Brief 34. This is not true. The relevant code provision limiting new applications after approval provides that after denial, an application "may not be submitted for the same or a substantially similar proposal." CDC 99.320. When an application has been denied for specific reasons, an application that includes modifications in response to the reasons for denial is not "substantially similar" and therefore may be submitted. An application that includes more territory and proposes enhanced buffers would not be ' "substantially similar." 13 1 Village of Mamaroneck, 280 F Supp 2d 230, 240 (SDNY 2003), vacated and remanded by 2004 US App LE)US 20327 (2d Cir Sept 27, 2004); Grace United Methodist Church v. City of ' Cheyenne, 235 F Supp 2d 1186,1194 (D Wyo 2002); Shepherd Montessori Center Milan v. Ann Arbor Charter Township, 259 Mich App 315, 330, 675 NW 2d 271 (2003). See also Thiry v. Carlson, 78 F3d 1491, 1495 (10`' Cir 1996) (government regulation that has only an incidental effect to make religious practice more difficult is not a substantial burden). Having to submit a new application, when the application could be approved and when Church members continue to attend services`inIa nearby church, is a mere inconvenience, not a substantial burden. See Vineyard Christian Fellowship of Evanston, Inc. v. City of Evanston, 250 F Supp 2d 961 (ND 111 2003); see also Christian Gospel Church, Inc. v. City and County of San Francisco, 896 F2d 1221 (9`'' Cir 1990) (not substantial burden to deny conditional use permit when only effect is to present a change in location of religious meetings); Rector, Wardens and Members of St. Bartholomew's Church v. City of New York, 914 F2d 348, 357 (2"d Cir 1990) (not substantial burden to deny application to expand church building if church can carry out religious purpose in existing facilties). ' Under Oregon's complex land use system, it is common practice in land use for an applicant to be refused the first time and have to submit a new application in order to obtain approval. See, e.g., Friends of Yamhill County v. Yamhill County, 2004 Or LUBA LEMS 92 (June 28, 2004) (application for variance denied by city planning commission; subsequent ' application for comprehensive plan and zoning amendments approved); ODOT v. City of Eugene, ' 38 Or LUBA 814 (2000) (application for PUD denied; new application making revisions in response to denial approved); DLCD v. Klamath County, 38 Or LUBA 769 (2000) (zoning application denied; lication denied; new application for comprehensive plan and zoning amendments granted). 14 While refiling is inconvenient, it is not unusual in our system and therefore not a substantial burden on the Church. The Church relies primarily on two cases to make its argument that the City has imposed a substantial burden. Church's Brief 30-34. Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F Supp 2d 1203 (CD Cal 2002) is distinguishable because the applicant in that case had no opportunity to submit an application that would be approved. The application was.denied to facilitate condemnation of the site by the redevelopment agency. In contrast, tiie:City of West Linn has no plans to take the Church's the property and a new application may be submitted at any time. ' In holding that the burden on this case is not substantial, the Court of Appeals properly 4 employed the distinction between an initial denial in which subsequent applications could be filed and cases in which there have been repeated denials or indications that subsequent ' - applications would also be denied. Corp. of the Presiding Bishop v. City of West Linn, 192 Or App 567, 597-98, 86 P3d 1140 (2004). If this distinction is not made, the denial of an application by a religious entity would always constitute a substantial burden, even when the application is incomplete. ' The Church also relies on Westchester Day School, 280 F Supp 2d 230. That case has since been vacated on appeal by Westchester Day School v. City of Mamaroneck, 2004 US App LEXIS 20327 (2d Cir Sept 27, 2004). The facts in that case are in some ways more similar to the ' facts of this case than any other reported case. A religious institution applied for a permit to expand its school, which at least in part is used for religious exercise, and to add parking spaces. Id. at **5-6. The permit was denied, and the applicant filed an action alleging a RLUIPA ' violation. 1d. at *6. The district court granted summary judgment in favor of the applicant, 15 noting that the denial was a "complete denial." Id. at *9. On appeal, the Second Circuit held: Needless to say, rejection of a submitted plan, while leaving open the possibility ' of approval of a resubmission with modifications designed to address the cited problems, is less likely to constitute a "substantial burden" than definitive rejection of the same plan, ruling out the possibility of approval of a modified ' proposal. Id. at *I5. The court also noted: We recognize that in some circumstances denial of the precise proposal submitt ed maybe found to be a "substantial burden," notwithstanding a board's protestations of willingness to consider revisions - for example, where the board's stated-willingness is disingenuous, or cure of the problems noted by the board w911,rr~iose so great an economic burden as to make amendment unworkable, ' or where the change demanded would itself constitute a burden on religious exercise. ~ Id. at * 15 n3. In this case, the City is willing to consider revisions. The statements in its decision that an application that used more space could have been approved indicate the City's willingness to ' consider a revised application. Rec. 18. The Church has also indicated that it is willing to amend its proposal to include more land. The City's willingness to consider a revised application is not disingenuous; a revised application that provides a complete noise study and that provides ' greater buffers could be approved. The Church's stated willingness to consider including ' additional property demonstrates that the economic burden is not too great and would not constitute a burden on religious exercise. 1 The Church also cited Castle Hills First Baptist Church v. City of Castle Hills, 2004 US ' Dist LEMS 4669, *9 (WD Tex, March 14, 2004) for the proposition that denial of a permit to use an unoccupied floor of a building was a substantial burden. The case actually involved a refusal to consider an application, which is a decision that leaves no possibility of future action, ' unlike a denial of a particular application. 16 3. The City's Decision Provides Sufficient Findings and Conclusions; The City Is Not Required to Provide Additional Details as to How the Application Should Be Revised ' The Church argues that the City has an obligation to set specific conditions under which it ' would allow a subsequent application. Church's Brief 34. The government has an obligation to provide reasons for its denial. ORS 227.173(3). However, it has no obligations to give precise instructions as to how the application must be amended to be acceptable. See ORS 227.173(3) (requires;reasons but does not require instructions as to how to fix defective applications). A governing J X s no authority to'bind a future governing body and therefore cannot commit to acceptance of a particular application that has not been submitted. Johnson v. Pendleton 131 Or I ' 46, 54-55, 280 P 873 (1929). By stating the basis for its denial, the City has provided guidance as to what must be done in any future application, but it is not the decision-maker's responsibility to draw a new site plan for an applicant. Here, the City noted two main defects - the lack of a noise study that addresses all applicable sound levels, and the inadequacy of the buffers between the developed portion of the property (the building and parking lots) and 'adjoining areas. What the Church has to do to ' cure the defect in the noise study is clear, it needs to provide a study that addresses all levels that r ' the Community Development Code requires to be addressed. The general concept of what the Church must do to cure the inadequacy of the buffers is clear. The Church must provide better buffers, and the City has identified three ways that buffers can be increased - greater width, elevation change, and denser vegetation. Rec. 11. Because of the multiple variables, the City is not in a position to prejudge what is needed or what is acceptable to the Church and cannot provide the Church with a blueprint for a successful ' application. It has, however, broadly indicated what is necessary to obtain approval. 17 B. RLUIPA Does Not Apply When the Government Applies Neutral, Generally Applicable ' Standards In A Non-Discriminatory Fashion Section 2(a)(2) of RLUIPA provides: This subsection applies in any case in which - ' (A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general ' applicability; (B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes; even-if the burden results from a rule of general applicability; or (C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government ' to make, individualized assessments of the proposed uses for the property involved. Subsection (C) is the subsection at issue in this case. Both subsections (A) and (B) contain the language "even if the burden results from a rule of general applicability." Subsection (C) does not contain that language or equivalent language. In interpreting statutory provisions, a court should not insert what has been omitted. PGE v. Bureau of Labor and Industries, 317 Or 606, ' 611, 859 P2d 1143 (1993). When particular language is used in several subsections and not other subsections, the omission should be interpreted as intentional. Id Here, Congress could have inserted "even if the burden is imposed under rules of general ' ' applicability" into Subsection (C), but it did not do so. To apply Section 2(a)(2)(C) of RLUIPA to cases decided under neutral land use regulations of general applicability would extend RLUIPA beyond its stated scope of application. Section 2(a)(2)(C) of RLUIPA does not apply to land use regulations of general applicability. It only applies if the land use regulations do not include substantive rules of general applicability but leave the decisions to the unbridled discretion of the local decision-maker. 18 ' The Church argues that RLUIPA applies to "individualized assessments" that result in a substantial burden. Complying with neutral, generally applicable regulations that are ' administered in a non-discriminatory fashion is not a substantial burden. The City recognizes ' that local governments can apply neutral, generally applicable regulations in a discriminatory manner. However, that is not what the City did. The Church has not challenged the City's ' fording that the same application submitted by any other entity would have been denied. At oral argument before. LUBA, the Church's attorney admitted that the City's decision was not motivated W 44y Bias against religion or against the Church. Remarks of J. Bean, LUBA Oral 1 Argument Tape 06/05/03. ' The application of neutral, generally applicable standards in a non-discriminatory fashion ' is not an individualized assessment that imposes a substantial burden. C. The Court Need Not Decide On AU "Test" For Determining What Constitutes A Substantial Burden The Church devotes a substantial portion of its brief arguing that the court should adopt a "tendency to inhibit" test for determining whether there is a substantial burden and reject the "effectively impracticable" test. Church's Briefl7-27. The City does not believe the Court should adopt any test other than the language used in RLUIPA - "substantial burden."8 ' 1. The "Tenden nhib it " Tendency To I Test Is Not Compelled By RLUIPA Or US Supreme ' Court Precedent And Should Not Be Adopted The Church argues that the "tendency to inhibit" test is mandated by RLUIPA and ' Supreme Court precedent. Church's Brief 20-23. None of the materials that the Church quoted ' from in its brief establish "tendency to inhibit" as a test or standard. The cases relied on by the ' s The City notes that the Ninth Circuit, in applying the RLUIPA substantial burden standard, has not relied on "tests" using other terminology, but simply relied on dictionary definitions to understand and apply the term ' "substantial burden." San Jose Christian College v. City of Morgan Hill, 360 F3d 1024 at 1034-35. 19 Church do not use a "tendency to inhibit" test. They are all cases dealing with unemployment claims, and all state the test in terms of pressure on an adherent to do something contrary to ' religious beliefs. ' The Church argues that a term used in legislation normally is intended to have the meaning that has been clearly defined in judicial decisions. Even if that argument is accepted, judicial decisions have not defined "substantial burden" to mean "tendency to inhibit." As many ' courts have recognized, the Supreme Court has not provided a clear and consistent interpretation of "substahfid'burden" and has changed its interpretation over time. See, e.g., Midrash Sephardi, Inc. v. Town off Sur side, 366 Fad 1214 (11th Cir 2004). The Church noted: "The , ` proper interpretation of `substantial burden' is still a matter of lively interest among the circuits and the state appellate courts." Church's Brief 28 n19. If, as the Church acknowledges, the proper interpretation is a matter of lively interest among the courts, then the Supreme Court has not adopted a test for "substantial burden" and RLUIPA therefore did not adopt the "tendency to inhibit" or any other test. The only use of the term "tendency to inhibit" quoted by the Church was a quote from ' Sherbert v. Verner, 374 US 398 (1963), in which the US Supreme Court merely acknowledged in ' a footnote that "conditions and qualifications upon governmental privileges and benefits have been invalidated because of their tendency to inhibit constitutionally protected activity." Church's Briefl 8. The actual holdings of the cases refer to "pressure to forego [a religious] ' practice," or "substantial pressure on an adherent to modify his behavior and to violate his beliefs." See Sherbert, 374 US at 404; Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 US 707, 717 (1981). The cases that the Church relies on are all unemployment cases involving coercive 20 behavior. Church's Brief 17-20. They all have similar fact patterns. A person is employed, and then either because of a Chang, of job responsibilities or schedule the person is asked or required ' e o ' to do something on the job that is inconsistent with religious beliefs (e.g. working on a person's holy day, making armaments). The person then resigns and claims unemployment benefits but is denied on the grounds that the person voluntarily left the employment. Under these ' circumstances, court have found pressure to violate a person's religious beliefs. An initial land use denial does not create similar pressure on an individual's religious beliefs orpracttces. An absolute denial of an application for needed meeting location, with no reasonable prospect of an approval, with no other sites being available for use, could put pressure ' on all members to forego group religious observances. However, no such pressure is placed if approval of a new application is not precluded and members can continue to meet in existing -nearby facilities. The only pressure is to submit a new application. That is not pressure to forego ' ` a religious practice or to violate religious beliefs. ' The "tendency to inhibit" standard advocated by the Church does not include any concepts of "significant pressure," "direct coercion," "foregoing religious precepts," or "pressure ' that mandates religious conduct." See Sherbert, 374 US at 404, Thomas, 450 US at 717. The ' requirement to submit a new application that shows greater buffers does not constitute significant pressure or direct coercion on religious beliefs, does not require the church or its members to ' forego religious o reli 'ous precepts, and does not constitute pressure mandating religious conduct. ' The Supreme Court has never adopted or even used a "tendency to inhibit" test. That ' language was used in one case, Sherbert, but not as a test. While Supreme Court decisions must be considered, an examination of the cases relied on by the Church (all of which are ' unemployment cases) demonstrates that the test, if any, used by the Supreme Court, is whether 21 the government action constitutes substantial pressure on an adherent to act contrary to religious beliefs. Sherbert, 374 US at 404; Thomas, 450 US at 717. ' The Church argues that "it is clear that `substantial burden' means nothing more than a ' `tendency to inhibit' religious exercise." Church's Brief 22. The City disagrees. "Substantial burden" means substantial burden. While the City accepts that "inhibition" and "burden" can be equated (at least in some cases), "substantial" and "tendency" have significantly different meanings. Substantial means "considerable in quantity: sufficiently large" Webster's Ninth New Collegiate Dictionary 1176 (1991).' "Tendency" means "a direction or approach toward a[n] * * * object, effect or limit." Id. at 1214. "Tendency to inhibit" does not include an y any reference to the size of the burden and therefore cannot have the same meaning as "substantial burden." If the Church's position were adopted, any denial of a land use application by a religious entity could be viewed as a "tendency to inhibit." Yet RLUIPA was not intended to provide immunity from land use regulations. See Cong. Rec. S7774-01, S7776 (2000) (Joint Statement of Senators Hatch and Kennedy); see also Petra Presbyterian Church v. Village of Northbrook 2003 US Dist LEMS 15105, **38-39 (ND Ill Aug, 28, 2003); Konikov v. Orange County, 302 F ' Supp 2d 1328, 1346 (MD Fla 2003); Grace United Methodist Church v. City of Cheyenne, 235 F Supp 2d 1186, 1193 (D Wyo 2002). If RLUIPA does not provide immunity from land use regulations, a local government must be able to deny an application for religious land use. ' Therefore, a mere denial cannot be a "substantial burden." Because a denial can be viewed (and apparently is viewed by the Church) as having a tendency to inhibit, the "tendency to inhibit" 9 See also the discussion of the meaning of "substantial burden" in San Jose Christian College, 360 F3d at 1034-35. 22 standard is not appropriate for use in the RLUIPA context, because that would make any denial a substantial burden and create an immunity. The Church argues that the Court should adopt the "tendency to inhibit" test. The City ' believes that the "tendency to inhibit" test (or more properly, the "pressure to violate religious beliefs" test) should be reserved only for unemployment and similar cases in which a decision results in pressure on a specific individual to take action inconsistent with the person's religious beliefs. This is not such a case. The City does not believe that any "test" that uses terms other than the teini`s iii RLUIPA is needed or appropriate. The test should be simple two part test: (1) What is the nature of any burden imposed, and (2) Is that burden substantial? ' In the Petition for Review, the Church advocated a standard that it referred to as a "moderate threshold" or "reasonable" standard, that used phrases such as "significantly inhibit or -restrain, meaningfully curtail, deny reasonable opportunities for religious exercise," and "relatively inaccessible within the city limits." Petition for Review 25. In its brief on the merits, the Church does not advocate for a moderate threshold or a reasonable standard, but for the lowest possible threshold standard - "tendency to inhibit." The Church has abandoned all qualifying language such as "significantly," "meaningfully," "reasonable," or "relatively." The ' . term at issue is "substantial burden," and by removing any qualifying language, the Church is taking "substantial" of the substantial burden test. ' Amicus curiae The Becket Fund argues that the "effectively impracticable" standard ' should be limited to facial challenges and that the "traditional Free Exercise" standard of ' Sherbert and other cases should be adopted. Becket Fund Brief 4. There are two major problems with this argument. First, if a different standard is applied to as-applied and facial challenges, the result will be a situation in which a regulation that would be upheld in the face of a facial 23 challenge is nevertheless rendered totally ineffective because it could never be used to deny an application. The second problem is that Sherbert, after the decisions in Employment Division v. Smith, 494 US 872 (1990) and City of Boerne v. Flores, 521 US 507 (1997), does not establish ' the standard for consideration of as-applied Free Exercise claims. Rather, the standard for as- applied challenges when a neutral law of general application is applied is the rational basis standard set forth in Smith. The Becket Fund argues that the Church did comply with the City's requirements. Becket Fund Brief fihat argument is precluded by the decisions below. LUBA upheld the City's ' denial on all grounds other than RLUIPA and that portion of LUBA's decision was not appealed. Therefore, the issue of whether the application complied with applicable standards has been ' resolved - it did not. ' The basic premise of the Becket Fund's argument is that a denial of an _-application that should have been approved-is a substantial burden. That argument does not ' apply to this case because the application was properly denied under neutral, generally applicable standards. The cases cited by Becket Fund do not support its position. The Becket Fund relies on ' the district court case in Westchester Day School, which has been vacated on appeal. The Becket Fund cites to Elsinore Christian Center v. City of Lake Elsinore, 270 F Supp 2d 1163 (CD Cal 2003) without noting the Court in that case found RLUIPA to be unconstitutional. In Murphy V. Zoning Comm'n of Town of New Milford, 289 F Supp 2d 87 (D Conn 2003), Cottonwood Christian Center v. Cypress Redevelopment Agency, 217 F Supp 2d 1203 (CD Cal 2002), First Covenant Church of Seattle v. City of Seattle, 120 Wn 203, 840 P2d 174 (1992), Alpine Christian Fellowship v. Cy. Commis of Pitkin Cy, 870 F Supp 991 (D Colo 1994), and Jesus Center v. Farmington Hills Zoning Bd. of Appeals, 215 Mich App 54, 544 NW2d 698 (1996), the 24 1 decisions were more than an initial denial in an iterative land use process - they were denials or regulations that precluded or regulated future use. The Becket Fund cites San Jose Christian College as a facial challenge (Becket Fund Brief 4), yet that case involved an "as-applied" ' challenge to a specific site and permit. The cases cited by the Becket Fund do not compel the conclusion that a different test should be used in as applied challenges as compared to facial challenges. 2. The Court Does Not Need To Decide Whether The Effectively Impracticable -Standard Should Be Adopted The Church has argued against the "effectively impracticable" test. The test is appropriate, at least in cases in which a local government has acted to make a religious practice effectively impracticable. Making a religious practice effectively impracticable clearly imposes a substantial burden. Whether there may be some situations in which a substantial burden is imposed by a land use action that does not make religious land use effectively impracticable does not need to be resolved in this case.10 ' Even if there may be some actions which constitute a substantial burden but fall short of meeting the "effectively impracticable" test, this is not one of them. The requirement to submit a new application is a mere inconvenience, not a substantial burden - it is no greater an imposition than the requirement to submitting a new application. Even the Church admits that submitting an ' application is not a substantial burden. Corp. of the Presiding Bishop v. City of West Linn, 192 ' Or App at 586. The Church's members may continue their religious practices in their existing churches until a new application is submitted and approved their religious practices have not 10 A RLUIPA "as applied" challenge will almost always arise in the context of a denial of an application for a religious land use. The effectively impractical test may be appropriate as a test that distinguishes between denials that preclude any development of the property for religious use and denials that are specific to the application and do not preclude amended applications when compliance with applicable standards seems possible with a revised application. 25 1 been substantially burdened. 3. The Court of Appeals Did Not Adop t The "Effectively Impracticable " Standard ' ' The Church argues that the Court of Appeals adopted the "effectively impracticable" ' standard. Church's Brief22. While the Court of Appeals did refer to the standard, a closer examination of the decision reveals that the Court did not adopt "effectively impracticable" as a standard or use it as the only basis for its decision. The first. mention of the "effectively impracticable" standard in the Court of Appeals decision wag-in *tlie discussion of Civil Liberties for Urban Believers v. City of Chicago, 342 F3d 752 (Th Cir 2003) (CLUB). Corp. of Presiding Bishop, 192 Or App at 590-91. CLUB was only one of many cases mentioned by the court in its discussion of substantial burden and "effectively impracticable" was only one of many characterizations of what constitutes a substantial burden. -192 'Or App at 588-95 (discussion of US Supreme Court, federal circuit court, federal district ' - court, and state court cases). The Court of Appeals'did not unquestioningly accept the decision in CLUB, but noted that part of the CLUB decision, which stated that the action must be the direct cause of the burden, appeared contrary to the Supreme Court decision in Sherbert. 192 Or App at 591 n16. ' After considering all the various standards and determining what the actual extent of the burden was, the Court of Appeals concluded that "the denial of the church's first and only application here, and the resulting need by the church to submit a second application, does not ' constitute such a burden. See, e.g., Westchester Day School, 280 F Supp at 240 (`mere ' inconvenience is insufficient to show substantial burden.')" 192 Or App at 598." ' 11 Other courts have also noted that a second or subsequent denial is more likely to be a substantial burden. See Guru Nonak Sikh Society v. County'of Sutter, 326 F Supp 2d 1140 (ED Cal 2003). - 26 After stating four reasons why the burden imposed was not a substantial burden or otherwise in violation of RLUIPA, the Court of Appeals summarized its decision as follows: ' For all of those reasons, we conclude that the city's ordinances, as applied in the city's decision, did not impose a substantial burden on the church's religious ' exercise, Stated in the terms of the Seventh Circuit's decision in CLUB, neither the building of a new church (and the concomitant expansion of the church community) nor, in the meantime, the ability of current members to reasonably ' conveniently engage in worship been rendered "effectively impracticable." 192 Or App-at 599. This is only the second mention of "effectively impracticable" in the decision and it was used only as an alternative way of stating the court's basic conclusion, that 17- the City's action did not substantially burden religious exercise. When faced with determining whether the an initial denial of an application that allows a subsequent application is a substantial burden, the court used a "mere inconvenience" standard, and the Church has admitted that a mere inconvenience is not a substantial burden. 192 Or App at 586. The Court of Appeals repeated its basic decision in terms used by CLUB but did not adopt the "effectively impracticable" standard. It also did not use that standard in deciding whether any of the effects of the City's decision ' constituted a substantial burden. ' The Court of Appeals thoroughly discussed the nature of the burdens imposed, and concluded that the burdens were not substantial because the church members' ability to worship was not denial did not put pressure on anyone to modify behavior or beliefs, and ' impaired, the ' the burden of submitting a new application was a mere inconvenience. 192 Or App at 597-98. ' The burden of submitting a new application is not substantial. The Church argues that the Seventh Circuit's interpretation of "substantial burden" in CLUB is wrong. Church's Brief 27-30. The City does not believe that the Court has to expressly adopt or reject the Seventh Circuit's position. The Court should simply rely on the plain language set forth in RLUIPA - substantial burden. 27 ' 4. If Any Test Is Adopted, It Should Be The "Significantly Great Restriction" Test The best approach to the "substantial burden" standard is the approach taken by the Ninth Circuit in San Jose Christian College, 360 F3d 1024. In that case, the court noted that "substantial burden" was not defined. The court relied on the plain language of the statute, using dictionary definitions as aids to determine the meaning of the two words. The court found that ' "substantial" means "significantly great" and that "burden" means "restriction." 360 F3d at 1034-35: Therefore, a "substantial burden" is a "significantly great restriction." If any "test" is to be used to. determine what constitutes a substantial burden, the test should be whether the action of the government results in a significantly great restriction. 4• The Church argues at length that San Jose Christian College and other Ninth Circuit decisions do not preclude the "tendency to inhibit" test. Church's Brief 24-27. That argument at --best misses the point. The "tendency to inhibit" test is inconsistent with San Jose Christian ' - College because "tendency to inhibit" has a substantially different meaning that "significantly ' great restriction." "Significantly great restriction"*is an appropriate test - it means essentially the same thing as "significant burden." The Church also argues that the Ninth Circuit has used a different articulation of the ' "tendency to inhibit" test. Church's Brief 25. The Ninth Circuit, consistent with Supreme Court precedent, has found that "substantial pressure on an adherent to modify his behavior and to violate his beliefs" is a substantial burden. Guam v. Guerrero, 290 F3d 1210, 1222 (9`h Cir 2002). It is misleading to refer to this standard as a "tendency to inhibit" test. The actual ' standard requires both substantial pressure (not just a tendency to inhibit) and that the pressure be on a specific adherent to modify behavior and violate beliefs. That test simply is inapplicable in a land use case that is not directed at an individual's religious practices. 1 28 1 D. Even Under the Test Proposed by the Church the City's Decision Does Not Violate RLUIPA The standard proposed by the Church is the standard used by the US Supreme Court in ' several cases related to unemployment claims. The standard as used in those cases is whether the ' government has put "substantial pressure on an adherent to modify his behavior and to violate his beliefs."' See Thomas, 450 US at 717-18. "Tendency to inhibit" is at best shorthand for this test and at worst a deliberate misstatement of the test. . The burden.imposed in this case is the burden of submitting a new application that complies with applicable zoning ordinances. The decision does not put substantial pressure on anyone to modify behavior or violate beliefs. 1 VI. A REMAND IS NOT REQUIRED ' As discussed above, the Court of Appeals correctly decided this case, and no remand is necessary. If the Court wishes to clarify the standard to be applied, it may do so without 1 remanding. Under any test, the burden imposed by the City, which is the requirement to submit a r new application, is not a substantial burden - it is at most a mere inconvenience. ' The Church argues that the City must consider the Church's application in light of the compelling interest, least-restrictive means test. Church's Brief 35. Assuming that the City's ' decision could be considered to impose a substantial burden, the City found that maintaining the quality of residential neighborhoods is a compelling governmental interest.- Rec. 18. The City continues to take the position that protection of residential neighborhoods is a compelling 1 governmental interest. ' As to whether the denial was the least-restrictive means of achieving the governmental interest, the City had no lessor restrictive option. As discussed in more detail at pp 29-32 below, the City could not have approved the application with conditions. Given the application before .r 29 ' it, the City had no less restrictive options. The Church suggests that "there will be a host of options available to the City to ensure ' that its concerns and interests are protected." Church's Brief 35. The City's view is that "there ' will be a host of options available to the Church" in presenting a new application. It is the Church's choice as to which of the options it wants to follow - the City does not dare to presume to dictate what reconfiguration of the lot is acceptable to the Church. ' A. Application of ORS 197.522 In.theiar.briiefs, both the Church and the United States of America argue that the City 1 should have applied ORS 197.522, which requires local governments to approve applications with conditions of approval, if possible. Church's Brief 36-38, US Brief 36. The Church did not -.make any argument based on ORS 197.522 before the City Council, and has thereby waived any argument relating to that statute. ORS 197.835(3) ("Issues shall be limited to those raised by any participant before the local hearings body'. The Church also failed to preserve the issue by not raising the issue at LUBA. Corp. of Presiding Bishop v. City of West Linn, 45 Or LUBA 77, 92 n5 (2003). Even if the issue could be raised under the circumstances of this case ORS 197.522 did ' not require the City to approve the application and impose conditions. ORS 197.522 provides: ' A local government shall approve an application for a permit, authorization or other approval necessary for the subdivision or partitioning of, or construction on, any land that is consistent with the comprehensive plan and applicable land use regulations or shall impose reasonable conditions on the application to make the proposed activity consistent with the plan and applicable regulations. A local government may deny an application that is inconsistent with the comprehensive plan and applicable land use regulations and that cannot be made consistent through the imposition of reasonable conditions of approval. ' This statute must be read in the context of the authority of local governments to determine ' compliance with applicable requirements by the imposition of conditions of approval. If an 30 applicable criterion or standard is not met, then conditions to assure compliance may be imposed only if the government finds that the condition, if fulfilled, would assure compliance and that it is ' feasible to comply with the condition. See Hodge Oregon Properties v. Lincoln County, 194 Or App 50, 55-56, 93 P2d 43 (2004); Rhyne v. Multnomah County, 23 Or LUBA 442, 447-48 (1992).' Any findings related to feasibility and compliance must be supported by substantial ' evidence. In this case,- additional property would be needed to provide greater buffers. If the City had simplyr}posed an additional width requirement, it would have needed to find that it is feasible to provide the additional area and would have needed to find that the additional area would provide an adequate buffer.. The record contains no evidence of an alternate site plan with a greater buffer and no other evidence to support a finding that providing additional setback would be feasible. The record also does not contain evidence as to the width (or density of ' r vegetation or change in elevation) that would be necessary to provide an adequate buffer. While the City accepts that evidence could be provided on these issues, the evidence is not in the record and the City had to make a decision, given the time limits for making land use decisions. The City could not have approved the application with conditions because the City would not have been able to make the required findings to do so. Also, the noise study was incomplete, and the noise study is necessary so that the City can decide whether the standard has been met. For the decision to have the evidentiary basis required ' by the code, the decision-maker must have the noise study available. A condition requiring post- decision submittal of a complete noise study does not assure compliance because compliance is achieved only if the study is available to the decision-maker. The application was for a specified 3.85 acre parcel. The City found that the property 31 was not sufficiently large to provide adequate buffers. Although the Church may have indicated a willingness to expand the area, it did not specify how much, or which, additional land could be ' made available and did not provide a revised site plan. The City has no authority to approve a ' land use application that includes area outside the area for which the application was filed. See Corp. of Presiding Bishop, 192 Or App 567, 596 nl9 (2004). The notice of the hearing had been provided for the 3.85 acres, and if the area was to-be enlarged, a new notice would have been required. Bigley. v, City of Portland, 68 Or App 508, 4 P3d 741 (2000); Arlington Heights HomeownerU sri: v. City of Portland, 41 Or LUBA 185,199 (2001). Without a specific proposal for an enlarged area, which would have been treated as a new application, the City could not impose a condition that would have had the effect of expanding the property subject to the decision. ORS 197.522 also limits the City's authority to imposing "reasonable" conditions. While any condition that an applicant agrees to is presumably reasonable, the Church had not specified how much or which additional land was available, or how the enlarged property could be configured." Without that information, the City had no basis to determine whether any condition it might deem appropriate would be "reasonable." The issue of adequate buffering is complex, involving width of the buffer, thickness of vegetation, and elevation changes (if any). It is an applicant's responsibility, not the local government's, to choose how it will provide adequate buffers. The Church's position would ' essentially require the City to develop a new site plan, with a new boundary for the property and 1' To impose such a condition requiring greater buffers, the City would need evidence that the new proposed design, which would include boundary changes and reconfiguration and moving of at least the parking areas, meets the code criteria. These changes would likely require a different grading plan, a different storm drainage plan, and a different on-site traffic circulation plan. Without a specific plan for development that includes the additional area and a revised layout, the City's decision as to issues other than buffering would not be supported ' by substantial evidence that the criteria are met. 32 a new configuration of the development (structure and parking lot).` That is the Church's ' responsibility, not the City's. Wiper v. City ofEugene 2004 Or LUBA LEXIS 69 (May 10, ' . 2004) ("the applicant, and not the local government, has the obligation under the statute to determine and propose `reasonable conditions' that might allow approval"). VII. CONSTITUTIONAL ARGUMENTS t If the Court concludes that the City has violated RLUIPA or that RLUIPA compels additional analysis by the City the Court must consider the constitutionality of RLUIPA. If the City's actibff-Abldtes RLUIPA, it is unconstitutional as applied. Intervenor the United States of America argues that RLUIPA is constitutional. The City ' believes that it is possible to interpret RLUIPA so that it is constitutional. To the extent that RLUIPA protects religion from outright prohibitions, discrimination, or unnecessary restrictions -that unduly impede religious practices, it is constitutional. To the extent that RLUIPA provides ' special benefits for religion, favoring religious uses over non-religious uses, it is unconstitutional. To the extent that it is an effort by Congress to create rules beyond what are needed to enforce the 14' Amendment, it exceeds Congress's power. Legislation should, if possible, be interpreted to be consistent with constitutional provisions. Salem College and ' Academy, Inc. v. Employment Div., 298 Or 471, 481, 695 P2d 25 (1985). Therefore, RLUIPA should be interpreted to not provide special benefits to religion not allowed to others, but should be interpreted consistent with the Constitution to provide protection for, but no special benefits ' for, religion. 13 BY configuration, the City means the location of the structure and parking lot, not the size of the structure. 33 1 A. RLUIPA. If Interpreted As Proposed By The Church Violates The Establishment Clause ' 1. A statute that fails to meet any of the three parts of the Lemon Test violates the Establishment Clause ' The first clause of the First Amendment to the United States Constitution (the Establishment Clause) provides: "Congress shall make no law respecting an establishment of ' religion.1114 In Lemon v. Kurtzman, 403 US 602, 612-13 1971 the U.S. Supreme Court adopted ' the following three part test to determine whether a statute violates the Establishment Clause: First,.t~e htatute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education*v. Allen, 392 US 236, 243 (1968); finally, the statute must not foster "an excessive government entanglement with religion." Walz [v. Tax Commission, 397 US 664,] 674 [(1970)]. ' A statute that does not satisfy-all parts of the test is unconstitutional. Edwards v. Aguillard, 482 --Us 578, 583 (1987). The government may legislate in areas relating to religion, but neutrality towards religious belief is required. Agostini v. Felton, 521 US 203 (1997); Bd. of Education of Kiryas Joel Village School District v. Grumet, 512 US 687, 705 (1994) (the Religion Clauses ' "commandD neutrali ty'~. 2. The principal purpose of RLUIPA is to advance religion A statute that has some religious motivation may not violate the first part of the Lemon test, but "the First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion." Wallace v. Jaffree, 472 US 38, 56 (1985). Courts ' can look behind prepared purpose statements and consider the text in determining the true ' 14 The First Amendment continues: "or prohibiting the free exercise thereof' (the "Free Exercise" Clause). ' The Establishment Clause and the Free Exercise Clause are collectively referred to as the "Religion Clauses." .3 4 F purpose of a statute. See Al Ghashiyah v. Dept. of Corrections, 250 F Supp 2d 1016, 1022-26 (ED Wis 2003) (court looked beyond stated purpose of statute). ' ' If the purpose of Section 2(a) of RLUIPA is to protect religious landowners from ' discrimination, RLUIPA has a legitimate purpose. If, however, its purpose is to advance religion by granting rights to religious landowners not enjoyed by others, then its purpose is to advance religion. The position advocated by the Church would result in an interpretation of RLUIPA that all denials-of a:larid use application by a religious entity would constitute a substantial burden. If this position is accepted, it must also be accepted that the purpose of RLUIPA is to provide 4 special benefits to religious landowners. That purpose advances religion. Furthermore, because the Church also seems to disagree that local governments have a - legitimate government interest in regulating land use (the Church does not accept that protection of residential neighborhoods is an important government interest, and protection of neighborhoods is one of the key concepts in land use planning and regulation), no denial of a land use application would be supported by a compelling governmental interest. The ultimate result under the Church's view, would be that RLUIPA mandates an approval every time a religious entity submits an application, which would not even have to be a complete application. The purpose of RLUIPA, assuming the Church's view of RLUIPA is correct, is to advance ' religion by giving religious entities an absolute right to build whatever structure they want in any location. ' The United States argues: "It is a permissible legislative purpose to alleviate a special, government-created burden on religious belief and practice." US Brief at 34. Assuming that to be correct, the burden*must be a special burden on religious belief and practice, not merely the 1 . 35 inconvenience of complying with neutral, generally applicable regulations that are applied in a nondiscriminatory fashion. A federal regulation that prohibits local governments from applying neutral generally applicable laws does not alleviate a special government created burden on ' religious belief or practice. .The United States also argues that statutes that "alleviate significant government of religious organizations to define and carry out their religious interference with the ability mission" have a legitimate secular purpose. Again, application of neutral generally applicable laws in a nondiscriminatory fashion does not constitute significant government interference in religious organizations. None of the arguments made by the United States support the conclusion w. that the purpose of RLUIPA is not to advance religion. Because the purpose of Section 2(a) of RLUIPA is to advance religion, that section fails the first part of the Lemon test. Section 2(a) therefore is unconstitutional under the Establishment Clause. 3. The principal effect of Section 2(a) is to advance religion In some post-Lemon cases, the courts have conribined the second (principal effect to advance religion) and the third (excessive entanglement) parts of the Lemon test. See, e.g., ' ' Agostini v. Felton, 521 US at 222-23. Under Agostini, excessive entanglement is a sufficient ' reason, but not the only sufficient reason, for finding an inappropriate effect. See Mitchell V. Helms, 530 US 793 (2000). This brief addresses the two parts separately. Section 2(a), if interpreted as advocated by the Church, essentially exempts religious institutions from complying with all the details of land use law. If the Church's approach to RLUIPA is adopted, the principal effect of RLUIPA Section 2(a), both generally and specifically in this case, is that a religious land use application is entitled to an approval regardless of 316 compliance with neutral, generally applicable laws. A religious applicant would be entitled to an 'cant for a similar development would be denied. Clearl approval when any non-religious apple Y the principal effect of Section 2(a) is to advance religion. One factor in determining whether the effect of a statute is to advance religion is the extent to which an exemption is extended to nonreligious persons or institutions. Al Ghashiyah, 250 F Supp 2d at 1025-26. Here, Section 2(a) of RLUIPA provides an exemption for religious persons and institutions that is not extended to anyone else. Ariotfier factor is the "magnitude of the resulting burden placed on nonbeneficiaries" Id. In this case, neighbors would be burdened with a building that is incompatible with the neighborhood and that is not adequately buffered from neighboring properties. That is a 4 ' substantial burden on the neighborhood. Another factor is the "substantiality.of the free exercise burden removed due to the exemption." Id Here, the church members already have an existing congregation and adequate facilities in which to meet. Rec. 309-11, 316-17, 596. The new building would simply be closer to some of their homes. Id. The Church could have proposed a development more in keeping ' with the neighborhood by providing greater buffering. Because the Church has admitted that it ' could use more property, thereby allowing greater buffering, the burden of designing a development that is consistent with the neighborhood is not great. The only "burdens" that would be lifted are the "burden" on church members of a longer drive to church and the "burden" ' ' of submitting a new application for a building and parking lot that addresses and complies with ' all the standards. To the extent these are burdens, they are slight. As the United States points out, RLUIPA has several separate provisions relating to land use. Section 2(b)(1) prohibits state and local governments from imposing or implementing land i 37 ' use regulations "in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." 42 USC 2000cc(b)(1). Section 2(b)(2) prohibits governments from imposing or applying land use regulations that discriminate against ' any entity on the basis of religion or religious denomination. 42 USC 2000cc(b)(2). Section 2(b)(3). prohibit local governments from imposing or implementing land use regulations that either totally exclude or unreasonably restrict religious assemblies within the territory of the local government.; 42 USC 2000cc(b)(3). As the..&&d States pointed out, the restrictions at issue here, those of Section 2(a)(1) should be contrasted with Section 2(b). Section 2(a)(1) imposes the compelling government 4* interest/least-restrictive means test on imposition or implementation of a land use regulation that ' imposes a substantial burden on a religious entity. The 2(b) restrictions are all directed against unequal treatment. They prohibit discrimination in adoption and application of legislation and ;:;j prohibit local governments from prohibiting or placing unreasonable restrictions on religious land use. These provisions are clearly within the scope of legislation that is permissible under the second part of the Lemon test. They have the legitimate secular purpose of protecting ' religion, but d o not advance religion. ' In contrast, Section 2(a)(1) arguably is directed to situations that do not involve discrimination, either in the legislation itself or the application of the legislation, and that do not 1 involve outright prohibitions or unreasonable restrictions. If Section 2(a)(1) is interpreted, as the ' Church would have it interpreted, to apply to a nondiscriminatory application of neutral laws of general applicability, its effect is to advance religion. The United States argues that none of the civil rights legislation that Congress has passed would survive the scrutiny that the City seeks to impose. US Brief at 41. That argument is 1 38 ' i misplaced, because none of the other legislation involved religious issues where the free exercise 1 rights are balanced against the Establishment Clause - none of the cited civil rights legislation i had to consider the Establishment Clause. i The United States argues that the City has not argued that RLUIPA's land use provisions would have an effect similar to the effect noted by the Sixth Circuit in Cutter v. United States, i 349 Fad 257 6 h Cir (2003), in which the court noted that under the institutionalized persons i provisions of RLUIPA, prisoners are encouraged to adopt religion in order to benefit from the statute. US Brief 41. The same concerns do apply as to the land use provisions of RLUIPA. If i local governments cannot apply neutral generally applicable statutes to religious entities, any ` applicant will be able to claim a religious purpose for violating height, size, setback, lot coverage . or other land use limitations, siting a non-residential building in a residential area, or otherwise violating applicable land use regulations. Private schools may be religious or not. If religious ' schools are entitled to preferential treatment under RLUIPA, there will be a strong inducement to ' add a religious aspect to a private school seeking a land use approval. Similarly some health clubs/exercise facilities have a religious affiliation and some do not. Again, if different standards are used for the religious ones, then RLUIPA encourages people to at least claim a religious ' motivation." Any type of land use application by a private charity, social service organization, service organization, or even social club could potentially face different standards depending on whether a religious motivation is involved. If RLUIPA does mandate in a different approval i standard for religious uses, it does encourage religion. The United States also argues that the City has not presented any evidence that would ' is By religious motivation the City means that any applicant could claim that it is providing services ' because its religious beliefs include a commitment to charity or public service. 1 39 justify the facial invalidation of Section 2(a). US Brief 41. The City agrees that Section 2(a) can be interpreted so that it does not have the effect of advancing religion. However, if it is interpreted to apply to nondiscriminatory application of neutral laws of general application, then it would have the effect of advancing religion. In Agostini, the US Supreme Court held that where governmental aid to education was ' being challenged, the three criteria to be considered in determining whether the government action had an impermissible effect was whether the action (1) results in governmental indoctrimtion,,(2) defines its recipients by reference to religion, or (3) creates an excessive entanglement. 521 US at 233-34. The same concepts can be applied to situations other than school aid. Any legislation that provides benefits by reference to religion is one that advances religion. RLUIPA provides benefits (the ability to get a land use approval without complying _-with applicable regulations) and defines the recipients of the benefits by reference to religion - religious persons and entities get the benefits, others do not. This is inconsistent with the Establishment Clause. See Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV L REv 1810,1850 (2004). ' The primary effect of Section 2 of RLUIPA, if interpreted in the manner advocated by the ' Church, would be to advance religion, not to put religion on an equal basis with others. So interpreted, Section 2(a) of RLUIPA fails to meet the second part of the Lemon test and therefore violates the Establishment Clause. 4. RL UIPA results in excessive entanglement of Church and State ' The third part of the Lemon test is whether the statute results in excessive entanglement between government and religion. Lemon, 403 US at 612-13. Under Section 2(a) of RLUIPA, every time a land use application is submitted by a religious applicant (or someone claiming to be 40 ' a religious applicant), the government will have to determine whether its neutral approval standards of general applicability somehow burden the religious exercise of the applicant. To do ' so will in many cases require an inquiry into the religious beliefs and practices of the religion. ' For example, Section 2(a) of RLUIPA effectively requires a government to determine whether'a particular position stated by an applicant is a claim based on religious exercise or on non-religious convenience or reference. Here, the Church sought approval of a P 16,500 square foot building a nd accompanying 179 space parking lot. Rec. 10. The City Council found that the lot was no.t,f arge enough to accommodate the proposed development, given the size of the building and parking lot and consequent incompatibility with the neighborhood. Rec. 12-14. In most cases when a building is too big for a lot, the simple response of the government is to t require that the building be smaller. However, in this case, the Church claimed that the proposed --building size was required. See Rec. 85. Although the City has accepted that the Church needs a building of this size, the Ci tY g ~ fiY should not have to entangle itself in the issue of whether the building size, layout, or orientation is related to religious exercise or is used for some other purpose. But RLUIPA requires a local ' government to either inquire into that issue or abandon important provisions of its land use ' regulations.16 Section 2(a) of RLUIPA promotes excessive entanglement of government and religion by 1 introducing religious considerations as an overlay to otherwise neutral, generally applicable land use regulations. Local governments should not be forced to ask questions as to why an applicant 16 In responding to the Church's arguments, the City has attempted to restrict itself to this case, not to other cases. The City accepts the Church's position that it needs a church of this size, but notes the risk that some organization masquerading as a religious entity might argue that its religious doctrine requires it to have the largest and most visually prominent building in the area. In that situation, under the Church's point of view, the City would ' be imposing a substantial burden in enforcing most aspects of its zoning code. 41 is not complying with applicable standards and should not have to try to determine whether the stated reasons relate to religious exercise or not. ' Many of the RLUIPA cases decided to date show an excessive entanglement between ' government and religion in attempting to decide a case. For example, in Cottonwood Christian Center v. Cypress Redevelopment Agency, the court discussed at length the development of the church and its religious beliefs and the church's need for a specific size and type of building. 218 F Supp 2d 1.203, 1211-12, 1227 (CD Cal 2002). Neither the local government nor the courts should hgv q=erjbroil themselves in a determination whether a particular religion requires a Particular type of building. To have to do so results in excessive entanglement of government in religion and can result in statements by government decision-makers or courts that appear to be ' endorsements of religions, or at least of religious needs. In this case, the Church has provided extensive justification of its need for a building of ' this size. The City, LUBA and the courts should not have to consider the religious justification. ' But under RLUIPA, particularly if the Church's interpretation is followed, local land use decision-makers and reviewing entities must concern themselves with these issues to know ' whether their decision is creating a substantial burden on a religious applicant. For example, ' courts should not have to provide religious justifications for projects that would not otherwise be approvable, such as in Cottonwood Christian Center, and should not have to decide whether a purported religious school is in fact a simple day care facility, see Grace United Methodist r Church v. City of Cheyenne, 235 F Supp 2d 1186 (D Wyo 2002). If RLUIPA is interpreted as ' compelling local governments to grant approvals when any other applicant would have been denied under neutral rules of general applicability, RLUIPA will unnecessarily entangle the courts in issues that the Establishment Clause commands courts and other governmental entities 42 ' to stay out of. Section 2(a) does not pass the third part of the Lemon test. In fact, if the Church's ' proposed interpretation is accepted, Section 2(a) of RLUIPA does not pass any part of the Lemon test. It therefore violates the Establishment Clause. B. Congress Exceeded Its Authority in Enacting RLUIPA 1. Historical Background to RL UIPA The history leading to the enactment of RLUIPA is important in understanding how RLUIPA eX:~Zec~; One court has characterized RLUIPA as "the latest act in an ongoing tug-of- war between Congress and the Supreme Court." Elsinore Christian Center v. City of Lake ' Elsinore, 270 F Supp 2d 1163, 1168 (CD Cal 2003). The tug-of-war started in 1990, when the Supreme Court decided Employment Division v. Smith, 494 US 872 (1990). Id. Prior to Smith, -the Court had applied a test from Sherbert in some Free Exercise Clause cases. Sherbert held that government actions that substantially burden a religious practice can be upheld only if supported by a compelling government interest and only if the government uses the least- restrictive means of protecting the government interest. In Smith, the Supreme Court held that the Sherbert holding was limited to unemployment cases and that the standard in Sherbert does not apply-to neutral laws of general applicability. Smith, 494 US at 879, 883-84. In response to Smith, Congress, at the urging of various religious groups, enacted the ' Religious Freedom Restoration Act of 1993 (RFRA), codified at 42 USC § § 2000bb et seq. ' RFRA attempted to impose a variant of the Sherbert test on all government acts that substantially burden religious exercise, even when the burden is imposed by a neutral law of general applicability. Lower courts around the country upheld RFRA against constitutional challenges, but the 43 US Supreme Court in City of Boerne v. Flores struck down RFRA as applied to states and local governments. Section 5 of the Fourteenth Amendment was claimed as the basis for Congress's authority to adopt RFRA. Section 5 gives Congress the power to enforce the Fourtheenth ' Amendment." In City of Boerne, the Court held that Congress's actions exceeded its authority under Section 5 because Congress was defining and expanding rights, not enforcing existing ' rights. ' In response to City of Boerne, Congress adopted RLUIPA. RLUIPA, like RFRA, attempts to reinstate the substantial burden/compelling interest/least-restrictive means test. There are a few differences between RFRA and RLUIPA. First, RFRA applied across the board, ' whereas RLUIPA applies only in the land use and institutionalized persons contexts. RLUIPA 2, 3. Furthermore, the substantial burden/compelling interest/least-restrictive means test that was included in both RFRA and RLUIPA applies under RLUIPA only if the burden (1) is imposed in connection with a federally funded activity, (2) affects interstate commerce, or (3) is imposed by an "individualized assessment" regarding the proposed use of the property. RLUIPA § 2(a)(2). ' 2. RL UIPA Is Beyond the Enforcement Authority of Congress ' The "individualized assessment" language was an attempt to rely on language from Smith that may have acknowledged that the Sherbert test may still be applicable in some situations. However, the Court in Smith made it clear that the only possible use of the Sherbert test was ' "where the State has in place a system of individual exemptions, it may not refuse to extend that 1 17 Section 5 of the Fourteenth Amendment provides: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article:' 44 system to cases of `religious hardship' without compelling reason." 494 US at 884 (emphasis added). ' The Court in Smith noted that Sherbert involved a claim for unemployment compensation from someone who had chosen to discontinue employment rather than working on Saturday contrary to the person's religious beliefs." Id., 494 US at 883-84. The state scheme prohibited ' unemployment compensation from being to distributed to one who had voluntarily left employment, but allowed exemptions for "good cause." Id. The state considered various non- religious M 99P s 6 be "good cause" but did not consider a religious restriction to be "good ' cause." Id. The Court in Smith noted that while strict scrutiny might make sense in situations in which governments grant individualized exemptions under standards that provide no guidance, strict scrutiny is not and should not applicable when the government is applying neutral laws of general applicability. Id. at 885. In Sherbert, the situation was truly individualized. There were no standards as to what constituted "good cause." In contrast, the City is applying pre-existing standards that limit the City's discretion and is not determining whether the Church is entitled to an exemption. ' Individualized assessments and individualized exemptions are not the same. Not all individual assessments are individual exemptions. The only possible use of the Sherbert standard allowed by Smith and City of Boerne is for individual exemptions in which exemptions for non-religious reasons are allowed but exemptions for religious reasons are denied. Congress, by attempting to extend the application of the Sherbert test to situations that do not involve ' individualized exemptions, is not enforcing the law but is usurping the courts' role in interpreting the scope of constitutional protections and applying the law. The court in Elsinore Christian $ The employer changed the work schedule from a five-day to a six-day week. 1 . 45 Center v. City of Lake Elsinore held that RLUIPA is unconstitutional because denial of a conditional use permit is not subject to strict scrutiny under Sherbert and its progeny and ' therefore "RLUIPA cannot be said to effect a simple `codification' of existing constitutional ' law." 270 F Supp 2d at 1179. That holding is consistent with Smith and City of Boerne. In this case, no exemption was involved. The Church's application was judged under neutral generally applicable laws and the applicant did not apply for an exemption. Furthermore, ' as the US Supreme Court made clear in Smith, an individualized exemption is one that is essentially sta chess. The Court recognized that in the employment context, the typical ' standard was whether a person had "good cause." 494 US at 884. The Court noted its previous precedent that held that the "good cause" standard created a mechanism for individualized exemptions. Id. However, the court distinguished the "good cause" standards from cases .--applying generally applicable law. Id. In this case, the City was not applying a good cause standard that imposed no limits on discretion, but was applying generally applicable law that ' imposed specific criteria for the City's decision. As the term was used in Smith, the Council's decision was not individualized and it was not an exemption. As applied in this case, RLUIPA ' Section 2(a) exceeds Congress's authority. ' In Smith, the Court held that "generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.„ 494 US at 886 n3. RLUIPA attempts to overturn Smith by requiring a ' compelling interest justification for the application of generally applicable, religion-neutral laws. In City of Boerne, the Court held that Congress's attempt to change the rule of Smith exceeded 46 Congress's power, holding: ' Supply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry. If a state law disproportionately burdened a particular class of ' religious observers, this circumstance might be evidence of an impermissible legislative motive. Cf. Washington v. Davis, 426 US 229, 241, 48 L Ed 2d 597, 96 S Ct 2040 (1976). RFRA's substantial burden test, however, is not even a ' discriminatory effects or disparate impact test. It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the ' exercise of religion has been burdened in an incidental way by a law of general application-, it does not follow that the persons affected have been burdened any mfl~.t~aan, other citizens, let alone burdened because of their religious beliefs. In addition, the Act imposes in every case a least-restrictive means requirement - a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify - which also indicates that the legislation is broader than is appropriate if the goal is to prevent and remedy constitutional violations. 521 US at 534-35. If, as the Church argues, RLUIPA applies when a local government is _ administering neutral laws of general applicability, RLUIPA suffers from the same problems as RFRA and is similarly beyond Congress's authority. The Church and the United States have argued that RLUIPA is justifiable based on evidence that some local governments manipulate and abuse regulations to deny rights to religious persons and institutions. That evidence does not justify overly broad regulations that ' prevent local governments from enforcing neutral, generally applicable regulations in a non- discriminatory manner. In this case, the Church's attorney has admitted: We have not asserted that the City of West Linn specifically that the city council, ' has a bias or prejudice against this church. We do not make that assertion. We do say that they have a well-recognized and well-known bias against any kind of aggressive development. But as a result of that kind of an approach to things it is very difficult to get approval to build anything there. Remarks of J. Bean, LUBA Oral Argument Tape 06/05/03. To the extent that RLUIPA can be extended to cases in which there is a potential for abuse, it cannot extend to cases in which there 1 1 47 is admittedly no abuse. The United States argues that Church ofLukumi Babalu Aye v. City ofHialeah, 508 US ' 520 (1993) also supports the position that an individualized assessment of an action that affects a religious practice triggers the compelling government interest/least-restrictive means test to determine consistency with the Free Exercise Clause. However, that case also was based on an exemption. The local government had prohibited animal slaughter outside particular areas. It allowed some exemptions to the animal slaughter ban, but did not allow an exemption for animal slaughter-fgr:religious reasons. The burden was the inability to get an exception for religious reasons when exceptions could be obtained for non-religious reasons. In constant, in the present case, there is no exemption or exception that is available to others. Unlike the local government in Lukumi, the City has not devalued religious reasons for action by judging them to be of lesser _ importance than other reasons. It has simply applied regulations in a way that neither favors nor disfavors religious reasons. The United States argues that there is no distinction between an individualized exemption and the broad category of "individualized assessments" that RLUIPA purports to regulate. US ' Brief at 22. For purposes of 14`h Amendment jurisprudence, the difference is enormous. In ' Smith, the US Supreme Court distinguished between neutral regulations of general applicability and regulations that allow exemptions without any standards for the exemption that in practice ' are used to allow exemptions for non-religious reasons but to not allow exemptions for religious reasons. If "individualized assessment" is taken to mean any land use decision, then Congress has impermissibly created constitutional protections, not just enforced the 14`h Amendement, because RLUIPA is contrary to the holding of Smith that strict scrutiny does not apply to the nondiscriminatory application of neutral regulations of general application. 48 Congress has no authority to intrude into the land-use policy decisions of local governments so long as those policies are not directed at and do not disproportionately burden ' religion. If interpreted to prevent local governments from denying land use applications that would be denied to any applicant, RLUIPA is beyond the enforcement authority of Congress. 3. RL UIPA Is Not Saved By The Commerce Or Spending Clause Provisions In addition to Congress's enforcement power, RLUIPA relies on two other possible sources of Congressional power, the Commerce Clause and the spending power, in certain situations, , Sg,agn 2(a)(2)(A) makes RLUIPA applicable if the burden is imposed "in a program ' or activity that receives Federal financial assistance." 42 USC § 2000cc(a)(2)(A). Section 2(a)(2)(B) makes RLUIPA applicable if the burden affects "commerce with foreign nations, among the several states, or with Indian tribes." 42 USC § 2000cc(1)(2)(B). The Church did not _ argue either of these sections as a basis for application of RLUIPA before the City or at LUBA. ' It has therefore waived any argument that either of these sections apply. State v. Wyatt, 331 Or 335, 345-4615 Pad 22 (2000) (Supreme Court cannot address unpreserved issues). There is no evidence in the record that the City's program of land use regulation or its ' planning department receives any Federal financial assistance. Therefore, the Spending Power ' does not provide authority for RLUIPA's application on this case. There is also no evidence in the record that the City's regulation affects international or interstate commerce, or that international or interstate commerce is affected by the City's land use regulation. The Commerce ' Clause therefore does not provide a basis for authority. The Church may argue that the court needs to look beyond this one denial under Section 1 49 4(g) of RLUIPA.19 However, that section applies only if the "only jurisdictional basis" is under Section 2(a)(2)(B). Here, the prime (and only) jurisdictional basis asserted has been Section 2(a)(2)(C). There is no evidence to support an argument that, as applied to the City's denial of ' the Church's application, RLUIPA was within Congress's spending power or within its authority under the Commerce Clause. ' Congress's authority under the Commerce Clause does not extend to the authority of ' giving advantages to religion that are not enjoyed by others. Congress can exercise authority under the Comeice Clause if Congress regulates economic activity, if it restricts the application ' of its regulation to situations to which it has authority under the Commerce Clause, if it adopts adequate findings to show a basis for the exercise of Commerce Clause authority, or if the link ' between the regulation and interstate commerce is direct. See Berwanger, Note, White Knight?: -Can the Commerce Clause Save the Religious Land Use and Institutionalized Persons Act?, 72 FORDHAM L REv 2355 (2004). Congress made no record connecting RLUIPA to commerce, and ' the link between RLUIPA and commerce is not direct. The only possible application of the Commerce Clause would be if the factual situation in this case affected interstate commerce. ' There is no evidence in the record that it does. Therefore the Commerce Clause does not provide a basis for Congress's authority in this case. 19 RLUIPA Section 4(g) provides: ' (g) Limitation ' If the only jurisdictional basis for applying a provision of this chapter is a claim that a substantial burden by a government on religious exercise affects, or that removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, the provision shall not apply if the government demonstrates that all substantial burdens on, or the removal of all substantial burdens from, similar religious exercise throughout the Nation would not lead in the aggregate to a substantial effect on commerce with foreign nations, among the several States, or with Indian tribes. 50 VIII. CONCLUSION The City respectfully requests that the Supreme Court affirm the decision of the Court of ' ' Appeals. DATED this C~ day of November, 2004. RAMS CREW CORRIGAN & BACHRACH, LLP imothy V. Rims, OSB #75311 Attorney for Respondent on Review City of West Linn CERTIFICATE OF FILING I hereby certify that on November . 2004, I filed the original and 12 copies of Respondents Brief with the State Court Administrator, Records Section, Supreme Court Building, 1163 State Street,' Salem, Oregon 97310 by first class mail. DATED this ~-nA- day of November, 2004. ~ V C c~-othy V. Ramis, OSB #75311 Attorney for Respondent on Review ` City of West Linn CERTIFICATE OF SERVICE 1 I hereby certify that on November, 2004, I served two true and correct copies of ' Respondent's Brief by first class mail on the following persons: James H. Bean Matthew.K. Richards Lindsay Hart Neil & Weigler LLP Kirton & McConkie 1300 SW 5'' Avenue, Suite 3400 1800 Eagle Gate Tower - Portland, Oregon 97201 60 East South Temple Salt Lake City, Utah 84145 T: Franklin Hunsaker Bullivant Houser Bailey, P.C. Herbert C. Sunby, OSB 72257 888 SW Fifth Avenue, Suite 300 Department of Justice Portland, Oregon 97204 - Office of the United States Attorney 1000 SW Third Avenue Mark Stern Portland, Oregon 97204 Lowell V. Sturgill, Jr. . Appellate Staff Barry Adamson Civil Division, Room 9140 4248 SW Galewood ' Department of Justice P.O. Box 1172 601 D. Street, NW Lake Oswego, Oregon 97035 Washington, D.C. 20530 Wendy L. Kellington Steven W. Abel P.O. Box 1930 Samuel J. Panarella Lake Oswego, Oregon 97035 Stoel Rives LLP ' 900 SW Fifth Avenue, Suite 2600 Portland, Oregon 97204 DATED this day of November, 2004. ' mothy V. Ramis, OSB #75311 Attorney for Respondent on Review ' gff/wesdinn/latterdaysaints-supeourt/ResponseBriefCFS City of West Linn 1 Response to Request for Proposal for City of Tigard Attorney Services - General & Labor Submitted by ' Eileen Eakins, Attorney Jordan Schrader PC ' PO Box 230669 Portland OR 97281 ' Telephone: 503.598.7070 Facsimile: 503.598.7373 1 Email: eileen.eakins@jordanschrader.com Website: www.jordanschrader.com ' October 25, 2005 TABLE OF CONTENTS TAB 1 Firm Qualifications & Experience TAB 2 Specific Responses to Request for Proposal ' TAB 3 Team Member Qualifications & Experience Eileen G. Eakins E. Andrew Jordan Christine M. Meadows Janice L. Hirsch Jeff Bennett Christopher L. Reive Steven L> Shropshire TAB 4 Representative Local Government Clients ' TAB 5 Compensation/Rate Structure i ' INTRODUCTION TO JORDAN SCHRADER'S Municipal Law Practice ' Established in 1963, Jordan Schrader is a full-service law firm with recognized practice specialties in municipal law, labor and employment law, land use, real estate and development, environmental law, water law, public contracting and construction law, public and commercial litigation, creditors' rights and general business law. Our firm is noted for the breadth of its experience and the expertise of its attorneys and staff. ' For each matter Jordan Schrader handles, an attorney and an experienced paralegal are assigned. Some of the benefits provided by this team approach are: Client communication and service - Clients value our accessibility. With their skills and thorough case knowledge, our paralegals provide vital assistance to clients when attorneys are temporarily unavailable. Cost effectiveness - With attorney supervision, paralegals perform substantive municipal legal work at substantially less than the cost of attorneys. Industry-specific expertise - Both our attorneys and paralegals possess valuable municipal expertise which results in effective and practical legal solutions and services. Speed and efficiency - Our attorney-paralegal teams' ability to respond quickly and efficiently is proven, and enhanced by our productive support staff and sophisticated networked computer system. In addition to the benefits of our team approach, Eileen Eakins, Andy Jordan and the municipal staff of Jordan Schrader are highly experienced with the legal issues of local governments. This experience and expertise enables our municipal team to address client concerns efficiently and in the proper context for each client. ' In addition to her six years of municipal legal practice, Eileen Eakins has more than 10 years of professional experience in the communications field, bringing to her legal practice the ability to analyze and coordinate complex projects and present information clearly, concisely and timely. ' A shareholder with the firm, her local government experience includes working as Education and Publications Director for the Special Districts Association of Oregon, and in-house for one of Oregon's largest rural fire protection districts. As an attorney at Jordan Schrader, she advises and ' assists our local government clients in complying with laws pertaining to public bodies, such as preparing effective ordinances and resolutions; negotiating and preparing franchise agreements; satisfying requirements for public contracts, records, and meetings; effecting boundary changes; conducting elections; and adhering to the Oregon Government Standards and Practices laws. Eileen took the lead in the incorporation of the City of Damascus, Oregon's first new city since 1982, and she continues to serve as City Attorney. Eileen is also City Attorney for the City of Estacada, and represents numerous special districts. ' Andrew Jordan began representing local governments in 1972 as City Attorney to Woodburn. In 1974, he became General Counsel to the Metropolitan Services District (Metro) one of the largest ' special districts in Oregon. Mr. Jordan serves as City Attorney for the cities of Scappoose, Forest Grove, Lafayette and King City, and is County Counsel for Clatsop County. In addition, he ' 1 JORDAN SCHRADER ATTORNEYS AT LAW represents over 60 special service districts and has been General Counsel of the Special Districts Association of Oregon (SDAO) since 1987. He is recognized throughout the state as an expert in the field of municipal law. Our firm also provides statewide training and seminars to city councilors, county commissioners and special district board members regarding a full range of municipal subject matter. We use these training opportunities to maintain and enhance our knowledge of applicable laws. ' Finally, we have the capacity to provide services in areas not traditionally categorized as municipal law. For example, we have one of the largest construction practices in the state, which includes three lawyers with dual-professional certificates (architect, civil engineer, and landscape architect). These lawyers keep abreast of construction issues relating not only to the construction industry, but also to the public owners of construction projects. Our real estate department includes several highly qualified real estate and land use specialists, as well as environmental and water law specialists, able to handle any local government issue in those areas. We also provide a wide range of litigation services, including defense of cities, counties and special districts in tort and contract cases. In each of these capacities, our firm is able to stay current on issues ' relating to cities. 1 r r 1 r r 1 _2_ JORDAN SCH RADE R ATTORNEYS AT LAW 1 ' Local Government Expertise A full service law firm with a specialty area in municipal law, Jordan Schrader has a demonstrated ability to effectively and efficiently represent local governments. Currently representing seven cities, a county and more than 60 special districts within the state, Eileen Eakins and Andy Jordan are recognized leaders in the area of local government law. ' Specifically, we provide legal services and expertise in the following areas: General Attorney Services ' • Real Property Transactions and Condemnation. Mr. Jordan and Ms. Eakins are backed by an entire real estate department specializing in all aspects of property law, including condemnation processes and litigation. ' • Public Financing. We regularly advise cities, counties and special districts regarding financing, construction and operational requirements of water, sewer, park, drainage and street facilities. Though we are experienced in all areas of municipal and finance taxation, Jordan Schrader does not act as bond counsel. However, we regularly refer bond counsel work to other qualified firms with whom we have established relationships. ' • Land Use Law. Andy Jordan is recognized statewide for his work in representing cities in land use matters, including provision of advice to planning commissions and staffs and ' litigation of land use appeals. Jeff Bennett, who represented LCDC before entering private practice, has been a leader in Oregon land use circles for many years. We have processed numerous annexations and land use proposals for our municipal clients. Eileen Eakins is currently coordinating a complex land use litigation for the City of Damascus. ' • Local Budget Law. We regularly advise city and special district clients on compliance with Oregon's Local Budget Law. ' • Codification of Ordinances. We have drafted and assisted in the adoption of hundreds of municipal ordinances, including zoning codes, solid waste ordinances, personnel regulations, ' criminal and traffic codes, nuisance regulations, contracting procedures, council procedures, public works standards, and virtually every other aspect of municipal law. In addition, Mr. Jordan has prepared and published three entire municipal codifications. ' • Election Laws. Both Mr. Jordan and Ms. Eakins have significant experience in interpretation of election laws, preparation of election ordinances and ballot titles, and defense of public agencies and officials in election law violation cases. The firm recently prevailed in an election law challenge brought by the Oregon Secretary of State, which was unsuccessfully appealed to the Oregon Supreme Court. ' • Public Record Laws; Open Meeting Law. We regularly advise cities, counties and districts on such issues, including seminars to local officials and government associations. Mr. Jordan has also represented several public agencies and officials in claims regarding open meeting and public records violations, and has defended public officials before the Government Standards and Practices Commission. • Public Contracting. The firm is widely known for its expertise in public contracting. We provide regular seminars on public contracting processes and regulations, including the new Attorney General's Model Rules. Our construction department includes Chuck Schrader, who is also an engineer, and John Baker, who is also an architect. We provide complete contracting advice, documents and litigation services. In 2004, Eileen Eakins prepared an 3 JORDAN SCHRADER ATTORNEYS AT LAW ' updated chapter on public contracting for the Special Districts Association of Oregon's Management Handbook, to acquaint members with the comprehensive changes in Oregon's public contracting laws. ' • Franchise Law (i.e. Solid Waste). In representing cities for many years, we have prepared and negotiated numerous franchise ordinances and agreements with electric utilities, phone companies, railroads, garbage collectors and cable providers. • Annexation Law. Andy Jordan and Eileen Eakins are among the most experienced attorneys in Oregon in the area of annexation and other boundary change procedures. • Public/Private Partnerships. Likely to become an increasing trend, public/private partnerships raise interesting legal challenges, including such issues as choice of corporate ' entity and applicability of public contracting and prevailing wage laws. For example, Andy Jordan recently addressed all of these issues in a complex, but successful, joint property acquisition and condominium conversion by a 501(c)(6) association and a public entity. • Oregon Revised Statutes. Government law is largely statutory, and for cities, statutes must be coordinated with the city charter. Eileen Eakins and Andy Jordan are very familiar with the Oregon statutes that apply to cities, and have participated in the drafting of new ' legislation in such areas as city financing and public contracting. • General Business Law. As general counsel for local government entities, Eileen Eakins and ' Andy Jordan understand "the business of government." Property acquisitions, contract review and preparation, and financial and employee management are all issues shared by public and private entities. And, Jordan Schrader's staff include several general business ' attorneys who give sound advice on matters of business. • Employment and Labor. Mr. Jordan, an experienced employment lawyer, is supported by two full-time employment and labor specialists. Jan Hirsch is an advisor on employment ' matters such as personnel rules, employment contracts, hiring and firing and all other areas of public employment law. Christine Meadows is an experienced public labor negotiator and litigator of employment claims. Additional Services ' • Environmental, Natural Resources and Water Law. Chris Reive, formerly employed by DEQ, is a recognized specialist in environmental law and litigation. Steve Shropshire practices natural resources law and is among Oregon's most notable water lawyers. • Litigation and Tort Claim Defense. Our chief litigator is Harlan Jones, who is one of the state's top trial lawyers and an expert in defense of public agencies. Harlan has a team of attorneys and paralegals dedicated to handling litigations matters. • Taxes, Fees and Charges. Andy Jordan and Eileen Eakins have prepared numerous system development charge ordinances, property tax opinions and ballot titles, water and sewer rate ' resolutions and regulations, local improvement district and reimbursement district formations, as well as having defended public tax issues in the Oregon Tax Court. ' • Police and Municipal Court. Having represented several cities over 32 years, Andy Jordan has advised councils on the formation and operation of courts, hiring of judges and collection of fines, and has prosecuted misdemeanors, code violations and traffic offenses. i 4 JORDAN SCHRADER ATTORNEY! AT LAW ' • Intergovernmental Issues. Mr. Jordan and Ms. Eakins have years of experience in negotiating and drafting intergovernmental agreements. Such agreements have included numerous urban service area and planning coordination agreements between cities, counties, 1 and special districts, as well as agreements between local governments and state and federal agencies regarding loans and grants, highway construction, joint sewer and water projects, economic development assistance and a myriad of others. ' Labor Attorney Services Christine Meadows has served as the lead negotiator on numerous public and private labor ' contracts, including general employee and police bargaining units. In addition, Ms. Meadows advises on general questions of contract interpretation and grievances. Ms. Meadows has handled the decertification of a public employee unit as well as a number of organization campaigns and ' unit clarification hearings. Ms. Meadows has represented public employers through mediation and arbitration of labor disputes, in addition to labor hearings before the Employment Relations Board. Ms. Meadows is available to attend City Council meetings and meet with the bargaining team to develop bargaining strategies to accomplish the City's goals. She works with the employer to make sure all decision makers are fully informed, and gives regular progress updates. Ms. Meadows regularly conducts impact bargaining as necessary, and works with public employers to help them identify triggers for mandatory bargaining. She has conducted staff 1 training for supervisors of organized employees, to make them aware of labor issues and educate them in avoiding an unfair labor practice complaint. Ms. Meadows has defended several employers in unfair labor practice claims, most of which were dismissed without hearing. ' In preparation for collective bargaining, Ms. Meadows meets with the bargaining team to develop a bargaining plan. Using pay and classification comparables, Christine works with the bargaining team to craft a proposal that meets the City's objectives and is 1 consistent with the internal workings of the department and the City's policies and procedures. In all strategy discussion and evaluation of proposals, cost analysis is performed and discussed with members of the team. 1 i 1 1 1 1 ' S JORDAN SCHRADER ATTORNEYS AT LAW ' Response Time and Proximity ' Accessibility by clients is a priority at Jordan Schrader. All clients are provided with as many contact points as possible, including general phone numbers, direct dial phone numbers, fax numbers, mobile phone numbers and email addresses. The reception desk of the firm is staffed ' from 8:00 AM until 5:30 PM, Monday through Friday. Some staff are on site at 7:00 AM and others until 10:00 PM each evening. Andy Jordan, Eileen Eakins, or another member of the Jordan Schrader municipal staff assigned to the City of Tigard matters, will be available to the ' City during all City work hours, and after hours as requested. Our offices are in Lake Oswego, and we can generally provide on-site assistance within the hour. Our attorneys carry cell phones and can always be contacted by voice mail and email. Also, the ' paralegal assigned to the City will often be able to assist the City in the event that attorneys are otherwise engaged. We are fully prepared to attend Council, Planning Commission and staff meetings as required. ' Professional References and OSB Membership ' All Jordan Schrader attorneys are members in good standing of the Oregon State Bar. The City is invited to contact any of the list of local government clients attached at Tab 4. Specifically, the City may be most interested in speaking with the Mayors or City Managers of ' the other cities for which we act as City Attorney: Richard Kidd Jon Hanken ' Mayor City Manager City of Forest Grove City of Scappoose (503) 992-3200 (503) 543-7146 rkidd@ci.forest-grove.or.us jonhanken@ci.scappoose.or.us Jane Turner Diane Rinks City Manager City Administrator ' City of King City City of Lafayette (503) 639-4082 (503) 864-2451 jturner@ci.king-city.or.us dianer@ci.lafayette.or.us ' Steve Rhodes Randy Ealy Interim City Manager City Manager ' City of Damascus City of Estacada (503) 658-8545 (503) 630-8279 srhodes@ci.damascus.or.us ealy@cityofestacada.org ' You may also wish to contact Mark Rauch at City County Insurance Services regarding our abilities and experience in assisting cities. As a representative of your insurer, he may be able to provide helpful insight into our reputation. His telephone number is 800.922.2684. ' Objectivity ' At present, this firm has no known conflicts of interest with any contractors or others having an interest in City matters. Because the firm represents the City of King City and Tualatin Valley Fire and Rescue, there is a possibility that a conflict could develop. If conflicts occur we assure that either the conflict will be resolved or the City of Tigard will be referred to competent ' counsel. _6- JORDAN SCHRADER ATTORNEYS AT LAW ' Eileen G. Eakins EMPLOYMENT HISTORY 2000 - Present Shareholder, Jordan Schrader PC 1998-2000 Counsel, Clackamas Co. Fire Dist. #1 ' 1996-1998 Education/Publications Director, SDAO ' 1992-1994 Law Clerk, U.S. Attorney's Office, Portland, Oregon EDUCATION • Juris Doctor, 1994 - Northwestern School of Law, Portland, Oregon ' • Bachelor of Arts, Communications, 1983 - California State Univ., Sacramento MEMBERSHIPS AND AFFILIATIONS • Oregon State Bar, 1994-present • Oregon State Bar Government Law Section • Oregon Women Lawyers • President, Clackamas County Leadership Class, 1998-99 ' • Board Member, North Clackamas County Chamber of Commerce PUBLICATIONS "Disclosure, Bid Deadline Changes Now in Effect," Daily Journal of Commerce, 2003 "Telling the Difference Between Government `Taking' and Police Power," Daily Journal of Commerce, 2003 • "System Development Charges Ruled Constitutional," Daily Journal of Commerce, 2003 ' • "April Deadline Approaches for Compliance to HIPAA," Daily Journal of Commerce, 2002 • "Court Rules in Favor of Competitive Bidding Exemption," Daily Journal of Commerce, 2000 "Public Contractor Beware: Failure to List Suppliers Can Cost You," Pay Dirt, 2000 • "Your First Time in the Courtroom," Young Physicians, 1997 "What to Expect in a Deposition," Life in Medicine, 1996 SEMINARS Lorman: Design-Build and CM/GC Contracting in Oregon (2002/2003) • Understanding the Construction Bidding Process in Oregon (2004) Special Districts Association of Oregon: Public Records and Meetings (Annual Conferences 2001, 2003) • "When Watch Dogs Bite" (Annual Conference 2002) ' • Board Member Tuneup (Bend, Tualatin, Roseburg, Newport, 2004) • Mid-Management Training (2004) Public Contracting Update, Multiple Locations, (2005) Oregon Fire Chiefs Association: • Mid-Management Training (2004) Eileen's local government experience began working for the Special Districts Association of Oregon, and ' then for one of Oregon's largest rural fire protection districts. Since joining Jordan Schrader in 2000, she has worked directly with local government entities to ensure compliance with state and federal laws relating to public bodies in Oregon, such as public contracting, public records, public meetings, and the Oregon Government Standards and Practices laws. She works with numerous local government entities on implementing boundary changes, including coordination with cities in the formation, annexation, and dissolution of special districts and took the lead in legal work necessary to put the incorporation of the ' City of Damascus on the November 2004 ballot, and serves as City Attorney for Damascus and Estacada. ' JORDAN SCH RADE R ATTORNEYS AT LAW 1 She is experienced in preparing ballot measures and coordinating successful elections, and in preparing resolutions and ordinances according to statutory requirements. She advises the firm's municipal clients on, and conducts negotiations with, cable, telephone, power, and garbage franchisees; and assists with establishment of user fees and SDCs. She also works with clients on complying with new HIPAA privacy regulations. In addition to her legal training, Eileen's management experience provides unique insight into the needs and interests of local government managers and the day-to-day difficulties they encounter. The combination of her legal training, 10 years of public and private management experience give Eileen the 1 ability to advise on preventative action in order to avoid problems, and to coordinate effective solutions when trouble does arise. 1 1 1 i 1 1 1 1 1 1 1 ' s JORDAN SCH BADE R ATTORNEYS AT LAW h t E. Andrew Jordan EMPLOYMENT HISTORY 1983 - Present Managing Shareholder, Jordan Schrader PC 1992 Instructor of Land Use, Northwestern School of Law 1974-1983 General Counsel, Metro 1972-1974 City Attorney, City of Woodburn 1 EDUCATION • Juris Doctor, 1972 - University of Oregon, Eugene, Oregon • Graduate School in Public Affairs, 1968-1969 - University of Oregon, Eugene, Oregon • Bachelor of Science, 1966 - University of Oregon, Eugene, Oregon ' MEMBERSHIPS AND AFFILIATIONS • Oregon State Bar, 1972-present • Local Government, Real Estate, and Land Use Sections, Oregon State Bar • Council of School Attorneys • Oregon City Attorneys Association • Board of Directors, Columbia Corridor Association, 1994-present Member, National Association of Industrial and Office Properties, 1995-present • Member, Building Owners and Managers Association, 1995-present • Chairman, Private Industry Council, 1988-1990 • Board of Directors, Tualatin Valley Economic Development Corporation, 1988-1989 ' . Board of Directors, 1985-1993; President, 1987, Beaverton Area Chamber of Commerce • Chairman, Legal Committee, Home Builders Association of Metropolitan Portland, 1985-1987 • Chairman, Transportation and Economic Development Committee, Beaverton Area Chamber of Commerce, 1985-1986 • Legislative Committee on Land Use, 1981 PUBLICATIONS ' "Employment Law & Practices in Oregon," 1994 "Working With Oregon's Land Use Laws in the 1990s," 1992 • "Land Use Law," 1982 • "Special District Duties, Responsibilities and Liabilities," 1990 SEMINARS • Annual seminar on Board Member duties at SDAO Conference ' . Numerous seminars for City Councils and District Board regarding all aspects of municipal law • Lorman seminars on land use and public contracting Local Government and Municipal Law: Andy has served as City Attorney for five cities, as County Counsel, and as a City Administrator. He was also General Counsel to the Metropolitan Service District (METRO), and has served as counsel to Oregon school districts, numerous special districts, the Special Districts Association of Oregon (SDAO), and the Oregon Public Ports Association (OPPA). The experience Andy has gained through his work with cities, counties and special districts gives him the ability to thoroughly analyze the nature and legalities of any public issue. Through his legal practice, Andy has gained experience in: Franchises and franchise fees • Taxes, fees, and charges such as systems development charges and water and sewer service ' charges • Annexation 9 JORDAN SCHRADER ATTORNEYS AT LAW • Police matters • Public purchasing and contracting • Municipal court prosecutions • Planning, construction, and operation of public facilities such as street, water, sanitary sewer, and storm drainage facilities • Urban renewal • Tribe-city relations • Open meetings and public records • Government ethics • Elections Public Employment Law: Andy has a thorough understanding of public employment rights, responsibilities and benefits. His experience includes extensive consultation and litigation in the areas of unfair employment practices, discrimination, wage and hour claims, sexual harassment, affirmative action, employee discharge, and labor negotiations. In addition, Andy has extensive experience in preparation and administration of employee manuals, personnel rules, and fringe benefit packages. Land Use and Development: Andy has been a pioneer in developing and applying Oregon's land use laws. As General Counsel to METRO, Andy provided the legal direction for establishing the regional ' urban growth boundary. Andy has also represented public agencies and private developers in numerous industrial, commercial, and residential development proposals before local commissions, courts, and the Oregon Land Use Board of Appeals (LUBA). 1 - to - JORDAN SCHRADER ATTORNEYS AT LAW Christine M. Meadows h CEMPLOYMENT HISTORY 2000 -Present Shareholder, Jordan Schrader PC 1999-2000 Adjunct Professor, Lewis & Clark Northwestern School of Law 1997-2000 Attorney, Christine Meadows, Attorney at Law 1997 Special Prosecutor, Multnomah County District Attorney's Office ' 1996-1997 Attorney, Crispin & Associates, Attorneys at Law EDUCATION • Juris Doctor, 1996 - Lewis & Clark College, Northwestern School of Law, Portland, Oregon • Bachelor of Science, Journalism, 1991 - University oflllinois, Urbana-Champaign, Illinois MEMBERSHIPS AND AFFILIATIONS • Oregon State Bar, 1996-present • Board of Directors, Portland YWCA • Member, American Bar Association, Labor and Employment Law Section • Member, Oregon State Bar, Labor and Employment and Civil Rights Sections ' • Member, Multnomah Bar Association Budget and Finance Committee; Professionalism Committee • Member, Oregon Women Lawyers 0 Member, Gus J. Solomon American Inns of Court • Winner, Portland Business Journal's 40 Under 40, 2004 • Editorial Board, American Bar Association, Young Lawyers Division, 2000-2004 • Board of Directors, Federal Bar Association, 2000-2003 • Member, American Bar Association, YLD, Executive Council, 2000-2002 • Oregon State Bar Public Outreach Subcommittee, Chair 2000; Law-Related Education Subcommittee, 1996-2001, Chair 1998-2001; Public Service and Information Committee, 1997- 2000; received Oregon State Bar Division Public Services Award, 1999 • Board of Directors, Oregon Literacy, Inc., 1999-2004 ' • Board of Directors, Multnomah Bar Association, Young Lawyers Section, 1998-2002, Treasurer, 1999-2001 • Classroom Law Project, Law Day Planning Committee, 1997-1999 PUBLICATIONS • "When Jane and Johnny Come Marching Home - A Guide for Employers," Daily Journal of Commerce, June 2003 • "Layoffs and Reductions in Force: Do Them Right," AOI Business Viewpoint, May/June 2003 • "FMLA - An Overview," American Bar Association, The Young Lawyer, November 2002 • "Make Your Work Day Work for You," American Bar Association, The Young Lawyer, September 2002 • "Hiring, Managing and Firing Employees" Off the Record, Spring 2002 • "Multijurisdictional Practice: What Does it All Mean?" American Bar Association, The Young ' Lawyer, February 2002 • "How to Break Bad News to Your Client," American Bar Association, The Young Lawyer, April 2001 • "Administration Institutes Ergonomics Program Standard" Daily Journal of Commerce, February 9, 2001 • "Review Harassment Policies to Apply Court Standards," Pay Dirt, Winter 2001 ' PRESENTATIONS t - I1 - JORDAN SCHRADER ATTORNEYS AT LAW 1 • "Help - I'm a Boss, Discrimination Claims and Defenses," American Bar Association, Annual Meeting, Atlanta, GA 2004 • "Employment Law Basics, The FLSA," American Bar Association, Annual Meeting, San ' Francisco, CA 2003 • "Conducting the Human Resource Audit," Lorman 2003 • "Termination Issues in Employment," Lorman 2003 • "Workin' 9 to 5, From Hiring to Firing: Avoiding the Problems of Being an Employer," 2002 • "School Law Issues in Oregon," Lorman 2002 • "Employment Law for Water Utilities," OAWU Conference, 2000, 2001, 2002 • "Law for Design Professionals" (unique employment issues), Lorman 2001 • "Avoiding Workplace Harassment," 2001 • "Trial Strategies, Practices and Techniques," Oregon State Bar, 2001 • "Trial Practice in Federal Court: Beyond the Basics," Federal Bar Association 2001 • "The Top Ten Legal Problems that Cost Businesses Money," 2001 • "Partnerships, LLCs & LLPs In Oregon: Organization and Operation" (employment issues in partnerships, LLCs and LLPs), Lorman 2000 a "Sexual Harassment and Discrimination," 2000 • "Harassment in the Workplace," 2000 • "Employer Requirements and Employees' Rights," 2000 • "Oregon Construction law: A Toolbox" (prevailing wage and other issues), 2000 • "(Family) Business Issues," Austin Family Business Program, 2000 • "Sexual Harassment in the Schools," Law Day Conference, 1998, 1999 • "Show Me the Money (How Juries Value Civil Cases)," Law Day Conference, 1998, 1999 • Paralegal Continuing Education - "What You Need to Know About Title VII," 1994 A shareholder in Jordan Schrader, Christine Meadows is an employment advisor and litigator who handles the full range of disputes that arise out of the employment relationship. She uses the knowledge and experience she has gained in trials, appeals, arbitrations and administrative hearings to advise employers on compliance with state and federal employment laws, both to avoid litigation and to ensure a strong defense in the event of a lawsuit. Christine routinely consults businesses on such issues as: ' • Employment contracts • Labor agreements • Severance agreements • Noncompetition and confidentiality agreements • Family and personal leave • Sexual harassment ' • Wage and hour claims • Age, sex and race discrimination claims • The Americans with Disabilities Act • Wrongful discharge • Accommodation issues involving the return of injured employees to the workplace • The preparation of employee handbooks, personnel policies and sexual harassment training ' Christine also represents clients in labor relations matters including contract negotiations, labor disputes, administrative hearings before the NLRB or the ERB, and labor arbitrations. Christine is a former Adjunct Professor of Law at the Northwestern School of Law; she is the Oregon and Washington representative to the American Bar Association, and works with the Bar Association's Lawyer in the Classroom program. 12 JORDAN SCHRADER ATTONNETB AT LAW Janice L. Hirsch EMPLOYMENT HISTORY 2003 - Present Shareholder, Jordan Schrader PC 1993 -2003 Attorney, Williams, Zografos & Peck EDUCATION • Juris Doctor, Lewis & Clark College - Northwestern School of Law, Portland, Oregon, 1993 • Bachelor of Arts, Political Science - Washington State University, Pullman, Washington, 1989 MEMBERSHIPS AND AFFILIATIONS • Oregon State Bar, 1993-present • Oregon State Bar Association, Labor and Employment Section • Oregon Women Lawyers Mentor Program • First Year Mentor Program, Northwestern School of Law • Past President, Oswego Pointe Village Condominium Homeowners Association • President, Portland Panhellenic Association PUBLICATIONS ' • "Employment Laws for Human Resource Professionals" • "Family Leave Act and Workers' Compensation Laws" • "Family Leave Laws - Which Ones Apply to Your Business?" • "Frequently Asked Questions About Employment Law" • "Getting and Giving Job References" • "Harassment in the Workplace" • "Internal Notice Requirements May Not Interfere With Employee Rights Under the Federal Family Medical Leave Act" • "Interrelationship between the Americans with Disabilities Act, Family Medical Leave Act, Oregon Family Leave Act and Workers' Compensation Laws" • "Recruiting, Retaining and Rewarding Lawyers for Pro Bono Work" • "Update on Federal and State Wage Legislation" PRESENTATIONS • Why Talk About Harassment? • Employee Awareness Training on Harassment • Effective Discipline and Discharge • Minimizing Employee Lawsuit Liability • Top Ten Ways to Get Sued • Keeping Drugs Out of the Workplace, and What To Do if They Get In • Overview of Employment Laws • Interrelationship Between the ADA, FMLA, OFLA, and Workers' Compensation Laws ' • Violence in the Workplace • Employment Law Panel, Northwestern School of Law A member of Jordan Schrader's Employment Law practice group, shareholder Janice Hirsch has more than ten ' years' experience representing businesses and advising employers on compliance with federal and state ' - 13- JORDAN SCH BADE R ATTORNEYS AT LAW employment laws. With a focus on the prevention of problems, Janice's proactive approach to labor and employment issues encourages companies to develop and strictly adhere to policies and procedures before difficult employment situations can arise. In addition, she also conducts investigations and represents employers in disputes with the Oregon Bureau of Labor and Industries, Equal Employment Opportunity Commission, and U.S. Department of Labor. i t -14- JORDAN SCHRADER ATTORNEYS AT LAY! successfully represented clients before all levels of governmental decision-makers and before the Land Use Board of Appeals, circuit courts, Oregon Court of Appeals, and Oregon Supreme Court. Land Use. Jeff's experience as a landscape architect, landscape contractor, and attorney bring a unique blend of talent to any land use case. His ability to understand technical issues helps the client in dealing with planning, engineering, architectural, economic, and other technical consultants, and permits him to interface well with local planning staff members. He prefers the team-oriented approach required to obtain land use approvals. 1 In representing land use clients Jeff has addressed issues such as: ■ Permit strategy ■ Assessment of legal issues controlling the decision to develop (or not to develop) ■ Timing of development permit applications ■ Negotiation of conditions of approval ■ Wetlands delineation and mitigation ■ Traffic impacts and street improvement requirements ■ Creation of new zoning districts when existing zoning is inadequate ■ Development phasing ■ Development agreements to limit on-site and off-site improvement cost exposure ■ Increases in allowable FAR and height limitations to address economic feasibility requirements Environmental and Natural Resource Law Jeff is a frequent author and lecturer on environmental law. He recently co-authored Oregon Environmental Law and Underground Storage Tank Requirements & Cleanup in Oregon. He co-authored, with MNWR/Partnership, The Natural Resources Management Plan for the City of Portland (Peninsula Drainage District No. 1). He also assisted the Oregon Concrete and Aggregate Producers Association in obtaining from the Department of Environmental Quality a Clean Air Act compliance deferral pending adoption of non-permit options for generators of small quantities of air contaminants. Jeff's knowledge of federal and state environmental laws and regulations, and his ability to work with agencies that enforce those laws and regulations, have assisted his clients in successfully resolving issues relating to: ■ Asbestos abatement and disposal ■ Due diligence prior to site acquisition ■ Contamination cleanup responsibility ■ Property assessments ■ Performance audits ' NPDES permitting • Underground storage tanks regulation and removal ■ Third-party contribution claims ■ Indemnification ■ Lender liability ■ Foreclosure of security interests in contaminated property ■ Remediation contractor liability • Wetlands • Mitigation plan approval ■ Oregon fill-removal law • Impact of wetlands on acquisition and development financing ■ Analysis and preparation of environmental impact statements ■ Title V Clean Air Act permitting 1 ■ Development, certification, and transfer of water rights -16- JORDAN SCHRADER ATTORNEYS AT LAW Christopher L. Reive t EMPLOYMENT HISTORY 1999 - Present Shareholder, Jordan Schrader PC 1993 -1999 Partner, Bogle & Gates, PLLC 1989-1993 Associate, Bogle & Gates, PLLC 1987 - 1989 Associate, Stoel Rives LLP 1983 - 1987 Associate, Martin, Bischoff, Templeton, Biggs & Ericsson 1978 - 1983 Special Investigator, Oregon Department of Environmental Quality EDUCATION ' • Juris Doctor, 1983, Lewis & Clark College, Northwestern School of Law, Portland, Oregon • Master of Public Health, Environmental Health, 1976, University of Michigan School of Public Health, Ann Arbor, Michigan • Bachelor of Science, 1973 - University of Michigan, Ann Arbor, Michigan MEMBERSHIPS AND AFFILIATIONS • Oregon State Bar, 1983-present ' Washington State Bar, #14095 • Washington State Bar Association, Creditor-Debtor, Environmental and Land Use Sections • American Bar Association, Litigation Section • Oregon State Bar, Debtor-Creditor, Land Use and Real Estate Sections ARTICLES • "The ESA - What It Means to Property Owners" • Is `200' the Magic Number?" • "Awakening the Region to Economic Health" • "Liability for Tenant Injury Caused by Terrorism" ' • "Environmental Claims and CGL Insurance Policies - Selected Coverage Issues" PRESENTATIONS • Portland City Club Standing Committee on Government and Taxation, "What Goes Down the Drain?" 1991 • University of Wisconsin, Madison, "Proving the Technical Case - Soil and Ground Water Contamination Litigation," 1993; "Proving the Technical Case - Chlorinated Solvents and ' Hydrocarbons," 1996 • Oregon State Bar, "Environmental Aspects of Real Estate and Business Transactions - Selected Insurance Coverage Issues," 2002 ' Chris regularly assists businesses, individuals, and local governments in recognizing and solving the many issues that arise from environmental concerns, including environmental risk management and allocation in business transactions, waste management and disposal on job sites, obtaining insurance coverage for environmental issues, permitting and reporting to regulatory agencies, spill and release response, and worker safety. His 20 years' experience as a lawyer is complemented by a graduate degree in environmental health and his prior experience as a DEQ enforcement officer. Chris has represented clients in acquiring and selling contaminated properties, in remediating contamination discovered on their property, and in recovering costs associated with contamination caused by others. His knowledge of federal and state environmental laws and his experience as a trial lawyer make him very successful in resolving disputes that arise between present and former owners, operators, insurers, and neighbors of ' 17 JORDAN SCHRADER ATTORNEYS AT LAW contaminated. properties. He also advises clients on compliance with the many local, state, and federal laws and regulations that determine how they manage and develop their land and facilities. Current and former clients include banks, credit unions, wood treaters, printers and publishers, contractors, land ' owners and developers, municipalities and counties, port districts, national manufacturers and retailers, environmental contractors, oil and mining companies, local fuel retailers, not-for-profit charitable organizations, and many individuals who have found themselves mired in the environmental regulations that have impacted their lives and businesses. Chris has successfully litigated and resolved environmental claims against major oil companies, other major companies, and the United States. Chris's experience in representing creditors also makes him uniquely qualified to advise lenders and investors on managing the risks associated with buying, lending, and foreclosing on real property impacted by environmental ' concerns. ' 18- JORDAN SCH RADE R ATTORNEYS AT LAW Steven L. Shropshire EMPLOYMENT HISTORY ' 2001 - Present Shareholder, Jordan Schrader PC 1998 - 2001 Associate Attorney, Schroeder Law Offices, PC, Portland, Oregon s, 1996 - 1998 Associate Attorney, Petros & White, LLC, Denver, Colorado 1994 - 1996 Contract Attorney, Steven L. Shropshire, Attorney at Law EDUCATION • Juris Doctor with Certificate in Environmental and Natural Resources Law, 1994 - ' Lewis & Clark College, Northwestern School of Law, Portland, Oregon Bachelor of Arts, 1991 - University of Colorado, Boulder, Colorado • Universitat Regensburg, Germany, 1989-1990 ' MEMBERSHIPS AND AFFILIATIONS • Oregon State Bar, 1994-present • Member, Owen M. Panner American Inn of Court 1 • Member, Lewis & Clark Law School Alumni Board of Directors (2004-2005) • Board Member, Oregon Water Trust (2004-present) • Oregon Water Resources Department's Notice and Concurrence Rulemaking Work Group (2004) ' Oregon Water Resources Congress Board of Directors (2004) • Oregon State Bar, Agricultural Law Section, Executive Committee (2003-present). • Oregon Water Resources Department Ground Water Advisory Committee Surface Water Interference Subcommittee (2003) • American Bar Association, Section of Environment, Energy & Resources, 2003 Water Law Conference Planning Committee • ABA State and Regional Cooperation Committee, Region 10 Vice-Chair ' Oregon Water Resources Department Senate Bill 710 Work Group (2002) • Multnomah Bar Association, CLE Committee, 2001-present; Young Lawyers Division, Board of Directors, 2002-2003; CLE Committee, 1999-2001; Chair, 2000-2001; Award of Merit (2002) • Oregon State Bar, Environmental and Natural Resources Section., Executive Committee; 1999- present, Chair Elect 2002-present; Treasurer 2001-2002; Secretary 2000-2001 ARTICLES ' "Water Rights Ownership Bill Exposes Philosophical and Legal Differences," OSB Environmental and Natural Resources Legislative Alert (Spring 2003). • "2003 Legislative Land Use Update," Daily Journal of Commerce (February 2003). • "Approaching Water Rights as Collateral," Winter 2003 Oregon State Bar Debtor-Creditor Section Newsletter. • "Municipal Water Use Permit Extension Rules Approved by Oregon Water Resources Commission," Oregon Insider, Issue No. 307 (November 1, 2002). • "Community Water Supply Permit Extension Developments," Oregon Insider, Issue No. 294 (April 15, 2002). • "Salmon Rules to Be Rewritten - But Impact Unknown," Daily Journal of Commerce (March 2002). • "Bush Administration and Federal Legislators Sharpen Focus on Klamath Basin," Oregon State Bar Environmental and Natural Resources Section Newsletter (Spring 2002). • "Recent Developments Related to Oregon Wetlands," Daily Journal of Commerce (June 2002). • "Water Rights Issues in Agricultural Lending," American Bankers Association Journal of Agricultural Lending, Vol. 15 No. 2 (Winter 2002). ' PRESENTATIONS • "Water Law Meets Land Use Law Avoiding the Mud," Oregon State Bar Real Estate and Land Use Section Annual Meeting (August 2003). 1 • "Natural Resources and Environmental Issues," A Year in the Life of a Development Deal: Land Use Impacts on Real Estate Transactions in Oregon seminar (May 2003). -19- JORDAN SCH BADE R ATTORNEYS AT LAW • "Municipal Aspects of Oregon Water Law," Oregon Association of Water Utilities-Eastern Oregon Water Rights Seminar (March 2003). • "Land Use 101 for Water Providers," Oregon Association of Water Utilities-25th Annual Management & Technical Conference (March 2003). ' • "Legal Aspects of Water Conservation," Klamath Soil and Water Conservation District & Cascade Environmental Sciences--Water Conservation in the Klamath Basin workshop (February 2003). ' "Water Rights, Wetlands and Water Quality Issues," A Year in the Life of a Development Deal: Land Use Impacts on Real Estate Transactions in Oregon seminar (May 2002). • Oregon State University adjunct lecturer on water law, the Endangered Species Act, and natural resources law (2000-present). • "Metropolitan Water Supply Issues," Jordan Schrader Real Estate Breakfast Series (January 2002). • "H20 101 - A Primer of Oregon Water Law," League of Oregon Cities 2001 Annual Conference (November 2001). • "A Comparative Analysis of Oregon and Washington Drainage Law," American Society of Civil Engineers 2001 Drainage Law Conference (November 2001). ' "Avoiding Injury in Water Rights Transfers," 9th Annual Conference on Oregon Water Law (October 2001). • "Oregon Water Law," Yamhill County Realtors Association water law seminar (July 2001). • "A Survey of Oregon Water Law," Oregon Association of Realtors 2001 Annual Convention (Spring 2001). • "The Intersection of Federal Regulatory Law and State Water Law," Oregon State Bar Agricultural Law Section and Northwestern School of Law-Oregon Water Law Seminar (Fall 2000). Throughout his career, Steve Shropshire has been helping local governments, individuals, and businesses ' understand and navigate the complex legal environment governing natural resources, environmental, and land use law. He concentrates on water rights, water quality, wetlands, and real estate development, where he brings his understanding of natural resources economics and conflict management to bear in developing effective, lasting solutions for his clients in transactions, administrative proceedings, judicial proceedings, and legislative matters. ' Steve has represented clients in the evaluation and conveyance of existing water rights; permitting and adjudication of new water rights; water rights transfers; creation of mitigation plans for agricultural, municipal and industrial uses; basin planning, management, and compliance; determination of Native 1 American water rights; and work with the United States Bureau of Reclamation on behalf of irrigation districts. He has served as counsel on several cases involving water rights issues of first impression before Oregon, Colorado, and Federal courts. Steve has also assisted his clients with real estate transactions and litigation regarding commercial properties, vacant land, P.U.D.s, and single unit development. Steve has considerable experience advising his clients with regard to the application of environmental regulations to water rights and real estate transactions. Steve has represented local governments in Endangered Species Act compliance efforts through Federal consultation under Section 7 and take avoidance under Section 9. He has also participated in several litigation matters regarding the Endangered Species Act. Steve has considerable experience with the Wetlands, Water Quality Act, ' National Environmental Policy Act and Federal Reclamation Laws. ' 20 JORDAN SCH RADE R ATTORNEYS AT LAW r JORDAN SCHRADER PC Representative Local Government Clients Arch Cape Water District North County Recreation District Arch Cape Sanitary District North Unit Irrigation District ' Baker County Library District Northwest Regional Education Service District Bandon Rural Fire Protection District Oregon Association of Water Utilities Bear Creek Valley Sanitary Authority Peninsula Drainage District #1 Boardman Rural Fire Protection District Peninsula Drainage District #2 Carmel-Foulweather Sanitary District Port of Alsea Central Linn School District Port of Astoria Central Oregon Parks & Recreation District Port of Bandon ' Chemult Rural Fire Protection District Port of Brookings Harbor Chenowith Water People's Utility District Port of Gold Beach City of Damascus Port of Hood River ' City of Estacada Port of Tillamook Bay City of Forest Grove Port of Toledo City of King City Powell Valley Road Water District City of Lafayette Rainier Cemetery District City of Scappoose Rivergrove Water District City of Vernonia Rock Creek Water District Clatsop County Roseburg Urban Sanitary Authority ' Columbia Health District Sandy Drainage District Curry Health District Scappoose Library District Deschutes County Special Road District No. 1 Scio Rural Fire Protection District ' Deschutes County Water District Seal Rock Water District Elsie Vinemaple Rural Fire Protection District Silver Falls Library District Government Camp Sanitary District Special Road District #8 ' Greater St. Helens Park & Recreation District Tillamook Transportation District Hahlen Road District Tigard Water District Heceta Water District Tri-City Water and Sanitary Authority Jackson County Fire District Tri-City Rural Fire Protection District ' Lane Transit District Tualatin Valley Fire & Rescue Luckiamute Domestic Water Cooperative Twin Rocks Sanitary District Morrow County Health District Union Cemetery Maintenance District ' Morrow County Unified Recreation District Vendevert Acres Special Road District Multnomah County Drainage District #1 West Slope Water District Multnomah County RFPD #14 Winston-Dillard Water District ' Neskowin Water District Netarts Rural Fire Protection District Netarts Water District Netarts-Oceanside Sanitary District 1 i 1 21 JORDAN SCHRADER ATT014NEYS AT LAW ' Local Government Fee Rate Structure Our hourly rates for attorneys and legal assistants are reviewed periodically, usually once a year, to reflect current levels of legal experience, changes in overhead costs and other factors. Our firm normally charges a standard discounted rate for local governments. Our proposed discounted rate structure for the City of Tigard is listed below. Attorneys $175/hour Paralegals $130/hour Project Assistants $ 35/hour We will keep records of the time we devote to your work, including conferences (both in person and over the telephone), negotiations, factual and legal research and analysis, document preparation and revision, travel on your behalf, and other related matters. We record and charge our time in billing units of two-tenths of an hour. The fees you are charged will be based on the number of billing units incurred on your files at the applicable hourly rate. ' Alternatively, we can negotiate a fixed monthly retainer based on expected service levels and adjusted periodically to reflect actual experience. Such retainers generally cover day-to-day matters but not litigation or major projects. ' Our clients often ask us to estimate the fees and costs likely to be incurred in connection with a particular matter. We will furnish such an estimate based upon ' our best professional judgment, but always with a clear understanding that it is not a maximum or fixed fee quotation. ' We incur on behalf of our clients a variety of fees and expenses in connection with legal services. These include outside charges made by government agencies, service vendors, technicians, other professionals (including outside experts and consultants, accountants, appraisers, contract attorneys, and other legal counsel), title report ' premiums, filing fees, deposition and transcript costs, and witness fees. Whenever such fees and expenses are incurred, we will either ask you to pay them directly or we will include them on our bill to you. We may also incur internal expenses on ' your behalf. Typical of such expenses are long distance telephone charges; postage, messenger, courier, and express delivery charges; on-line time for computer research or database access; facsimile and telex charges; printing and reproduction costs; and ' travel expenses out of the metropolitan area. 1 ' 22 JORDAN SCH RADE R ATTORNEYS AT LAW 1 1 - - . . GARY • - &COUNSELORS AT LAW 1 PROPOSAL 1 IN RESPONSE TO 1 CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 1 1 General and Labor Attorney Services 1 1 October 26, 2005, 2:00 PM i . 1 7illian R. Bruce Caroline Guest Harrang Long Gary Rudnick P.G. 1 1001 SW Fifth Avenue Suite 1650 Portland, OR 97204-1116 1 Telephone: (503) 242-0000 Fax: (503) 241-1458 Email: iillian.bruceCa~harranQ.com 1 caroline.auest0harran4.com 1 A••ANG LONG GARY RUDNICK P,c-: ATTORNEYS & COUNSELORS AT LAW 1 1001 S.W. FIFTH AVENUE 26 October 2005 SUITE 1650 PORTLAND,OREGON Joe Barrett, Buyer 97204 City of Tigard - Information Desk 13125 SW Hall Blvd. TELEPHONE: Tigard, Oregon 97223 503.242.0000 Re: Proposal Submitted by Harrang Long Gary Rudnick PC; Response to City of Tigard's Request for Proposal for FACSIMILE: ' Attorney Services 503.241.1458 Dear Mr. Barrett: OFFICES IN EUGENE, We are pleased and honored to submit this proposal in response PORTLAND & SALEM to the City of Tigard's Request for Proposal for Attorney Services. We are very interested in serving as general counsel and performing all of the OREGON general attorney services set forth in the Request for Proposal. We also wish to provide labor attorney services to the city. I Harrang Long Gary Rudnick was established almost fifty years ago. We are a full-service law firm with 41 attorneys in our Portland, Eugene and Salem offices. The Portland office, which opened on 1 October 2000, employs 17 attorneys. We believe Harrang Long Gary Rudnick is uniquely qualified to respond to the city's needs given our years of experience in providing similar services to several clients. We serve as general counsel to six cities (Brownsville, Dunes City, Eugene, Florence, Roseburg and ' Sutherlin) and to the Housing Authority of Portland. For our general counsel clients, as well as our other public and private clients, we handle tasks on a daily basis in each of the categories set forth under the scope of services section of the request for proposal (with the sole exception of ' bond financing). For instance, in providing general counsel advice to the cities of ' Eugene, Roseburg and Sutherlin, and the Housing Authority of Portland, we attend every regularly scheduled council and board meeting. We often advise our clients in preparation of, and during, Planning ' Commission meetings and contract negotiation sessions. Our written advice takes the form of memoranda, ordinances and resolutions, agreements and other legal documents. Depending on the circumstances relating to a particular client or assignment, we handle simple and complex litigation matters, update codes, policies and regulations in response to case law or legislative changes. I Page 2 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL r Joe Barrett, Buyer City of Tigard - Information Desk 26 October 2005 Transmittal Letter Page 2 In labor providing and employment services for our general counsel and other clients, we negotiate contracts with collective bargaining units and undertake a variety of other services, including but not limited to advising our clients on unfair labor practices, unit clarification and de- authorization matters, during meetings, at hearings and in preparation for, and during, arbitration and other dispute resolution proceedings. r We work as a team, with one attorney typically taking the lead on behalf of each client. In this case, we propose two lead attorneys: Jillian Bruce for general counsel matters and ' Caroline Guest for labor and employment matters. We further propose that Glenn Klein and Sharon Rudnick serve as backup lead attorneys. Jill and Caroline will coordinate work on each matter, appropriately assign tasks, act as a liaison with the city, provide estimates of and commit to meet deadlines for projects and provide regular progress reports. We staff cases as efficiently as possible, assigning work to attorneys with the appropriate level of experience and using paralegal and clerical help whenever possible. Because of our background and knowledge in the municipal arena, we can bring creativity and expertise to city projects; we will also be cost-efficient in providing such services, and start and complete projects in a timely manner. ' If you have any questions or require clarification of the proposal, please contact me at your convenience. On behalf of Harrang Long Gary Rudnick, thank you for your consideration of our proposal for general and labor and employment attorney services. HARRANG LONG GARY RUDNICK P.C. Jillian R. Bruce Shareholder 1 r r r r r Page 3 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL TABLE OF CONTENTS Page r 1. Title Page ..................................................................................................................1 2. Transmittal Letter .................................................................................................................2 3. Table of Contents ................................................................................................................3 4. Firm Qualifications & Experience .........................................................................................5 (a) Background of the Firm ................................................................................................5 (b) Qualifications of the Firm ..............................................................................................5 1. General Counsel Services ...................................................................................5 2. Labor and Employment Attorney Services ...........................................................6 3. Qualifications of the Firm: Specific Experience ...................................................6 1 5. Team Member Qualifications & Experience .......................................................................11 6. Project Approach .....................................................................................................:.........15 7. Compensation .........................................................................................t.........................16 8. Presentation/Interview .......................................................................................................17 9. Additional Services ............................................................................................................17 10. Additional Information .....................................................................................................18 11. References .....................................................................................................................18 ' Proposal Certificates ...........................................................................................................21 Signature Page 22 Attachment A; Acknowledgment of Addenda ......................................................................23 ' Attachment B, Statement of Proposal ........................24 Page 4 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 4. Firm Qualifications & Experience ' (a) Background of the Firm 1 Harrang Long Gary Rudnick P.C. was established in Eugene in 1957. We are a regional law firm of 41 attorneys with offices in Portland, Eugene and Salem.' We provide professional legal services within the areas of litigation, public law, finance, real estate, land use, tax, environmental, pension and employee benefits, labor and employment, estate planning, appellate work and lobbying. Our attorneys provide solid, proficient counsel to a highly diverse clientele including government entities, multinational corporations and regional and local closely held businesses. We represent our clients' interests in Oregon, Washington, California and around the nation in state and federal trial and appellate courts, before administrative agencies, and in private ' mediation/arbitration. Our mission is to provide high quality counsel, leadership and practical solutions regarding law and related disciplines by working collaboratively with our clients. Our goal is to resolve our clients' legal issues as ethically, efficiently and cost effectively as possible. ' (b) Qualifications of the Firm 1. General Counsel Services Our government law attorneys serve as general and special counsel to many Oregon 1 municipalities and special districts. The attorneys in the general government law practice group are experienced in a broad range of areas including real property transactions and redevelopment (including public-private projects and property acquired through condemnation), franchises, environmental laws, public financing, land use (including annexation), budget laws, drafting of ordinances and resolutions, election laws, open meeting, public record and public contracting laws, general business and labor and employment laws, as well as all manner of other statutory and constitutional powers and limitations affecting local governments and administrative and legislative issues that arise in all levels of government. ' Since 1971, our firm has served as general counsel to the City of Eugene. We are starting our second year serving as general counsel to the Housing Authority of Portland ("HAP"). Our attorneys give advice on virtually all legal issues facing the City and HAP. We attend all meetings of the City Council and the HAP Board of Commissioners. ' Contact information for each of our offices is presented below: Portland Office: Eugene Office: Salem Office: 1001 SW Fifth Avenue 360 E. 1- 10 Avenue 333 High Street, N.E. Suite 1650 Suite 300 Suite 200 Portland, OR 97204-1116 Eugene, OR 97401 Salem, OR 97301-3632 ' phone: 503.242.0000 phone: 541.485.0220 phone: 503.371.3330 fax: 503.241.1458 fax: 541.686.6564 fax: 503.371.5336 1 Page 5 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 1 Our public law attorneys also serve as general counsel to several other Oregon cities, including Florence (since 1982), Roseburg (since 1986), Sutherlin (since 2002), Brownsville (since 1982) and Dunes City (since 1995), as well as a number of governmental agencies and special districts such as the Lane Regional Air Pollution Authority, the Lane Council of Governments, the Western Lane Ambulance District, the Housing Authority of Douglas County and the Eugene Urban Renewal District. ' We are often retained by local and state governmental entities and agencies that require special counsel, including counties and cities throughout Oregon, League of Oregon Cities, Association of Oregon Counties, Association of Oregon Renewal Agencies, the Oregon Health & Science University, the Port of Portland, the Portland Development Commission, the Eugene School ' District, the Bethel School District and two school districts in Clark County, Washington. 2. Labor and Employment Attorney Services Our labor and employment practice group has depth and a variety of experience in public sector employment and labor law. As labor and employment specialists, we regularly handle ' employment and labor issues for the firm's public sector clients, which include school districts, cities, counties, special districts, utilities and other public sector associations. Public sector employers must comply with many laws that do not apply to the private sector, including: public meetings and public records laws, constitutional requirements relating to due process, First ' Amendment rights, public employee privacy, PERS and PECBA (the Public Employee Collective Bargaining Act). We routinely advise our public sector clients on these laws and on strategic issues that arise when employment matters involve public trust and scrutiny. ' Our labor and employment attorneys are expert in all areas of personnel law, including performance management, recruitment and selection, employee leave and reinstatement issues, disability and workers' compensation issues, wage and hour issues, and discrimination and harassment-related matters. We also draft employment contracts for executive level employees, employment handbooks and policies, and separation agreements. We develop ' workplace policies, provide employee and management training, and are available on an on-call basis to advise on all employment related issues that arise in the workplace. Our trainings in the last year alone have included presentations on PERS and scope of bargaining issues at the Public Employment Relations Annual Conference, in-depth training on personnel investigations at the Local Government Personnel Institute, and trainings on leave and disability laws, performance management, recruitment and selection, discrimination and harassment prevention, privacy, and wage and hour laws. 3. Qualifications of the Firm: Specific Experience 1 The work we have undertaken on behalf of our public clients showcases our experience in the areas in which the City of Tigard seeks assistance. Specific general attorney experience: • We assisted HAP in developing a mixed-use public-private project along Southwest Burnside. Page 6 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL ' We worked with the urban renewal agency of the City of Keizer on a redevelopment project commonly known as Keizer Station, a multi-phased commercial redevelopment project covering a one hundred acre site. • We represented school districts in the Vancouver, Washington area in acquiring and developing elementary, middle and high schools. • We worked with the urban renewal agency for the City of Salem on a conference center project; we provided guidance on financing, public contracting, land use, environmental, construction, management and operations issues. • We represented HAP on various development and financing issues at the New Columbia site. • We are working with the urban renewal agency for the City of Coos Bay on a public-private commercial redevelopment project. • We helped facilitate the purchase, development and sale of a single family housing development in Washington County, Oregon. • As the former co-lead city attorney for the City of Hillsboro, Jill advised the city on a multitude of real property acquisitions, including purchasing dozens of ' properties for the city's parks and recreation and capital improvements departments, as well as assembling property for development of the Civic Center project, a two-city block mixed use public-private development. • As general counsel to the City of Eugene, we frequently advise staff on condemnation issues, including changes to condemnation statutes. We also represent the city when it is necessary to file condemnation actions. For ' instance, we assisted the City of Roseburg with the condemnation of property needed for construction of a city water reservoir. ' We are currently providing our public clients with advice on how Measure 37 affects condemnation proceedings. • We are currently representing the Portland Development Commission and the ' Urban Renewal Agency of Salem in separate litigation matters against the Bureau of Labor & Industries. • We routinely provide advice regarding state and federal open meetings laws, including holding executive sessions. ' We continuously provide advice to our public clients on issues where the agency acts as a regulator (for example, drafting tree preservation ordinances, or hazardous substances regulations), as well as where the city needs to work with DEQ (for example, to clean up a former landfill). We advise the City of Eugene on issues ranging from potential liability, to mechanisms for minimizing risk, to working with DEQ on a RI/FS. ' The firm maintains a current expertise in state and federal land use laws. We have substantial experience in addressing a broad range of land use issues, including annexation. On behalf of local governments, lawyers in the firm assist Page 7 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL ' in interpreting state laws, drafting of land use regulations, evaluating development proposals. We also regularly represent clients before the State ' Land Use Board of Appeals (LUBA) and the Court of Appeals in land use actions. Attorneys in the firm are also very active in pursuing legislative remedies for statutes that do not serve our clients' interests. ' We are assisting the City of Roseburg Urban Renewal Agency with the assemblage of numerous small, underdeveloped parcels to facilitate ' development that is more appropriate for a prime location adjacent to the freeway. • In recent years, the firm has played a lead role in the development of a completely new land use code for the City of Eugene. In addition to drafting major portions of that City's new code, throughout the adoption process the firm's land use specialists were on hand to provide quick legal analysis, to participate in ' staff work sessions and to attend public meetings where we facilitated the transformation of overall policy direction into a legal, workable set of land use regulations. The firm has been involved in similar land use code updates for ' several other clients. Our lawyers' in-depth understanding of even the most recently passed state and federal land use laws has continued to be essential to our clients' success as their regulations and actions are challenged. ' We also assist our local government. clients with issues related to NEPA. Many of our local government clients receive federal funds for projects (for example, HUD funds and federal highway funds) or require permits (such as a section 404 ' wetlands permit) for a project. Where issues arise related to NEPA with those projects, we advise the local governments, and if necessary, represent them in court. • For more than 10 years, we have assisted the City of Eugene with the development, review and implementation of the West Eugene Wetlands Plan. ' This plan is a national model that balances on an ecosystem-wide basis the need to protect high-value wetlands, with the desire to develop lower-value wetlands. The West Eugene Wetlands Plan required review and approval by the Oregon Division of State Lands, the Army Corps of Engineers and the Bureau of Land Management. We assisted the city and a consortium composed of federal, state, local and non-profit (The Nature Conservancy) entities in creating a wetlands mitigation bank and in public acquisition of hundreds of acres of high-value wetlands. At one point, the plan was challenged in court with NEPA forming the basis of one of the challenges. We represented the City in that litigation. ' In 1996, the voters of the City of Eugene amended the city charter to create a Toxics Board and to require users of hazardous substances to report the amounts of hazardous substances received, used and discharged to the ' environment. It was the first such program in the nation. We assisted the Toxics Board in developing rules to implement the charter amendment, and we successfully defended the amendment in circuit court and the Court of Appeals ' against a challenge from.affected industries. • We advise our public clients on federal and state public records law, including potentially exempt documents. Page 8 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 1 ' We prepare ballot measures and initiatives and work with our municipal clients on various elections law issues. ' We advise our city clients on budget laws, including those relating to appropriations issues. • We are also frequently called upon to follow up on initiatives. For instance, we worked on behalf of the City of Eugene and the League of Oregon Cities in the development of the legislation to implement Measure 5. We represented the City ' of Roseburg in the first major test case under Measure 5 to determine what types of charges fell within Measure 5's limits and which did not. We represented the . City of Monmouth in another Measure 5 case related to exemptions under Measure 5's limits. We represented municipal entities, two former governors, former legislators, former Supreme Court justices and court of appeals judges in a challenge to the validity of Measure 8. We represented a coalition of local ' government entities, individual elector/taxpayers, labor unions, the League of Oregon Cities and the Association of Oregon Redevelopment Agencies in a challenge to Measure 47. Based on the challenges to Measure 47, the ' Legislature referred Measure 50. • Glenn Klein leads a state-wide group interpreting and challenging Measure 37. ' We are currently providing our public clients with advice on how Measure 37 affects condemnation proceedings. • We drafted several amendments to the house bill for the 2003 Oregon Public ' Contracting Code (Chapter 794, Oregon Laws 2003) on behalf of the League of Oregon Cities and the City of Eugene. Post enactment, we provided updated procurement rules and code provisions for the cities of Eugene, Roseburg and ' Sutherlin as well as the procurement rules and policies for the Housing Authority of Portland and the Portland Development Commission. ' We advise our clients on all types of solicitation and procurement issues. We draft, review and revise solicitation documents and contracts for goods, services and public improvements. • We routinely advise clients on the handling and settlement of bid protests and contract disputes. ' We advise clients concerning interpretations of state and federal prevailing wage laws, requirements for the use of disadvantaged business enterprises, and other similar procurement laws. • We routinely draft intergovernmental, concession, franchise license and permit agreements for public entities. Within the last few years, there have been interesting changes in the law relating to solid waste franchises; we have provided advice, negotiated with solid waste franchisees and revised city policies and code provisions accordingly. • We assist the clients in interpreting and negotiating loan and grant documents, including those involving CDBG, HOME and/or HUD funds. Page 9 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL ' Specific labor and employment experience: ' Our, labor attorneys are well versed in management-side labor relations matters in both the public and private sector. We respond to organizational activities, collective bargaining matters and unfair labor practice complaints. ' We regularly advise clients on matters related to collective bargaining, labor relations, union organizing activity, and contract administration. We also regularly defend matters of all kinds before ERB and the NLRB, including recognition petitions, unit clarification petitions, unfair labor practice complaints and election challenges. • We regularly and successfully represent our public employer clients in labor related mediation and interest and grievance arbitration. In addition to selecting arbitrators in our own matters, we are often called upon to assist in the selection of arbitrators for other arbitrations as well. • Our lawyers regularly and successfully defend administrative complaints filed ' with the Oregon Bureau of Labor and Industries, the Equal Employment Opportunity Commission, the Department of Labor, Employment Relations Board, the National Labor Relations Board, and a variety of other state and federal agencies that enforce employment laws. • Our employee benefits lawyers assist clients with the complex and evolving statutes and regulations governing pension and 401(k) plans, deferred ' compensation arrangements and employee benefit programs. As the ground rules change, our lawyers provide legal counsel to safeguard the interests of the employer and employee alike. Our clients range from large, multi-state corporations to closely-held enterprises to cities and counties. By reason of our diverse clientele and broad experience, we are able to understand your business environment and the competitive pressures affecting your employee benefits ' needs. • We advised a large utility district on human resource and operational issues relating to a threatened strike. • We advised a large municipal client on subcontracting emergency fire services at a regional airport to meet the client's public policy goal of providing high-quality emergency services in a cost-effective manner. • We negotiate and draft agreements for, and advise clients about, the transfer of ' operations and public employees to other public employers and to private, nonprofit employers. Recent examples include drafting an agreement for the transfer of court operations from a municipality to a county, and advising an inter- governmental entity about the transfer of public employees to a nonprofit mental ' health entity. • We created a private, nonprofit police athletic league, and have advised the municipal employer about shared staffing issues. • We regularly advise public employers on providing public services and the issues ' that arise with lay-offs, reclassifications, and terminations. Page 10 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 1 t We represent a consortium of public employers for the purpose of reforming the Public Employee Retirement System to lower costs and to make the PERS ' system sustainable. 1 • We regularly advise public clients about performance management and ' disciplinary matters that raise issues of public policy. For example, we recently advised a city about the termination of a director for improper use of public property. ' As general counsel to public entities (including the cities of Eugene and Roseburg, the Housing Authority of Portland, and the Eugene Water and Electric Board), we regularly advise those entities on personnel and labor matters. When ' lawsuits are filed, we defend those entities in all legal venues. We also act as special counsel to public entities to provide advice on labor and personnel matters when the general counsel for those public entities lack the knowledge to ' handle those matters. • In addition to advising public entities on labor and personnel issues, attorneys in ' the labor and employment group assist numerous businesses of all sizes on similar issues. We regularly advise clients on personnel policies, leave laws, Title VII, the Americans with Disabilities Act (ADA), high risk terminations, disciplinary actions, wage and hour laws, contract issues, workers' compensation or disability discrimination, etc. • Our attorneys successfully defend a wide. variety of public and private employers ' in state and federal courts in cases that involve discrimination, harassment, wrongful termination, workers' compensation, ADA, civil rights and all other claims that arise out of the employment relationship. ' We assist our clients by drafting employment contracts, employment handbooks and policies, separation agreements and various otter employment documents ' and forms. • Our attorneys also provide cost-effective employee and management training. Our training sessions in the last year have included presentations on PERS and scope of bargaining issues at the Public Employment Relations Annual Conference, in-depth training on personnel investigations at the Local Government Personnel Institute, leave and disability laws, performance management, recruitment and selection, discrimination and harassment prevention, privacy, and wage and hour laws. • We have advised the Portland Development Commission on various labor and personnel issues, including reviewing and revising PDC's FMLAIOMLA policy. 5. Team Member Qualifications & Experience Jillian Bruce rejoined our firm in September 2004, and practices in our government law group out of the Portland office. Prior to returning to Harrang, she was a partner with Preston Gates ' Ellis LLP and, for more than six years, served as the co-lead city attorney for the City of Hillsboro. Presently, Jillian is the lead attorney for the Housing Authority of Portland. Specializing in public-private development projects, she provides guidance and documentation during every phase of, and around a myriad of issues arising during, a project, including public Page 11 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL contracting, acquisition and disposition of real property, development, design and construction contracts, leases and management and operating agreements. For over ten years, Jillian has ' provided general and special counsel advice to several public agencies in Oregon and Washington, including cities, urban renewal agencies, port districts, ambulance authorities, school districts and housing authorities. Jillian graduated from University of Pacific's McGeorge ' School of Law and is a member of the Oregon, Washington and California State Bars. She is also a member of the American Bar Association, the National Association of Housing and Redevelopment Officials, the Oregon City Attorneys Association, the Association of Oregon Redevelopment Agencies and the Multnomah County Bar Association. Glenn Klein chairs the firm's government law department, and specializes in municipal law, and ' environmental and land use law. After clerking for a federal judge for two years, Glenn served as an honors attorney and then assistant attorney general for six years with the Oregon Attorney General's office. He has served as the city attorney for the City of Eugene for the past nine years, and as general counsel for the Lane Regional Air Pollution Authority and the Lane ' Council of Governments. He is a past president of the Oregon City Attorneys Association, and is a member of the Legal Advocacy Committee for the League of Oregon Cities. A graduate of the University of Oregon School of Law, Glenn completed programs in environmental and natural resources law, and ocean and coastal law. He also obtained masters and bachelor degrees from environmental policy and environmental science programs. Glenn is admitted to the Oregon State Bar and a member of the American Bar Association, the International Municipal Lawyers Association, the Lane County Bar Association and the Oregon City.Attomeys Association. Jerome Lidz specializes in municipal law, constitutional law, administrative law, natural resources law and appellate practice. After graduating from the University of Oregon School of Law with honors in 1977, he served a two-year judicial clerkship with the Oregon Court of t Appeals. He worked at the Oregon Attorney General's office for 15 years, including five years as an assistant attorney general in the education section, five years as the supervisor of all civil appellate cases for the state, and five years as supervisor of the natural resources section. Jerry serves as city attorney for the cities of Florence and Brownsville. He is currently President of ' the Oregon City Attorneys Association. Jerry also has served as an Adjunct Professor of Willamette University College of Law and the University of Oregon School of Law. He has practiced before the state trial and appellate courts, the U.S. District Court for the District of ' Oregon, the Ninth Circuit Court of Appeals, and the United States Supreme Court. Jerry is admitted to the Oregon State Bar and is a member of the American Bar Association, the International Municipal Lawyers Association, the Lane County Bar Association and the Oregon ' City Attorneys Association. Emily Jerome's practice focuses on advising local governments, particularly on matters relating ' to land use. She is recognized state-wide for her expertise in Oregon's Statewide Planning Goals, land use statutes and administrative rules, and legal doctrines relating to land use, such as takings, vested rights, constitutional conditions and administrative procedures. In addition to providing general counsel to clients, Emily represents parties before the Land Use Board of Appeals (LUBA), the Department of Land Conservation and Development (DLCD), the Land Conservation and Development Commission (LCDC), and the Court of Appeals on land use matters, with more than thirty such cases to her credit. Emily earned her JD from the University of Oregon in 1995, where she completed the Environmental and Natural Resources Law Program and was a Staff Editor for the Oregon Law Review. Emily has drafted and defended hundreds of local land use regulations and decisions, and has worked on many land use bills for ' the Oregon Legislature. She is a contributing author for the Oregon Rea! Estate and Land Use Page 12 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL Digest and regularly speaks on land use matters, most recently at events sponsored by the American Planning Association and the Oregon City Attorneys Association. She also provides ' training sessions, compliance counseling and code reviews for local governments. Emily is a member of the American Bar Association, the American Planning Association, the Lane County Bar Association, the Oregon State Bar and the Oregon Women Lawyers Association, and served as the Chairperson for the Land Use and Environmental Law Section of the Lane County Bar. She is also a member of the Oregon City Attorneys Association. Kathryn Brotherton focuses on providing general counsel advice to the firm's municipal and governmental agency clients. Kathryn provides both general and specialized advice to the firm's many government clients and represents them in administrative hearings. Kathryn's expertise ' includes public works, planning, land use and environmental law. She has represented the firm's municipal clients before the Land Use Board of Appeals (LUBA) and the Oregon Court of Appeals. Kathryn earned her JD from the University of Oregon School of Law in 1997, Order of the Coif, where she was an Associate Editor for the Oregon Law Review. She has a BA in Political Science, magna cum laude, from the University of Arizona. Kathryn is the Chair of the Land Use and Environmental Law Section of the Lane County Bar Association. She is a member of the American Bar Association, the Lane County Bar Association, the Oregon State Bar, the Oregon Women Lawyers Association, the Oregon City Attorneys Association, the League of Oregon Cities, and the American Public Works Association. Kathryn has taught courses at the University of Oregon, College of Education concerning "Law and Governance" and "Law and Schools." Kathryn is admitted to practice law in Oregon, the U.S. District Court for the District of Oregon, and the Ninth Circuit Court of Appeals. Sivhwa (Hwa) Go's practice primarily focuses on assisting our government clients with their general counsel needs and with public law-related litigation. Hwa is a former summer associate with the firm and also clerked for the Oregon Department of Justice in the Trial Division. While attending the University of Oregon School of Law, she served as editor-in-chief of the Oregon Law Review, was a member of the Moot Court Board, and earned a certificate of completion in Business Law, as well as her JD in 2003. She also holds a BS, cum laude, in Accounting from Linfield College, and a BA in English from Willamette University. Hwa is a member of the ' American Bar Association, the Lane County Bar Association, the Multnomah Bar Association, the Oregon State Bar and the Federal Bar Association, as well as the Oregon City Attorneys Association and the Oregon Minority Lawyers Association. Caroline Guest chairs the firm's labor and employment practice and she specializes in employment' law and litigation. Caroline has defended employers of all sizes in state and federal ' employment litigation, including sexual harassment, disability, age, race and gender discrimination, wrongful discharge and breach of contract cases. She has expertise in successor liability issues, particularly in regard to wage issues. Caroline has been featured in ' many publications and presentations, including a presenter for "A Practical Guide to Federal Court Rules and Procedures in Oregon" and "Defending Sexual Harassment Claims," Oregon State Bar Continuing Legal Education, as well as author of '"Bankruptcy, Successor Liability, . ' and the Wage Security Fund," published in the Oregon Debtor-Creditor Newsletter and "Protecting Your Client Relationships: Non-Competition Agreements," published in the Oregon Labor Letter. She earned her law degree from the University of Oregon, Order of the Coif, where she was awarded the Paul Patterson Fellowship for exemplary leadership, integrity and dedication to public service. Caroline is a member of the American Bar Association, the Federal Bar Association and the Oregon State.Bar. Page 13 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 1 Christine Nesbit specializes in providing labor and employment counseling and litigation services to governments, nonprofits, educational institutions and businesses throughout Oregon. Christine provides her clients with day-to-day advice and direction on the full spectrum of labor and employment and civil rights related matters; she drafts employment policies and procedures; she conducts investigations of employee misconduct; and she provides negotiation ' services. Christine represents employers in litigation in state and federal court, and before administrative agencies such as BOLT and the EEOC. She has successfully defended employers in a wide variety of claims, including claims of race, sex and disability discrimination, wage and hour violations, breach of contract, and Constitutional violations. She has argued complex issues before state and federal courts and the Oregon Court of Appeals. Christine received her J.D. from the University of California at Davis in 1995. She is a member of the Oregon and California State Bars. ' Sharon Rudnick focuses her practice on providing strategic advice to clients, in order to resolve employment problems creatively, legally and successfully for her clients. Sharon advises, businesses and governments on all matters related to labor and employment, including recruitment and selection; discipline.and discharge; discrimination prevention; wage and hour issues; and employee leave and return to work issues. As part of her service to clients, she ' develops and implements appropriate employment policies and procedures; conducts employee training; provides day-today advice and direction on employment and labor matters; assists with labor negotiations and contract administration. In addition to advising businesses and ' public bodies on employment issues, Sharon is an accomplished trial lawyer who manages the firm's litigation department. Her litigation talents are now chiefly devoted to labor and employment mediations and arbitrations, representing employers before administrative ' agencies such as BOLT, the EEOC, the NLRB and the Oregon Employment Relations Board, and to employment litigation in state and federal courts. Sharon joined the firm in 1983 after. clerking for a federal judge. She is a graduate of the University of California at Los Angeles School of Law, and a member of the Oregon, Washington and California State Bars. Wendy Baker focuses her practice on labor and employment law. Wendy provides §trategic counsel to clients including day-to-day advice, drafting of employment documents ahd investigations work. Prior to joining Harrang Long Gary Rudnick P.C., Wendy worked as an associate attorney with another Eugene law firm, where she specialized in real estate law, foreclosures, bankruptcy and landlord-tenant law. She has an extensive background in news ' media, and worked as a news reporter for The Register-Guard and the Seattle Times prior to J attending law school. Wendy graduated from the University of Oregon, School of Law, in 2002, and is a member of the Oregon State Bar and the Lane County Bar Association. Craig Leis practices labor and employment law, and has litigation experience in state and federal courts, before the Equal Employment Opportunity Commission, state civil rights agencies, and unemployment compensation appeal hearings. His experience includes ' counseling employers on risk management techniques to avoid litigation, as well as serving as an advisor on issues such as wage and hour laws, harassment, retaliation, drafting and updating employment policies, hiring and termination, and non-compete agreements. Craig offers firm clients everyday advice regarding compliance with federal, state and local employment laws. He conducts in-house training for managers and human resource professionals and has presented at employment training workshops. Craig received his law degree from Capital University Law School in Columbus, Ohio, summa cum laude, where he served as associate editor of the Capital University Law Review. He is a three-time recipient of the CALI Excellence for the Future Award and was a Presidential Scholar, Noah J. Kern Page 14 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 1 . ' Memorial Scholar and Dean's Award recipient. Craig is a member of the Oregon and Ohio State Bars. ' Judith Recchio's practice focuses on labor and employment matters and specifically, claims of discrimination and harassment. She is particularly experienced with matters involving Title VII ' and the Fair Employment and Housing Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, EEOC/DFEH investigations, OFCCP compliance audits, and reductions in force, including issues of WARN compliance and OWBPA compliance. Judith is accomplished as a trial attorney before both state and federal courts. She received her J.D. from Santa Clara University School of Law, summa cum laude, and a B.A. in International Relations from the University of California at Davis. Judith is a member of the Oregon and California State.Bars. 6. Project Approach 1 Our mission is to provide high quality counsel, leadership and practical solutions regarding law and related disciplines by working collaboratively with each other and with the city. We believe ' our primary functions in providing legal service to the city are to help it implement its policies and to provide solutions to the diverse challenges it faces daily. We believe we can serve the city in those capacities by advising the city from a positive ' perspective: we seek to expand the city's potential, while presenting accurate assessments of risks and limitations. We envision our role as twofold. We counsel public officials and staff so that decisions are made with the greatest possible understanding of the options and ramifications. Once a decision has been made, our role is to provide any necessary legal services to effectuate the decision, and, if necessary, to defend the city against any legal challenges. We seek to provide these services as efficiently and economically as possible. We consider the City of Tigard to be our client, not individual councils or managers. Nevertheless, we recognize that providing effective legal services to the city requires us to build ' a relationship of trust and confidence with individuals. When we work with public clients, we understand that our clients' governing bodies and executive managers determine policy and that our role is to provide legal expertise as part of a team that implements policy. We have provided legal services in.a variety of ways, and we are happy to adjust delivery of our services to suit the city's preferences and goals. Our attorneys have the experience and ' expertise to provide all of the services listed in the Request for Proposal, and we are proposing to do so. We propose to name one attorney, Jillian Bruce, to support the City Manager, the City Council and staff and coordinate and oversee the general counsel services provided by other ' attorneys in our firm. We also propose to appoint a second lead attorney, Caroline Guest, who has specialized knowledge and experience to serve as the contact attorney for city staff and officials for all labor and employment matters. ' We are acutely aware of the need to manage conflicts issues as well as the cost of legal services. Our practice includes a conflict checks protocol to require conflicts checks on all new clients and matters and, in the case of conflicts, disclose and handle the matter in accordance ' with applicable rules of conduct. We decide with our clients the most cost effective means to provide services in a particular situation. We also make use of our colleagues' broad range of experience and skills to answer specific questions in a timely and cost-efficient way. We also ' work cooperatively and successfully with attorneys from other firms. Page 15 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 7. Compensation Our attorney fees will be based upon the standard hourly rates charged by attorneys in the firm during the work, which the firm reviews and establishes annually. The current hourly rates for ' the attorneys profiled this proposal are as follows:2 Shareholders: Jillian R. Bruce $ 295 Caroline Guest $ 250 ' Glenn Klein $ 275 Sharon Rudnick $ 325 ' Jerome Lidz $ 275 Emily Jerome $ 235 ' Associates: Judith Recchio $ 235 Christine Nesbit $ 210 Kathryn P. Brotherton $ 195 Elizabeth A. Earls $ 185 Sean T. Waters $ 185 ' Craig L. Leis $ 175 Wendy J. Baker $ 160 ' Sivhwa Go $ 155 Paralegals: Joan Wise $ 95 Olga Clouser $ 90 Cindy Cunningham $ 85 Legal Secretaries: $ 55 ' Expenses billed separately include the actual cost of any outside services (such as consultants, investigators and expert witnesses), long-distance telephone calls and facsimiles, extraordinary photocopying (more than twenty pages), filing and recording fees, deposition costs, postage, messenger and special delivery fees, online computer research charges, witness fees, ' 2 We will provide a list of the hourly rates of all Harrang Long attorneys upon request. Page 16 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 1 reasonable travel expenses, medical examination expenses, investigation expenses, or other expenses necessary to the representation. ' "Reasonable travel expenses" mean (1) those expenses that are the most cost effective means of travel, and (2) those travel related expenses (lodging, meals, etc.) that are reasonably incurred in the normal course of travel. If travel is by personal vehicle, reasonable travel expenses will include mileage reimbursement at the IRS rate then in effect; provided, however, that the city will not be charged for travel between any of the Harrang Long Gary Rudnick offices and city offices. In determining the most cost effective means of travel, total travel time and selection of a travel environment conducive to conducting legal services on your behalf are considered. Whenever reasonable, the attorney on a matter will consult with you before ' incurring significant expenses. When it is necessary to incur significant expenses on your behalf, you will be asked to pay those expenses directly to the provider at the time the service is provided, unless otherwise provided in our agreement. ' 8. Presentation/Interview We hope to participate in the interview portion of the evaluation process to further discuss our qualifications and reiterate our interest in providing attorney services to the City of Tigard. 9. Additional Services ' Our firm handles simple and complex litigation. We represent clients in all legal venues, including trial and appellate courts and administrative agencies. Our litigation ranges from routine slip-and-fall cases to complex constitutional and commercial cases. We have ' substantial experience with condemnation actions, construction disputes and breach of contract cases. We represent employers in employment and labor matters as well as civil rights claims, ` and we have challenged the constitutionality of large punitive damage awards in the Oregon ' and United States Supreme Courts on behalf of a large national corporation. As previously mentioned, we have been involved in most of the significant constitutional litigation affecting municipalities, including lawsuits related to PERS, where we represent a coalition of local ' governments; Measure 7, where we challenged a regulatory takings measure on behalf of the League of Oregon Cities; Measure 8, where we represented three former governors and several judges who challenged an initiative to require pubic employees to contribute to their retirement plan; acid Measures 5 and 47, where we both appeared in court and helped draft implementing legislation. ' Our advocacy in appellate courts is part of our litigation practice. Three of our attorneys have substantial experience in the Appellate Division of the Oregon Department of Justice, two as Solicitor General. (the head of the division) and a third as the supervisor of civil appeals. Together, they have argued literally hundreds of cases in the Oregon and federal appellate courts. In addition, five other attorneys in the firm have substantial appellate practice experience. 1 Page 17 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 10. Additional Information ' We have a long-standing commitment to the goal of diversity. In 1994, we adopted the following as one of five goals for our business: ' "Provide a work environment that is interesting, rewarding, supportive and enjoyable for a workforce that is diverse throughout the organization." One of our specific objectives to implement that goal is to "create a diversified workforce." We ' define "diversity" as variety at all levels, including experience, specialties in interest, age, gender, religion, sexual orientation, race, national origin or ancestry, marital status, physical ' abilities, and other special characteristics. To implement our goal and objective related to diversity, we have adopted a number of strategies. We include diversity as a hiring criterion. We include a statement about the firm's ' diversity goals and its non-discrimination policy in employee recruitment information, including sending our policy to each law school before on-campus interviews are conducted. We inform job applicants about the firm's diversity goals and its non-discrimination policy during employee ' interviews. We ensure that hiring committee members and interviewers are aware of diversity issues by conducting diversity training and training on proper interview skills and techniques. We also have included in our personnel manual as the first policy a discrimination-free and harassment-free workplace policy; a copy of the policy from our personnel manual is reprinted and attached to the proposal certifications. ' We have taken tangible steps toward creating a diversified workforce by implementing programs designed to attract that diversified workforce. For example, we do outreach and seek information on qualified minority candidates, such as participating in the Oregon State Bar's ' minority law clerk program. We have arranged for part-time status for attorneys with very young children to address the issues confronting new working mothers. We also were the first business in Lane County to offer insurance coverage for domestic partners. Our current workforce includes 57 women and 30 men. Attached to the Proposal Certifications is a copy of our firm's Harassment and Discrimination-Free Workplace Policy. ' 11. References ' General Counsel References Labor & Employment References City of Eugene EWEB Eugene Water & Electric Board Dennis Taylor Jean Meyers Eugene City Manager Human Resources Director ' phone: 541.682.5336 phone: 541.484.2411 email: dennis.m.taylor65~ci.eugene.or.us email: Jean.Meyers@EWEB.Eugene.or.us Portland Development Commission Housing Authority of Portland Matt Baines Brenda Carpenter General Counsel Director of Human Resources and Administration phone: 503.823.3200 phone: 503.802.8502 email: bainesm(a)pdc.us email: BrendaC@hapdx.org l Page 18 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL I toment References ' Genera! Counsel References Labor 8 Empv C. Randall Tosh City of Eugene ' City Attorney Cathy Joseph City of Salem Claims Manager, CS/HRRS Room 205, City Hall 555 Liberty St. SE Salem, phone: 541.682.5669 ' OR 97301 email: Cathy.A.Joseph(a-)-ci.eugene.OR.US phone: 503.588.6085 email: rtosh@cityofsalem.net 1 This proposal is valid for 90 days from October 26, 2005. 1 - i i 1 1 1 r r r r - r - . r Page 19 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 1 ' SECTION 7 PROPOSAL CERTIFICATIONS " Non-discrimination clause ' 1-he Contractor agrees not to discriminate against any client, employee or applicant for employment or for services, because of race, color, religion; sex, national origin, handicap or age with regard to, but not limited to, the following: employment upgrading, demotion or transfer; recruitment or recruitment advertising; layoffs or termination; rates of pay or other forms of compensation; selection for training; rendition of services. It is further understood that any ' contractor who is in violation of this clause shall be barred from receiving awards of any purchase order from the City, unless a satisfactory showing is made that discriminatory practices have terminated a hat a recurrence of such a is unlikely. Agreed by: Jillian R. Bruce ' Firm Name: Harrang Long Gary Rudnick P.C. Address: 1001 SW Fifth Avenue, Suite 1.650 ' Portland, OR 97204 Resident Certificate ' Please Cheek One: Resident Vendor: Vendor has paid unemployment taxes and income taxes in this state during the last twelve calendar months immediately preceding the submission of this proposal. Or. ❑ Non-resident Vendor: Vendor does not qualify under requirement stated above. (Please sPecif y yQ r state of residence: 1 fJ f Officer's signature: ' Type or print officer's name: Jillian R. Bruce Page 20 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL ATTACHMENT TO PROPOSAL CERTIFICATIONS Harassment and.Discrimination Fred IYorolace. T Ire, firm is committed to, fair and impartial treatment of employees, job applicants, contractors, clients and agents of the company, and to maintain a discrimination and harassment- free work environment where people treat one another with respect. This means that the firm maintains a consistent policy prohibiting discrimination in the employment and treatment of its employees. Vie firm 's policy is not to discriminate against any employee or applicant, far employment because of age (within statutory limits), race, religion, color, sex, national origin or ancestry, marital status, disability, sexual orientation, or any other protected status with respect to hiring, promotion, dernotion, transfer, recruitment, termination, salary level or other forms of compensation, or any other term or condition of employment. The firm also has a policy absolutely prohibiting harassment based on protected status ' during employment. the company defines harassment as any unwelcome verbal, physical or visual conduct based on age (within statutory limits), race, religion, color, sex, national origin or ancestry, marital status, disability, sexual orientation, or any other status protected bylaw or ' policy, when that conduct is made explicitly or implicitly a term or condition of employment, is used as a basis for employment decisions, or has the purpose or effect of unreasonably interfering with performance or of creating an intimidating, offensive or hostile work environment. ' Any employee who believes that the actions or words of another employee or agent c?f the firm may constitute discrimination or harassment is urged to report that belief immediately to his.'her supervisor, the director of administration, office manager, or any shareholder attorney. All reports of possible discrimination or harassment will be investigated promptly and in an impartial manner. Complaints will be kept confidential to the maximum extent practicable; but the,firm cannot promise absolute confidentiality. #-it is necessary to make the identity of involved emplopes known to others, the involved employees will be notified in advance. ' In all cases, the complaining or reporting employee will be advised of the firm's findings and conclusions. ' .In all cases where a finding of discrimination or harassment can be established, the firm will initiate appropriate remedial action to address the issue. In all cases, the appropriate corrective action will reflect the severity of the problem,. the offending employee's overall work ' record and a full consideration of the circumstances surrounding the situation. When deemed appropriate, disciplinary action, up to and including discharge, will be imposed on employees who engage in conduct amounting to discrimination or harassment. ' Any intimidation, coercion, discrimination or retaliation against an individual who files a complaint, or who testifies, assists or participates in any manner in an investigation will not be ' tolerated. All such acts against complainants or other participants should be reported immediately to a super, sor, the director of administration, once manager, or any shareholder attorney. Page 21 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 1 SECTION 8 SIGNATURE PAGE ' The undersigned proposes to perform all work as listed in the Specification section, for the price(s) stated; and that all articles supplied under any resultant contract will conform to the specifications herein. The undersigned agrees to be bound by all applicable laws and regulations, the accompanying specifications and by City policies and regulations. The undersigned, by submitting a proposal, represents that: ' A) The Proposer has read and understands the specifications. 13) Failure to comply with the specifications or any terms of the Request for Proposal may disqualify the Proposer as being non-responsive. The undersigned certifies that the proposal has been arrived at independently and has been submitted without any collusion designed to limit competition. ' The undersigned certifies that all addenda to the specifications has been received and duly considered and that all costs associated with all addenda have been included in this proposal: ' Addenda: No. through No. inclusive. ' We therefore offer and make this proposal to furnish services at the price(s) indicated herein in fulfillment of the attached requirements and specifications of the City. Name of firm: Harrang Long Gary Rudnick P.C. a Address: 1001 SW Fifth Avenue, Suite 1650 ' Portland, OR 97204 Teleppjavpe Number: 503.240.0000 Fax Number: 503.241.1458 ' BY• Date: tr (Signature of.4uthorized Qfcial. Ifpartnership, signature of one partner.) Typed Name title: Jillian R. Bruce, Shareholder ' If corporation, attest: (Corporate officer) Corporation ❑ Partnership ❑ Individual Federal Tax Identification Number (TIN): 93-0844033 Page 22 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 1 ATTACHMENT A ' ACKNOWLEDGMENT OF ADDENDA City of Tigard, Oregon Request for Proposal Attorney Services - General & Labor Close: Wednesday, October 26, 2005 IIWE HAVE RECEIVED THE FOLLOWING ADDENDA: ' I none received write "None Received" ' I 3. ' 2. 4. NONE RECEIVED October 26, 2005 Bate 1 Allian R. Bruce 6 Shareholder Title Harran Lon Garv Rudnick P.C. Corporate Name 1 1i Page 23 of 25 RESPONSE. TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL if ATTACHMENT B STATEMENT OF PROPOSAL ' Name of Consultant: Rarrang Long Gary Rudnick P.C. Mailing Address: 1001 SW Fifth Avenue, Suite 1650 ' Portland, OR 97204 Contact Person: Jillian Bruce Telephone: 503.240.0000 Fax: 503.241.1458 Email: jiBian.bruce@harrang.com ' rr117 2-al, C 22Z -~s Signature of authorised representative Date Jillian R. Bruce 503.240.0000 Tvpe or print name of authorized representative Telephone Number Caroline R. Guest 503.240.0000 1 Type or print name of authorized representative Telephone Number REFERENCES City of Eugene ~ 541.682.5336 Reference #1 Telephone Number ' General Counsel Services Dennis Taylor Project Title Contact Individual 1! Portland Development Commission 503.823.3200 1 Reference #2 Telephone Number Public Contracting; BOLT Dispute Matt Baines Project .Title Contact Individual 1l City of Salem 503.588.6085 ' Reference #3 Telephone Number Conference Center Project; Miscellaneous Advice . C. Randall Tosh Project Title Contact Individual Page 24 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL 1 EWEB Eugene Water & Electric Board 541.484.2411 ' Reference #4 Telephone Number Labor and Employment Jean Meyers Project Tille Contact Individual ' Housing Authority of Portland 503.802.8502 Reference #5 Telephone Number Labor and Employment Brenda Carpenter ' Project.Title Contact Individual ' City of Eugene 541.682.5669 Reference #6 Telephone Alumber ' Labor and Employment Cathy Joseph Project Title Contact Individual ' t 1 Page 25 of 25 RESPONSE TO CITY OF TIGARD, OREGON REQUEST FOR PROPOSAL WRITTEN RESPONSE TO THE 2005 GENERAL LEGAL SERVICES QUESTIONS 1) Provide a list of: a. Any and all complaints filed against you with the Oregon State Bar (dates involved and a narrative of the outcome including correspondence to and from the State Bar and to and from the complainant); Jillian Bruce has no complaints filed against her with the Oregon State Bar. b. Any potential conflicts as identified in Section 9 of the contract that was included in the RFP document. Describe your plan to eliminate any such conflicts with clients you represent on matters contrary to City interests. Harrang Long Gary Rudnick has no current or potential conflicts as identified in Section 9 of the contract included in the RFP document. c. All felony convictions and misdemeanors involving moral turpitude by any attorney that may be providing services to Tigard. No attorney that may be providing services to Tigard has any felony convictions or misdemeanors involving moral turpitude. 2) Provide a writing sample from your firm's lead attorney (up to three) being assigned to the City's account that addresses a municipal issue. This sample should demonstrate the attorney's ability to communicate clearly and effectively in writing. Writing samples from Jillian Bruce and Glenn Klein are attached, addressing Public Records Law and Measure 37: Some Preliminary Thoughts for Implementation by Cities HARRANG LONG GARY RUDNICK P.C. 1001 S.W. Fifth Avenue, Suite 1650 1 Portland, OR 97204 1 Tel: 503.242.0000 Fax: 503.241.1458 eA HOUSING AUTHORITY OF PORTLAND 31 May 2005 PUBLIC RECORDS LAW Jillian R. Bruce Sivhwa Go Harrang Long Gary Rudnick P.C. 1001 SW Fifth Ave., Suite 1650 Portland, OR 97204 (503) 240-7440 iillian.bruce(-harrang.com hwa.go(cDharrang.com PUBLIC RECORDS LAW CONTENTS PUBLIC RECORDS LAW 1 OVERVIEW OF THE PUBLIC RECORDS LAW 1 1. HAP is Subject to the Public Records Law 1 2. HAP's Public Records 1 3. Public Records Exemptions 1 THINGS TO CONSIDER WHEN RESPONDING TO PUBLIC RECORDS REQUESTS 3 i PUBLIC RECORDS LAW This memorandum is intended to provide a brief explanation of Oregon's Public Records Law and how it pertains to the Housing Authority of Portland ("HAP"), as well as identify several considerations that should be kept in mind when responding to requests for HAP's public records. OVERVIEW OF THE PUBLIC RECORDS LAW The most important thing to remember about the Public Records Law (ORS 192.410 to 192.505) is its underlying principle favoring disclosure of public records. The law is intended to further the state policy that the public is entitled to know how government business is conducted. To that end, under state law, every person has the right to inspect any nonexempt public record of a public body in this state. Although the Public Records Law provides people "proper and reasonable opportunities" to inspect, examine, copy or receive a certified copy of nonexempt public records, it does not impose an obligation on the part of the public body to create new documents.' 1. HAP is Subject to the Public Records Law. HAP, as a public housing authority, is a public body subject to the Public Records Law. 2. HAP's Public Records. A "public record" is defined as "any writing containing information relating to the conduct of the public's business prepared, owned, used or retained by a public body regardless of physical form or characteristics." ORS 192.410(4). A "writing" is defined as "handwriting, typewriting, printing, photographing and every means of recording, including letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, files, facsimiles or electronic recordings." ORS 192.410(6). Because of these two very broad definitions, every written document, email, photograph, audio tape, video tape, etc., that HAP possesses and that pertains to HAP business is a public record subject to disclosure unless it fits a specific public records exemption. Examples include: minutes of HAP's Board of Commissioners meetings, HAP policy documents, applications for public housing, emails pertaining to HAP business, etc. 3. Public Records Exemptions. As stated above, every public record prepared, owned, used or retained by HAP is subject to disclosure unless the record fits a specific exemption (exemptions found in ORS 192.445, 192.447, 192.501, and 192.502). If a public record contains both exempt and nonexempt information, the public body is required to separate the information and make the nonexempt portions available for inspection. However, the Oregon Attorney General has recently determined a public body is required to use its existing computer software and databases to retrieve nonexempt information in response to public records requests. PUBLIC RECORDS LAW 1 Last printed: 15 November 2005 It is important to remember that even though a public record may fit an exemption, this generally does not prevent the public body from disclosing the document if it wishes.2 In other words, the public body may choose to waive the exemption if it does not have a good reason for refusing to disclose. Specific examples of exemptions that may be applicable to HAP's public records include: a. Certain documents submitted to HAP by applicants for, and recipients of, loans, grants and tax credits, including personal and corporate financial statements and information, tax returns, credit reports, housing assistance payment requests, tenant files related to certification, etc. ORS 192.501(21); b. Records relating to litigation in which HAP is a party. ORS 192.501(1); C. Information related to the appraisal of real estate prior to its acquisition. ORS 192.501(6); d. Documents related to completed personnel disciplinary actions in which discipline is actually imposed. ORS 192.501(12); e. Unsafe workplace investigation documents. ORS 192.501(17); f. Documents comprising "internal advisory communications." Basically, these are communications between HAP employees and officials containing advice or observations regarding HAP business. ORS 192.502)(1); g. Personal information, such a person's home address, age, weight,. home telephone number, if the disclosure of the information would constitute an unreasonable invasion of privacy. ORS 192.502(2); h. Public employees' addresses, social security numbers, birth dates, and telephone numbers. ORS 192.502)(3); i. Information submitted to HAP in confidence where the information should reasonably be considered confidential, is not otherwise required to be submitted, HAP has obliged itself to keep the information confidential, and disclosure of the information would cause harm to public interest. ORS 192.502(4); 2 The few exceptions to this general rule relate to the personal privacy exemption and the public employee photo identification badge and card exemption, found in ORS 192.445 and 192.447, respectively, as well as trade secrets. PUBLIC RECORDS LAW 2 Last printed: 15 November 2005 j. Public records or information prohibited by federal law from being disclosed. ORS 192.502(8); and, k. Public records or information made privileged or prohibited by other Oregon statutes from being disclosed ORS 192.502(9). THINGS TO CONSIDER WHEN RESPONDING TO PUBLIC RECORDS REQUESTS' The two most important things to consider when responding to a public records request is first, whether the requestor is asking for an existing public record that is prepared, owned, used or retained by HAP, and second, whether HAP has a good reason for not disclosing the record. If the request is for information or documents of which HAP does not have or control, the request may be denied. If the request clearly identifies existing HAP public records, the second consideration comes into play. If HAP does not have a good reason for withholding the requested public record, the record should be disclosed subject to the exceptions noted above; this is in keeping with the underlying principle of the Public Records Law, which favors disclosure of public records. If, and only if, HAP has a good reason for wanting to withhold the public record, does an examination of the specific exemptions become necessary. If an exemption applies, HAP may assert the exemption and deny the request. If no exemption applies, the public record must be disclosed. 3 This section is intended only to identify several general considerations when responding to public records requests. For more detailed information, refer to HAP's Public Records Policies and Procedures, or contact Policy and Public Affairs Director, Shelley Marchesi. PUBLIC RECORDS LAW 3 Last printed: 15 November 2005 MEASURE 37: SOME PRELIMINARY THOUGHTS FOR IMPLEMENTATION BY CITIES' GLENN .KLEIN The purpose of this paper to provide for cities initial information about Measure 37 to help them decide how they want to respond to the Measure, particularly in terms of implementation. In deciding how to respond to Measure 37, cities should keep in mind one of the policies the League adopted several years ago: as cities, we need to balance (and recognize) the rights ofproperty owners (including the new rights granted under Measure 37) with the rights of the citizens that a city also serves. To assist cities with that effort, this paper will first provide a summary of Measure 37. It then will discuss some of the potential options available to cities in responding to the Measure. The choices that each city snakes in how to respond to Measure 37 should involve consideration of several factors. First, the council must decide as a matter of policy how it wants to deal with the Measure. Second, the council needs to understand the extent of its powers under its charter. For the most part, if one city in Oregon can adopt a provision as part of a Measure 37 implementation ordinance, other cities should be able to do so as well. Il.owever, there may be some provisions that require city charter authority. Third, the council must decide its tolerance for legal risk and willingness to engage in litigation if a potential claimant believes that the council has adopted a provision that violates Measure 37. The various components come with different levels of legal risk. The levels of risk for some of the components also differ among cities, since the risk depends in part on the nature of a city's charter and the powers granted by the charter. In light of the possible legal risks.related to potential options for implementation of Measure 37, we strongly urge city councils to consult with their legal counsel before deciding to adopt one or more of them. That discussion can be structured to occur in executive session. SUMMARY OF MEASURE Measure 37 authorizes an owner of property (or interest in property, like a lease) to file a claim with a government that enacts or enforces certain types of land use regulations. To be a valid 'This paper was prepared for the League of Oregon Cities conference on November 5, shortly after passage of Measure 37. As we continue to work through issues related to Measure 37, and gain more experience and undertake more analysis, we will continue to update this paper. The most current update of the paper will be available at www.harran coin. The paper, along with much additional information related to Measure 37, also should be available on the League of Orcgon Cities website at www.orcities.or::/ctirrentissues/ni37.cfni. Measure 37 Overview - 1 HARRANG LUNG GARY RUDNiCK P.C. claim, however, there needs to be more than a land use regulation. That land use regulation must also restrict the use of private real property, and must also reduce the value of the property. Claims generally must be filed with the governmental entity within two years of the regulation's enactment or enlirrcement. As noted above, the Measure does not apply to all regulations, or even all land use regulations as most people understand that term. Measure 37 creates its own definition of "land use regulations," including both state and local regulations. For local regulations, Measure 37 includes only the following: (1) "comprehensive plans," "zoning ordinances," "land division ordinances" and "transportation ordinances"; and (2) metropolitan service district regional framework plans, functional plans, planning goals and objectives. Prior to Measure.' 7, state statutes contained a definition of "land use regulation" that is broader than the definition noted above. Consequently, there are some land use provisions that cities have treated as land use regulations in the past, that will not be "land use regulations" under Measure 37. Even if a regulation is encompassed within Measure 37's definition of "land use regulation" noted above, the regulation still may fall outside Measure 37's purview ]fit comes within one of the five exemptions. Those five exemptions - i.e., five categories of regulations that the Measure does not require a government to waive or compensate for them even if they reduce the value of the properly - are as follows: (1) restrictions on uses commonly and historically recognized as public nuisances under common law; (2) restrictions to protect public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations; (3) restrictions required to comply with federal law; (4) restrictions on use of property to sell pornography or perform nude dancing; and (5) regulations enacted prior to the date of acquisition of the property by the owner or a family member. Measure 37 does not define most of the terms contained in these exemptions. It is unclear how broadly or narrowly the courts will construe them. Consequently, there will be some risk if governments decide to rely on one of the exemptions in order to deny a claim filed under Measure 37. Measure 37 grants a governmental entity 180 days after a property owner files a Measure 37 Measure 37 Overview - HARRANG LONG GARY RUDNICK P.C. claim before the property owner can rile a lawsuit. During that 180 days, should the city determine that the claim is a valid claim, the city may: (1) pay "just compensation" (equal to reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation) and continue to apply and entixce the regulation; or (2) modify, remove or nor apply the regrlation to allow the owner to use the property for a use permitted at the time the owner acquired the property. The city, of course, also could do nothing (in which case the claimant likely would file a lawsuit in circuit court after the 180 day period.) In addition, a city might also be able to acquire the entire parcel (rather than just some type of interest in it). ll'the governmental entity does riot pay or waive a claim within 180 days, the property owner may file a lawsuit to obtain compensation, and likely will now be entitled to have the city pay reasonable attorneys' fees, expenses and costs. The government probably can (but the Measure is ambiguous on this point) waive or modify the regulation even after tiie lawsuit is filed. However, (lie property owner likely will still be entitled to attorneys' fees, costs and other expenses even if government waives or modifies the restriction after the lawsuit is filed. Measure 37 expressly allows a govenunent to adopt or apply procedures for processing claims. The Measure also states, however, that those procedures may not act as a prerequisite to the tiling of a compensation claim in court. OPTIONS FOR COUNCILS TO CONSIDER Implementing ordinance Claims process: Measure 37 expressly authorizes local (and stale) governments to adopt or apply "procedures for the processing of claims." However, the Measure also explicitly states that "in no event shall these procedures act as a prerequisite to the filing of a compensation claim...." If a city decides that it wants to attempt to recover its costs of processing claims (discussed below), then the city should adopt an ordinance establishing a claims process. The process should define the minimum requirements for filing a claim, the fees that will be charged for processing the claim, and the decision-maker for denial or approval of a claim. At the end of this paper is a preliminary sample ordinance that a city could use as a basis for a claims process ordinance. Section 3 of that sample ordinance identifies the types of information that a city might want to request as part of a claim under Measure 37. Also at the end of this paper is a page that contains a more comprehensive list of Measure 37 Overview - 3 HARRANC LONG CARY RUDNiCK P.C. categories of information that it city may want to request as part of a claim. Sections 4 - 6 of the wimple ordinance also describe one way a city ecxild process claims. There is nothing magical about the process. There are probably only two critical components: (1) take actions within 1£0 days of receiving the claim (or risk a lawsuit where you have to now pay the claimant's attorneys' fees); and (2) provide that the city council shall be responsible for waiving or modifying a land use regulation. Except for denials of claims that have no merit - which a city manager or city administrator could lawfrilly deny under Measure 37 the city council probably should be involved in decisions on claims. Claims that "have no merit" are those that would he made by an ineligible claimant, that do not concern a "land use regulation" or that are exempt, or that have similar shortcomings. A decision to waive or modify a regulation must be made by the city council (Measure 37 authorizes the governing body that enacted a regulation to modify or waive). Under Measure 37, a decision to compensate a property owner could be made by the city manager or administrator (if the council delegated such power), but only if the council had already appropriated funds for payment of such claims. The claims processing ordinance should grant the council the authority, where it agrees that it claim is a valid Measure 37 claim, the following options: (1) pay compensation; (2) remove the regulation; (3) modify the regulation; or (4) purchase (or, if necessary, possibly condemn) the entire property either to keep as a city asset, or to re-sell. Section 6 of the sample ordinance contains provisions related to council action. Fees fior processing claims: As noted above, Measure 37 authorizes a city to adopt procedures for processing claims, but compliance with those procedures is not a prerequisite to filing a claim in court. F,stablishment of a fee likely would fall into that category. Nevertheless, a city council likely can impose a fee for processing such claims. A claims processing ordinance could contain a provision that requires claimants to pay a city's actual cost in processing the claim. Fees would be less for claimants that provide more complete information in their claims. City staff would keep track of their time (including time spent by the city's attorneys) and expenses (such as an appraisal) for processing the particular claim. At the end of the process, the city could send the claimant a bill. If the claimant did not pay the bill, then the city could pursue collection efforts, or record a lien on the property for the amount of the bill. Section 7 of the sample ordinance provides for payment of fees. Transfer of property voicb waiver: Measure 37 requires a government to compensate a property owner for a valid Measure 37 claim, or to remove or modify a regulation "to allow the owner to use the property for a use perruitted at the time the owner acquired the properly." This Measure 37 Overview - 4 HARRANG LANG GARY RUDNIC.:K P.C. language suggests that a government may be able to limit the waiver to the claimant only. In other words, a government may be able to provide that the waiver is void upon the claimant's transfer of the property to another. Section 6 (4) of the sample ordinance contains such a provision. Record waiver, and resli-ictions on property: Assuming that a city council agrees that a transfer of the property after a waiver should void the waiver, then the city should record on the property (with county records) the resolution adopted by the council that approved the waiver. A council could (but is not required to) take action to grant a waiver by coi.ncil resolution. The resolution could specify which regulations were waived, and any limitations on that waiver (such as the waiver becoming void if the property is transferred) so that future property owners would know that they could not rely on the waiver. Option to waive "additional regulations Some property owners may come to the city complaining only about particular regulations, rather than, for example, all of the related or linked regulations. In other words, they may attempt to avoid some of the current limitations, but still get some of the benefits of the more recent code. Measure 37 states that a governmental entity can remove or modify regulations to allow a use that was valid at the time the property owner acquired the property. A claims processing ordinance could enable - but not require a city council to decide to waive more than the specific regulations encompassed in a particular claim. Option to "rood fy " regulations to authorize a particular project: There may be some valid Measure 37 claims where a property owner is willing to work with the city to develop property in a manner that the city (i.e., the city council) determines would be beneficial, particularly if the alternative is to pay compensation or simply waive the regulations. A claims processing ordinance could allow a city council the opportunity to consider "modifying" the regulations to allow a particular development prgiect. Private cause of action: Granting a waiver of regulations for a claimant may have the effect of reducing the value of a neighbor's property. Based on powers granted by many city charters, a city council may have the authority to authorize the neighbor whose property was devalued to file a lawsuit (in circuit court) to recover from the claimant the amount of the reduction in value. If a city has a charter with a general grant of power (usually section 3 or 4 of the charter), it is likely that the council has that power. If the city does not have a charter with a general grant of power, and instead, has an enumerated powers charter (containing a specific list of each power that the city possesses), then the question is whether one of the specific powers would authorize this type of provision. Section 8 of the sample ordinance contains this type of provision. MC,Mlfc 37 Overview - 5 i-iARRANG LONG GARY RuDNiCK P.C. In addition to t.hc options discussed above, there area number of'other questions which have policy implications as well as legal risks associated with them. Below are sonic of those issues. Decide how staff should respond to requests for information about prior regulations. City staff likely are going to be asked by potential claimants questions about how to file Measure 37 claims or about prior regulations that would govern in the event of a waiver. Before that happens, the council (or city manager or administrator) should determine the extent to which staff should provide i -fonnation. Consider having staff provide an information sheet that describes the city's claims processing ordinance (assuming that the council adopts one), and otherwise decline to answer questions related to Measure 37 since the information being requested would relate to tlu-eatened litigation. If the city chooses to perform research for potential claimants, then decide whether the city should recover its staff costs in performing that research. Discuss with county handling of claims for property in urban transition area/urban growth boundary area. Claims that are related to property located outside the city limits, but inside the urban growth boundary, pose particularly tricky policy and administrative issues. Many of these areas are covered by urban transition agreements between the city and county in which the city is delegated the authority and responsibility for administering the land use and building codes. Under Measure 37, only the governing body that enacted a regulation can waive or modify that regulation. Cities should decide ]low they would like Measure 37 claims arising in this urban transition area handled, and begin in the near future discussions with the county to reach agreement. Decide as a general matter whether to track possible waivers in nearby jurisdictions that could impact the city. If a jurisdiction with land use authority over property within relatively close to your city grants a waiver, the resulting development could have a significant impact on your city. Measure 37 does not authorize a governing body to waive any regulation for just any reason. Instead, it only authorizes waiver of "land use regulations" (as defined by the Measure) that restrict the use of private real property, and only if the regulation is not exempt (for example, health and safety regulations) and reduces the value of the property. In other words, Measure 37 authorizes a waiver only for valid Measure 37 claims. If a claim is not valid, but the governing body waives the regulation, a court should be willing to overturn the waiver. A policy question for a city council is whether the city should track claims filed with nearby jurisdictions in case a waiver is granted that will significantly impact your city where the waiver was not authorized. It is also worth noting that people dissatisfied with a city's waiver or modification of a land use regulation likely will be able to file a lawsuit against your city to challenge that modification or waiver. Such a lawsuit might be filed by the claimant's .neighbor who doesn't want a commercial use next to the neighbor's house, or might be tiled by a land use or environmental organization. Mensure 37 Overview - G HARRANG LUNG GARY RIJDNICK Y.C. Review of work program. As noted above, adopting a new, non-exempt "land use regulation" that restricts the use of property and results in a decrease in lair market value would be subject to compensation claims by every existing property owner. In light of that possibility, before a city devotes too much staff time (or funds for consultants) to continue working on updating land use codes or comprehensive plans, the city should ask itself whether the end-product of that work will be subject to a valid Measure 37 claim. If the answer to the question is yes, then the city may want to postpone or cancel that work. In many cases, that work is being required by the State as part of a periodic review task. The League has begun discussions with State officials in an attempt to get the State to think about whether such periodic review tasks should be modified. Measure 37 Overview - 7 I-IARRANG LUNG GARY RUDNICK Y.C. SCHULTE, ANDERSON, DOWNES, ARONSON & BITTNER P.C. LEE ARONSON• ATTORNEYS AT LAW RONALD P. ANDERSON THOMAS A. BITTNER 811 SOUTHWEST NAITO PARKWAY, SUITE 500 DONALD J. DeFRANCQ GILE R. DOWNES PORTLAND, OREGON 97204-3379 SIMON J. HARDING• TELEPHONE (503) 223.4131 RETIRED WILLIAM F. SCHULTE FAX (503) 223-1346 DEBRA L. ANDERSON E-MaO: schulhof@schuhe-law.com 'ALSO ADMITTED IN WASHINGTON MICHAEL J. FEARL -ALSO ADMITTED IN ILLINOIS ROBERT P. SCHULHOF, JR•- JASON A. SKELTON October 24, 2005 Joe Barrett, Buyer City of Tigard - Information Desk 13125 SW Hall Blvd. Tigard,-OR 97223 Re: Request for Proposal Attorney Services - General Dear Mr. Barrett: Enclosed please find our proposal to. provide general legal services for the City of Tigard. Our firm is a small litigation and business firm which prides itself on its ability to deliver the type and quality of services normally associated with a "megafirm", without sacrificing responsiveness to client needs and the one on one attention and interaction which can be crucial to effective representation. We have crafted our proposal so to provide the City with what we believe is the best possible service. I have extensive personal experience in similar positions and can provide that one point of contact necessary to ensure continuity of services, familiarity with client issues and needs and probably most importantly, to build a comfortable working relationship with City Counsel, Managers and Department Heads. In addition to my personal services I provide as the needs arise, the conduit to the more specialized areas of expertise our firm has to offer. With this model Tigard will always have a single point of contact responsive to its needs while at the same time having the entire collective experience and talent of a highly capable law firm at its beck and call. I am confident that our firm can provide the City of Tigard with the best possible working relationship and representation possible. I look forward to hearing from you. Sincerely, SCHULTE, ANDERSON, DOWNES, ARON.S.ON_&L_B TTNER P.C. / t 1 obert-P. Schwlhof, RPS:Ikg FAAdmin\Markebng\City of Tigard\Transnuttal Lerie2.doc J, REQUEST FOR PROPOSAL FOR ATTORNEY SERVICES - GENERAL TO CITY OF TIGARD, OREGON Submitted by Schulte, Anderson, Downes, Aronson & Bittner, P. C. 811 SW Naito Parkway - 5th Floor Portland, OR 97204 503.223-4131 503.223-1346 Fax www.schutte-law.com TABLE OF CONTENTS Page Statement of Proposal i 1. Firm Background 1 II. Qualification of Firm 1 III Team Members, Qualifications & Experience 2-3 IV. Scope and Schedule of Work 4 V. Compensation 4 VI. Legal Community References 5-6 Proposal Certification 7 Non=Discrimiation Clause & Resident Certificate Signature Page 8 STATEMENT OF PROPOSAL Name of Consultant: Schulte, Anderson, Downes, Aronson & Bittner, P.C. Mailing Address: 811 SW Naito Parkway, 5th Floor Portland, OR 97204 Contact Person: Robert P. Schulhof, Jr. Telephone: 503.223.4131 Fax: 502.223.1346 Email: rschulhof(aD-schulte-law.com Accepts all the terms and conditions contained in the City of Tigard Request. for Proposal for Attorney Services - General only, and the attached agreement for attorney services achment C): Date: 10/26/05 Authorized Representative Lee Aronson 503.223.4131 Robert P. Schulhof, Jr. 503.223.4131 I. Firm Background Schulte Anderson Downes Aronson & Bittner ("Schulte Anderson') has been a fixture in the Oregon legal Community since 1909. Over the past 30 years we have consciously worked to remain a small firm with the attention and courtesy to its clients that one would expect from such an organization, while maintaining a big presence and reputation in the legal community. We are a litigation firm of ten attorneys concentrating on the representation of individual, municipal and corporate clients before the courts and administrative bodies of Oregon, Washington and the Federal Government. Our counsels boast over 200 years of combined legal experience and are recognized leaders in their specialties and areas of concentration. II. Qualification of Firm Schulte Anderson is a small multi-discipline firm with concentrations in litigation, real estate and business law. We have over recent history represented counties, municipalities, businesses and individuals in a variety of matters ranging from tort defense to business advice and real estate. We have extensive experience representing government entities directly or through their insurance carrier in 42 USC 1983 actions, defense of claims of discrimination, contract disputes, land use matters and torts. Our firm also represents and advises public utilities, large corporations and small businesses in the realms of business and legal advice, contracting, risk management and defense of claims. In addition to extensive litigation experience, we have several attorneys well-versed in business and contract law, including significant experience and training in government contracting. Specific cases and clientele may be made available upon request. Schulte Anderson is submitting this proposal for the General Attorney Services only. We are not making any proposal for the Labor Attorney segment of the RFP. RFP for General Attorney Services Page 1 of 2 III. Team Members, Qualifications & Experience Robert Schulhof (Associate): Primary attorney for day-to-day account management. Bob is presently the Senior Associate at the firm. He began his legal career with the U.S. Navy Judge Advocate General's Corps where he gained extensive experience representing Sailors and Marines before various administrative hearings and courts martial as well as the U.S. Navy in Federal Court. While on active duty he served as a defense counsel, Director of the Navy's Tort Claims Division for the Western U.S., a Special Assistant U.S. Attorney and a legal advisor to several commands. Bob's last two assignments in the JAG Corps included a 3 year stint as the Senior Attorney for Naval Station Pearl Harbor, Hawaii, one of the Navy's largest and most active bases and 2 years as the Senior Deputy Counsel for the Navy Region Northwest, a command responsible for naval facilities in four states. While in Pearl Harbor he performed many of the same functions as that of a city attorney working on issues as diverse as service contracts, utilities, construction and land use matters and labor negotiations and management of the civilian work force, including the Federal Fire Fighters and the bases civilian staffed. Police Department. Bob's work as the Senior Deputy at Navy Region Northwest included managing a complicate trial docket as and representation of the-Navy in the Federal Courts as a Special U.S. Attorney for civil and criminal matters. He also assisted with the representation of the Navy in several environmental and land use matters. After leaving active duty, Bob settled in Oregon where he continued in public service as a Deputy District Attorney prosecuting a variety of misdemeanor and felony person crimes before joining the firm in 2001. Presently Bob represents several clients in complex litigation involving product liability and construction defect defense as well as real estate matters. In addition to his litigation expertise Bob has also distinguished himself in mediations and negotiations creating several innovative and highly favorable settlement agreements and solutions for his clients. Education: Indiana University (B.A., 1991), Southern Illinois University School of Law (J.D., 1994). Bar Admissions: Oregon, 2000; Illinois, 1994; U. S. District Court for the District of Oregon, Court of Appeals for the Armed Forces Memberships: Multnomah County Bar Association (MBA), Oregon State Bar Association (OSB), Oregon Association of Defense Counsel, Member OSB Unlawful Practice of Law Committee, Committee Member MBA New Lawyer Division, Member OSB Military Assistance Program. RFP for General Attorney Services Page 2 of 2 Lee Aronson (Senior Partner): Litigation management and strategy. After graduating from law school in 1977, Lee clerked for the Honorable Robert Y. Thornton at the Oregon Court of Appeals for one year. Following his clerkship he moved to Bend, Oregon where he practiced with a small firm handling a diverse caseload including criminal, family law and a variety of civil litigation matters. When he moved back to Portland, he focused his practice at the then Jensen, DeFrancq, Holmes and Schulte law firm with emphasis on insurance defense litigation. In the course of his career Lee has successfully represented numerous clients including public utilities, municipalities and businesses in all stages of litigation in the Oregon, Washington and Federal Courts. He became a partner in the firm in 1984 and is presently the President and Senior Partner. Education: Antioch College (B.A., 1973), Lewis & Clark Law School (J.D., 1977). Memberships: Multnomah County Bar Association, Washington State Bar Association, American Bar Association, Oregon State Bar Association, Oregon Association of Defense Counsel, Defense Research and Trial Lawyers Association, Civil Jury Instruction Committee,. Simon Harding (Partner): Litigation Simon was hired in 1991 as a summer clerk, and following his law school graduation in 1992 joined the firm as an associate, becoming a partner in 2000. Simon's practice consists of litigation defending insured clients, as well as handling personal injury claims for injured people and general litigation matters. Simon's practice includes personal injury, professional malpractice, nursing home and construction defect litigation. Representative insurance company clients include United Services Automobile Association (USAA), State Farm Insurance Companies, Mercury Insurance Company, Brotherhood Mutual Insurance Company, The Professional Liability Fund, Portland General Electric Company, Interstate Insurance Company and Fireman's Fund. Education: Lewis and Clark College (B.S., 1988), University of Oregon Law School (J.D., 1992). Bar Admissions: Oregon, 1992; Washington, 1994 Memberships: Multnomah County Bar Association, Oregon State Bar Association, Washington State Bar Association, Oregon Association of Defense Counsel, Gus J. Solomon Inns of Court. Jason A. Skelton(Associate): Litigation and litigation support, including depositions, research and motion drafting. Jason, is the newest member of the Schulte Anderson team. He comes to the firm with several years of experience as both a plaintiff and defense counsel focused primarily on personal injury and intentional torts. Jason also has experience in real estate and land contracting. RFP for General Attorney Services Page 3 of 3 Education: Indiana University (B.A., 1998), Indiana University (J.D., 2001) Bar Admissions: Oregon, 2001; United States District Court, District of Oregon, 2002. Michael J. Fearl (Associate): Litigation support, including depositions, research and motion drafting. After completing law school, Mike worked for four years as a staff attorney, and one year as branch manager and supervising attorney, at St. Andrew Legal Clinic in Hillsboro, Oregon. During that time, he represented the indigent and working poor in all manner of family law disputes. Since joining the firm in 2002, he continues to practice family law, along with a new emphasis on the representation of insured clients in insurance defense litigation. Education: Lewis & Clark College (B.A., 1989), Lewis & Clark Law School (J.D., 1996). Bar Admissions: Oregon, 1996 Memberships: Multnomah County Bar Association, Oregon State Bar Association (Family Law Section), Washington County Bar Association. IV. Scope and Schedule of Work Robert Schulhof will be the attorney designated as the primary attorney for this project. He will handle the day-to-day needs of the City and be the primary contact and provider of legal assistance. In addition to his standard duties Mr. Schulhof will prioritize projects and associate other attorneys within the firm depending upon the demands of the various projects and the talents and experience the other team members can bring to bear so as to ensure the highest quality service and product is delivered. Mr. Schulhof will also be the attorney designated to regularly attend City Council meetings if such attendance is desired by the client. V. Compensation Weekly City Counsel attendance - $130 per hour (3-hour minimum) All other work performed on an hourly basis as follows: Partner rate $200.00 per hour Sr. Associate rate $175.00 per hour Associate rate $160.00 per hour Paralegal $75.00 per hour RFP for General Attorney Services Page 4 of 4 VI. Legal Community References a. Legal community references. Charles Smith Mitchell Lang & Smith 101 SW Main St Ste 2000 Portland OR 97204 (503) 221-1011 Heather Beasley Davis Rothwell Mullin et al 1300 SW 5th Ave Ste 1900 Portland OR 97201 (503) 222-4422 Ted E Runstein Kell Alterman & Runstein LLP 520 SW Yamhill St Ste 600 Portland OR 97204 (503) 222-3531 James C Carter Nike Inc 1 SW Bowerman Dr Beaverton OR 97005 (503) 671-3570 b. Client References. David A. Aamodt Assistant General Counsel Portland General Electric 121 SW Salmon St, 1 WTC-13 Portland, OR 97204 Alan R. Beck Professional Liability Fund P.O. Box 1600 Lake Oswego, OR 97035 (503) 639-6911 RFP for General Attorney Services Page 5 of 5 John Koselka Chief Litigation Counsel for K2 Inc. Koselka & Devine 115 W. Maumee St. Adrian, MI 49221 Tom Lee Laura LaFrance State Farm Insurance P.O. Box 221 DuPont, WA 98327 (503) 454-3636 (503) 454-3631 Jennifer Tate USAA Insurance P.O. Box 35718 Colorado Springs, CO 80935 (800) 525-7164 x38708 Gary Lupien & Yvette Barrades AIG P.O. Box 1378 San Ramon, CA 94583 (925) 901-2440 RFP for General Attorney Services Page 6 of 6 PROPOSAL CERTIFICATIONS Non-Discrimination Clause The Contractor agrees not to discriminate against any client, employee or applicant for employment or for services, because of race, color, religion, sex, national origin, handicap or age with regard to, but not limited to, the following: employment upgrading, demotion or transfer; recruitment or recruitment advertising; layoffs or termination; rates of pay or other forms of compensation; selection for training; rendition of services. It is further understood that any contractor who is in violation of this clause shall be barred from receiving awards of any purchase order from the City, unless a satisfactory showing is made that discriminatory practices have terminated and that a recurrence of such acts is unlikely. Agreed by: Firm name: Schulte, Anderson, Downes, Aronson & Bittner, P.C. Address: 811 SW Naito Parkway, 5t' Floor, Portland, OR 97204 Resident Certificate Vendor has paid unemployment taxes and income taxes in this state during the last twelve calendar months immediately preceding the submission of this proposal and is a resident vendor. Officer's signature: Typed name: Lee S. Aronson RFP for General Attorney Services Page 7 of 7 SIGNATURE PAGE The undersigned proposes to perform all work as listed in the Specification section, for the price(s) stated; and that all articles supplied under any resultant contract will conform to the specifications herein, The undersigned agrees to be bound by all applicable laws and regulations, the accompanying specifications and by City policies and regulations. The undersigned, by submitting a proposal, represents that: A) The Proposer has read and understands the specifications. B) Failure to comply with the specifications or any terms of the Request for Proposal may disqualify the Proposer as being non-responsive. The undersigned certifies that the proposal has been arrived at independently and has been submitted without any collusion designed to limit competition. The undersigned certifies that all addenda to the specifications has been received and duly considered and that all costs associated with all addenda have been included in this proposal: Addenda: Not applicable. Name of Firm: Schulte, Anderson, Downes, Aronson & Bittner, P.C. 811 SW Naito Parkway, 5th Floor Portland, OR 97204 Telephone: 503.223-4131 Fax: 503.223-1346 By: Date: 10/26/05 Typed Name: Lee Aronson, President of Corporation Federal Tax I.D. No. 93-0805242 RFP for General Attorney Services Page 8 of 8 t ScHULTE, ANDERSON, DOwNES, ARONSON & BITTNER P.C. ATTORNEYS AT LAW LEE ARONSON* 811 SOUTHWEST NAITO PARKWAY, SUITE 500 RONALD P. ANDERSON THOMAS A. BITTNER PORTLAND, OREGON 97204-3379 DONALD J. DeFRANCQ GILE R. DOWNES TELEPHONE (503) 2234131 SIMON J. HARDING- FAX (503) 223-1346 RETIRED WILLIAM F. SCHULTE E-Mail: DEBRA L. ANDERSON -ALSO ADMITTED IN WASHINGTON MICHAEL J. FEARL -ALSO ADMITTED IN ILLINOIS ROBERT P. SCHULHOF, JR-- JASON A. SKELTON MEMORANDUM To: City of Tigard From: Robert Schulhof Date: 11/15/2005 Re: Written Response To City of Tigard Questions Ladies and Gentlemen: Below please find my firm's responses to your questions. 1. Provide a list of., a) Any and all complaints filed against you with the Oregon State Bar (dates involved and a narrative of the outcome including correspondence to and from the State Bar and to and from the complainant); We have provided a list of the complaints and status as verified by the OSB as to each attorney who may work on this account. Lee Aronson: Complaint received February 2000, dismissed May 2000 Complaint received August 2001, dismissed October 2001 Debra Anderson: Complaint received unknown, dismissed October 1993 Complaint received unknown, dismissed January 1994 Michael Fearl: Complaint received March 2001, dismissed April 2001 Robert Schulhof: Complaint received March 2002, dismissed March 2002 Complaint received April 2002, dismissed October 2002 Memo to Tigard City of Tigard November 15, 2005 Page 2 With the exception of Mr. Schulhof the firm does not possess the correspondence and file maintained by the Oregon State Bar. We have requested the detailed files from the Oregon State Bar, and once we have received the material we will forward the documents as a supplemental response. The OSB's summaries of Mr. Schulhof's file are included. The complaint against Mr. Schulhof stems from his time at the Yamhill County District Attorney's Office. Both complaints were filed by the same individual following his prosecution by Mr. Schulhof and sentencing for Felony DUII and multiple counts of Vehicular Assault. The general nature of the complaints concerned allegations that Mr. Schulhof hid evidence, mislead the jury and suborned perjury from various witnesses. Both complaints were dismissed with no action. b) Any potential conflicts as identified in Section 9 of the contract that was included in the RFP document. Describe your plan to eliminate any such conflicts with clients you represent on matters contrary to City interests. None noted. c) All felony convictions and misdemeanors involving morale turpitude by any attorney that may be providing services to Tigard. None. 2. Provide a writing sample from your firm's lead attorney (up to three) being assigned to the City's account that addresses a municipal issue. This sample should demonstrate the attorney's ability to communicate clearly and effectively in writing. Samples of Mr. Harding and Mr. Aronson's work pertaining to municipal issues have been enclosed. Mr. Schulhof's memorandums and opinions pertaining to municipal and government work are unavailable due City of Tigard November 15, 2005 Page 3 to restrictions imposed by his former employer. Upon request Mr. Schulhof would be happy to provide a writing sample from his litigation practice. Very truly yours, SCHULTE, ANDERSON, DOWNES, ARONSON & BITTNER P.C. Robert P. 56ulhQf;:.jr. Schulte-Anderson Schulte Anderson Downes Aronson & Bittner, P.C. 811 SW Naito Pky, Suite 500, Portland, OR 97214-3379 ♦503-223-4131 Fax 503-223-1346 www.schulte-law.mm BAR MATERIALS COMPLAINT SUMMARY TO: State Professional Responsibility Board FROM: Scott A. Morrill, Assistant Disciplinary Counsel RE: Robert P. Schulhof, Jr., Portland (Bar No. 000018) (Active) Complainant: Ron Williams (4-10-02) RULES: DR 7-103(B) [public prosecutor shall make timely disclosure of exculpatory evidence]; and DR 7-102(A)(5) [knowingly make a false statement of fact]. DATE: September 25, 2002 BACKGROUND INFORMATION This is an appeal of staff's dismissal of the complaint pursuant to BR 2.5(c). SUMMARY OF COMPLAINT Ronald Williams alleges that in the course of prosecuting him on various criminal charges, Robert Schulhof failed to disclose exculpatory evidence and lied to the jury in closing arguments regarding a Medical Condition/Health History Profile form. Williams was arrested on October 14, 2000, after a motor vehicle accident in Yamhill County. He was charged with Driving While Suspended, Driving Under the Influence of Intoxicants, Failure to Perform the Duties of a Driver In An Accident, five counts of Recklessly Endangering Another and an outstanding warrant from Washington. Prior to trial, Williams' attorney Carol Frederick made several requests for discovery. After initial discovery was provided, Frederick made at least three separate requests for a supplemental police report noted in the main report. Oregon State Police Trooper Pruden prepared the supplemental report. Williams believed that the Pruden report contained evidence that would tend to prove his innocence or reduce the sentence. Williams claims Schulhof never sent the Pruden report to Frederick. Williams' second concern is that Schulhof lied to the jury regarding a form titled "Medical Condition/Health History Profile." Williams believed that Schulhof knew that i. Complaint Summary - Robert P. Schulhof Jr., Esq. (Ron Williams) Page 2 this form was prepared shortly after Williams was booked into jail, but told the jury that the form was prepared almost 24 hours later. SUMMARY OF RESPONSE Schulhof denies any wrongdoing in his prosecution of Williams. He responded that the Oregon State Police did not immediately provide the Pruden report to his office. When the Oregon State Police located the Pruden report, they forwarded it to Schulhof's office. Schulhof followed office procedure and instructed his staff to send it to Williams' attorney. Notes on the Pruden report indicate that Schulhof instructed his staff to send it to Frederick, and that it was sent on November 28, 2000. The trial was on December 14, 2000. The contents of the Pruden report were not helpful to Williams' position. It identified a witness who saw Williams shortly after the accident who believed that Williams was intoxicated. Schulhof responded that the date and time noted on the Medical Condition/Health History Profile indicated that it was prepared nearly 24 hours after Williams was booked. While these forms typically are prepared contemporaneously with booking, the date on this particular form showed that this one was prepared 24 hours after Williams was booked. OTHER EVIDENCE Williams previously filed a complaint against his defense attorney, Carol Frederick. I reviewed that file and learned that Frederick was aware of the contents of the Pruden report and had discussed it with Schulhof prior to trial. She knew that the contents of the report were not helpful to her client's case. Frederick also suspected the Medical Condition/Health History Profile had been prepared 24 hours after Williams had been booked. She did not call the attending nurse to testify on this point because she felt that the nurse's testimony would not help Williams. ETHICS ANALYSIS DR 7-103(8) fa public prosecutor in criminal litigation shall make timely disclosure to counsel for the defendant of the existence of evidence, known to the prosecutor, that tends to negate quilt of the defendant, mitigate the degree of the offense or reduce the punishment]. Williams complained that the Pruden report was never disclosed to his lawyer, even though known to Schulhof. There was confusion at the Oregon State Police regarding the report. Eventually, the Oregon State Police sent it to Schulhof's office and his staff forwarded it to Frederick, as shown by the note on the report. The report Complaint Summary - Robert P. Schulhof Jr., Esq. (Ron Williams) Page 3 contained Trooper Pruden's notes regarding his interview with a witness. The witness testified at trial that Williams appeared intoxicated. Even if the report was never sent to Frederick, she was aware that the witness might testify and what he might say. The evidence provided shows Schulhof's staff did send the Pruden report to Frederick, she knew the contents of the report, and it was not helpful to Williams anyway. DR 7-102(A)(5) [a lawyer shall not knowingly make a false statement of fact. Schulhof argued to the jury in closing argument that the Medical Condition/Health History Profile form was prepared nearly 24 hours after Williams was booked. His attorney argued that it was prepared at the same time as Williams was booked. The significance of the timing is that the report did not indicate that Williams was intoxicated. The report was dated and time stamped approximately 24 hours after Williams was arrested and booked. Williams testified that the report was prepared contemporaneously with his booking. Fredericks suspected the report had been prepared later and did not call the attending nurse to testify. The evidence submitted supports Schulhof's version. Even if the evidence did not support Schulhof's explanation, there is no evidence that he knowingly made a false statement of fact. In re White, 311 Or 573, 815 P2d 1257 (1991) [attorney held not guilty on count for which Bar could not prove a knowing misrepresentation]. Williams is clearly unhappy with the outcome of his case and refuses to acknowledge that his conduct has any bearing on why he was convicted. Nothing that he says raises any question of an ethical violation by Schulhof, much less probable cause to charge him with any alleged violation of the code. RECOMMENDATION Dismissal. SAM/aa r,REGO STATE BAR 1935----- - 5200 S,W. Meadows Road, P.O. Box 1689, Lake Oswego, Oregon 97035-0889 www.osbar.org (503) 620-0222 or inside Oregon 1-800-452-8260, Regulatory Services Fax (503) 968-4457 October 21, 2002 Ron Williams SID #6497535 Snake River Correctional Institution 777 Stanton Boulevard Ontario, OR 97914 Dear Mr. Williams: At a meeting held on October 18, 2002, the State Professional Responsibility Board reviewed the matter you brought to our attention concerning attorney Robert Schulhof. After carefully considering this matter, the Board found no violation of the Code of Professional Responsibility by Mr. Schulhof. I was directed to advise you and Mr. Schulhof of this decision and to close our file. Thank you for your assistance and cooperation in this matter. Very truly yours, Scott A. Morrill Assistant Disciplinary Counsel Extension 344 SAM/aa cc: Robert P. Schulhof Jr., Esq. 40-02 Recycled/Recyclable p .Qp. , REGO STATE BAR 1935 5200 S.W. Meadows Road, P.O. Box 1689, Lake Oswego, Oregon 97035-0889 www.osbar.org (503) 620-0222 or inside Oregon 1-800-452-8260, Regulatory Services Fax (503) 968-4457 October 31, 2002 Ron Williams SID #6497535 Snake River Correctional Institution 777 Stanton Boulevard Ontario, OR 97914 Dear Mr. Williams: As previously conveyed to you, the State Professional Responsibility Board dismissed your complaint against Robert Schulhof at a meeting held on October 18, 2002. I reviewed the two additional letters and supporting materials you sent to our office. As they do not make new allegations against Mr. Schulhof, this file will remain closed. Thank you for your assistance and cooperation in this matter. Very truly yours, Scott A. Morrill Assistant Disciplinary Counsel Extension 344 SAM/aa cc: Robert P. Schulhof, Esq. (w/encl Williams letter rec'd 10-23-02) Recycled/Recyclable Schulte-Anderson Schulte Anderson Downes Aronson & Bittner, P.C. 811 SW Naito Pky, Suite 500, Portland, OR 97214-3379 ♦503-223-4131 Fax 503-223-1346 www.schulte-law.com Writ'ing Samples V 13 00" I have reviewed the file and conducted some research. Essentially, if a decision is made to conduct cursory or infrequent inspections, and that decision is made because of competing demands for limited city dollars, (and thus a "policy" or "governmental" decision) the courts have held such decisions to be discretionary. In Sager v. City of Portland, plaintiff sued the City of Portland for negligence in failing to inspect city sidewalks. the trial court granted a directed verdict in favor of the city and plaintiff appealed. Sager v. City of Portland, 68 Or. App. 808 (1984). The appellate court affirmed. The city had had a goal of inspecting sidewalks every five years, but had failed to do so. The plaintiff alleged that the failure of the city to inspect the sidewalks and notify the abutting landowner was negligent. The appellate court noted first, that the plaintiff had not proven that any inspection that SIH\011 sh.m= might have been undertaken was negligently conducted. Secondly, the court noted that even if the plaintiff had made such a showing, the city "could not be liable in any event because the timing of the inspections, which involve questions of availability of funding and ordering of priorities, is a discretionary function.[citing ORS 30.265 (3) (c), the discretionary immunity statute]" Sager, 684 P.2d at 603. Thus, if one merely substitutes the word "quality" or "depth" for "timing" above, this case covers the situation in Additionally, a good argument can be made that the case is exactly on point because the timing of the inspections in - was dependent on a lack of money, which lack led to frequent, though cursory inspections. From this point one could argue that frequent but cursory inspections are more sensible than infrequent but in depth inspections in which the properties of each seat are examined in detail. In a municipal park situation, where there is heavy use, vandalism and etc., frequent inspections, I would argue, are the clear choice. In Mosley v. Portland School District No. 1J, 108 Or. App. 7 (1991), the appellate court held that a decision on what school security measures to take was protected as an exercise of discretionary immunity. The court cited Lowrimore v. Dimmitt, 310 Or. 291 (1990), a case in which the court held that a decision by a police officer to engage in hot pursuit, though "discretionary" in one sense of the word, was not an exercise of discretion in a policy-making sense and thus protected under the statute cited -2- SM011 s6.mem above. The key difference between Lowrimore and Mosley is the level at which the decision was made and the factors that weighed in making the decision. As the Lowrimore court stated:' [P]ublic bodies are immune from respondeat superior tort liability if the conduct of the employee whose acts are alleged to create the liability involved the exercise of "policy judgment." Lowrimore at 294 The court continued, quoting at length from McBride v. Magnuson, 282 Or. 433, 578 P.2d 1259 (1978). The court first noted that many public employees must assess facts and decide how to act upon them, but this does not automatically entitle the decision to statutory protection. Id. at 1029. Whether a decision is entitled to protection depends on the kind of judgments for which responsibility has been delegated to the particular officer. Discretion... involves 'room for policy judgments,'or the responsibility for deciding 'the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Id. at 1029, quoting McBride, supra (citations omitted). Another factor is the level at which the decision is made and whether the decision involves delegated responsibility for making decisions, or whether it is a decision made and carried out by the same person. In Stevenson v. State of Oregon, 290 Or. 3, 619 P.2d 247 (1980), plaintiff sued the state for -3- SJI-T\011sh.mem negligently placing or failing to adequately shield a traffic signal so that one light appeared to be controlling traffic in one direction when it was in fact controlling traffic running perpendicular to the direction plaintiff had been travelling. The court stated: One clue to whether governmental discretion was exercised is to examine the level of administration at which the decision claimed to be "discretionary" was taken and whether there is evidence of delegation of responsibility for policy choice to that level, as distinguished from the routine decisions which every employe must make in every action he or she takes. Stevenson, 290 Or. at 14, 619 P.2d at 247. In Stevenson, the court held that as a matter of law, the decision not to shield that traffic signal was not entitled to discretionary immunity protection. The court came to this conclusion because the decision involved was one which may or may not have been entitled to immunity, and the burden of proof in cases of claimed immunity, is on the governmental entity claiming immunity. Id. at , 619 P.2d at 254. Because there was "nothing in the record to suggest that the responsible employes of the highway division made any policy decision of the kind we have described" the court held there was no immunity. Id. at , 619 P.2d at 254. Thus, "[E]vidence of how the decision was made is necessary." Id. at 15, 619 P.2d at 647. The decision regarding inspection of the swings by the City of ~ would appear to be within the.protection of the statute. Evidence must be entered sufficient to carry the burden -4- SJM011 sn.man on this issue, that the decision was made as a policy decision, after weighing competing interests. If for example, the decision to inspect was made on a spur of the moment basis by a city maintenance worker who happened to be in the park on a weekly basis carrying out other duties, the decision would not be protected. If, however, the decision was made by a supervisor, after considering all of the other tasks that had to be carried out by the maintenance crews in a limited workweek or with a finite number of workers, then the decision would be protected. - 5 - SM011 sh.mem I 1 2 3 4 IN THE CIRCUIT COURT OF THE STATE OF OREGON 5 FOR THE COUNTY OF MARION 6 In the Matter of 7 STATE OF OREGON on the Relation of Jerry Egger, Case No. 04C-13855 8 Plaintiff, 9 V. 10 DIANNE LANCASTER, aka Chief ORCP 21 MOTIONS OF DEFENDANT 11 Procurement Officer; KEVIN SHUBA; BILL OREGON REHABILITATION NESSLEY; MR. KRUSE; MS. KAFOURY; ASSOCIATION 12 GARTEN SERVICES, INC. and the members of its governing board and (ORAL ARGUMENT REQUESTED) 13 executive officers; OREGON REHABILITATION ASSOCIATION and its 14 controlling members and relevant Individuals directing its unlawful actions; 15 JOHN POLLINO, as agent for Garten Services and also acting for himself and his 16 spouse; and PORTLAND HABILITATION CORPORATION and relevant individuals 17 directing its unlawful actions; RANDALL EDWARDS as State Treasurer, 18 Defendants. 19 20 CERTIFICATE OF COMPLIANCE WITH CONFERRAL REQUIREMENT 21 Pursuant to UTCR 5.010, conferral is not required with regard to the issues 22 raised in these motions. These motions are brought pursuant to ORCP 21A(8), for 23 failure to allege ultimate facts sufficient to constitute a claim. Motions brought under 24 that rule are exempt from the conferral requirements of UTCR 5.010. 25 26 .Page 1 - ORCP 21 MOTIONS OF DEFENDANTS OREGON REHABILITATION ASSOCIATION SCHULTE, ANDERSON, DOWNES, ARONSON & BITTNER P.C. 811 SOUTHWEST NAITO PARKWAY, SUITE 500 PORTLAND, OREGON 97204-3379 F:\Clients\ U S L 113610%004 Oregon Rehab (Egger-State Oregon)\Pleadings\ORCP 21 MOTIONS.doc TELEPHONE (503) 223-4131 FAX (503) 223-1346 1 1 REQUEST FOR ORAL ARGUMENT 2 Pursuant to UTCR 5.050, Defendants Oregon Rehabilitation Association and its 3 controlling members and relevant individuals (hereinafter collectively referred to as 4 ORA) request oral argument and expect argument to require ten (10) minutes. Official 5 court reporting services are not requested. 6 ORCP 21 MOTIONS 7 1. PLAINTIFF LACKS STANDING TO BRING THIS LAWSUIT. 8 Pursuant to ORCP 21A(8), ORA moves to dismiss plaintiffs complaint with 9 prejudice on the ground that the complaint fails to allege facts which demonstrate that 10 plaintiff has standing to bring these claims, and fails to allege facts which describe a 11 justiciable case or controversy. 12 2. PLAINTIFF FAILS TO ALLEGE SUFFICIENT FACTS TO CONSTITUTE A 13 CLAIM IN COUNT 1 OF HIS FIRST CLAIM FOR RELIEF. 14 Pursuant to ORCP 21A(8), ORA moves to dismiss with prejudice count 1 of 15 plaintiffs first claim for relief, on the ground that count 1 fails to state ultimate facts 16 sufficient to constitute a claim. 17 3. PLAINTIFF FAILS TO ALLEGE SUFFICIENT FACTS TO CONSTITUTE A 18 CLAIM IN HIS SECOND CLAIM FOR RELIEF 19 Pursuant.to ORCP 21A(8), ORA moves to dismiss with prejudice plaintiff's 20 second claim for relief because the claim fails to state ultimate facts sufficient to 21 constitute a claim. Plaintiffs second claim seeks a temporary restraining order and a 22 permanent injunction. The court should dismiss this claim because neither a temporary 23 restraining order nor an injunction is available in this case. 24 25 26 Page 2 - ORCP 21 MOTIONS OF DEFENDANTS OREGON REHABILITATION ASSOCIATION SCHULTE, ANDERSON, DOWNES, ARONSON & WINER P.C. 811 SOUTHWEST NAITO PARKWAY, SUITE 500 PORTLAND, OREGON 97204-3379 F:1Clients\_U S L 113610/004 Oregon Rehab (Egger-State Oregon)\Pleadings\ORCP 21 MOTIONS.doc TELEPHONE (503) 223-4131 FAX (503) 223-1346 1 4. IN THE ALTERNATIVE, PLAINTIFF'S COMPLAINT SHOULD BE MADE 2 MORE DEFINITE AND CERTAIN. 3 In the alternative, pursuant to ORCP 21D, ORA moves the court for an order 4 requiring plaintiffs Complaint to be made more definite and certain. Plaintiff's 5 allegations are too indefinite and uncertain for ORA to determine the precise nature of 6 the charge against it. 7 SUMMARY OF FACTS. 8 A. Background. 9 This case involves the Products of Disabled Individuals Act, ORS 279.015 and 10 279.835 to 279.855 (the Act). The Act's purpose is 11 "to encourage and assist disabled individuals to achieve maximum personal independence through useful and 12 productive gainful employment by assuring an expanded and constant market for sheltered workshop and activity center 13 products and services, thereby enhancing their dignity and capacity for self-support and minimizing their dependence on 14 welfare and need for costly institutionalization." 15 ORS 279.840. The Act requires public agencies, including state and local governments, 16 school districts and other entities, to purchase certain goods and services from qualified 17 rehabilitation facilities (QRFs) without using the public bidding process. The prices for 18 such goods and services are established by a process set forth in the Act and the 19 administrative rules promulgated to implement it. 20 B. Plaintiff's Complaint 21 This action is pleaded in the nature of a private attorney general action. Plaintiff 22 is denominated as the State of Oregon on the relation of Jerry Egger. Egger seeks to 23 recover some $16 million for the state's general fund. The complaint alleges that 24 certain defendants have "overcharged" public agencies for products and services made 25 by the disabled since 1996. 26 Page 3 - ORCP 21 MOTIONS OF DEFENDANTS OREGON REHABILITATION ASSOCIATION SCHULTE, ANDERSON, DOWNES, ARONSON & BITTNER P.C. 811 SOUTHWEST NAITO PARKWAY, SUITE 500 F:1Clients\_U S L 113610\004 Oregon Rehab (Egger-State Oregon)\Pleadings\ORCP 21 MOTIONS.doc PORTLAND, OREGON 97204-3379 TELEPHONE (503) 2234131 FAX (503) 223-1346 1 In Count One of the First Claim for relief, Egger alleges that "various defendants" 2 have exploited disabled individuals and have received illegal payments by "milking and 3 bilking state government and other levels of government[.]" Complaint ¶ 2. Egger 4 alleges that defendant Garten Services and the Oregon Department of Administrative 5 Services (DAS) "conferred secretly and privately about the price of Garten's Mail 6 Service and established a price workbook that Garten completed and returned to 7 DAS[.]" Complaint % 4. Egger alleges that this practice, claimed to be under the Act, 8 resulted in government bodies paying "an inflated rate for the various services or 9 products" purchased under the Act. Complaint ¶ 4. 10 However, DAS is required to establish the prices for the products and services. 11 DAS does this based on cost information provided by the QRFs. Public agencies, in 12 turn, are required to purchase goods and services from QRFs provided the product or 13 service meets an agency's specifications and is available at the time the, agency needs 14 it. See ORS 279.845 and 279.850; OAR 125-055-0030. 15 Egger alleges that "other corporations" have likewise used. DAS to require public 16 entities to pay "an inflated rate" and states that defendant ORA, on information and 17 belief, is an example. Complaint ¶ 4. This is the only reference to ORA in the entire 18 complaint. No specific allegation of any ultimate fact appears anywhere in the 19 complaint with regard to ORA. 20 Count 2 of plaintiffs first claim is directed to defendants other than ORA and is 21 therefore not discussed here. 22 In his second claim, Egger seeks an injunction against "those violating the law as 23 alleged in Count One." Complaint $ 7. He further alleges that he "will suffer substantial 24 harm that is irreparable and for which there is no adequate legal remedy" unless a TRO 25 and permanent injunction is entered. Complaint ¶ 7. No specific harm to Egger is 26 Page 4 - ORCP 21 MOTIONS OF DEFENDANTS OREGON REHABILITATION ASSOCIATION SCHULTE, ANDERSON, DOWNES, ARONSON & BITTNER P.C. 811 SOUTHWEST NAITO PARKWAY, SUITE 500 PORTLAND, OREGON 97204-3379 F:\Clients\-U S L 1 13610\004 Oregon Rehab (Egger-State Oregon)\Pleadings\ORCP 21 MOTIONS.doc TELEPHONE (503) 2234131 FAX(503)223-1346 1 suggested by the complaint, other than the general objection of a taxpayer who 2 disagrees with the manner in which public funds are spent. 3 POINTS AND AUTHORITIES. . 4 A. Plaintiff lacks standing to bring this lawsuit. 5 No justiciable case or controversy is presented by a general taxpayer complaint. 6 The Complaint fails to allege any statutory basis for standing. It fails to allege that 7 plaintiff obtained authorization to bring a private attorney general action. Finally, it fails 8 to demonstrate that a decision in the case will have a practical effect on Egger's rights. 9 Egger's failure to establish standing and his failure to allege a justiciable controversy 10 are fatal to his complaint, and it should be dismissed with prejudice. 11 General taxpayer standing is not recognized in Oregon courts. See Gruber v. 12 Lincoln Hospital District, 285 Or 3, 8 (1979). The judicial power conferred upon the 13 courts by Article VII of the Oregon Constitution permits courts to grant relief only when 14 presented with a justiciable controversy. To grant relief in the absence of a justiciable 15 controversy would amount to issuing impermissible advisory opinions. See Oregon 16 Creamery Mfr's Assn v. White, 159 Or 99 (1938). 17 In order to present a justiciable controversy, plaintiff must allege some injury to 18 himself and not merely an interest in the proper expenditure of public funds. Gruber, 19 supra; see also Eacret v. Holmes, 215 Or 121, 125 (1958) (Standing denied when 20 "complaint discloses no special injury affecting the plaintiffs differently from other 21 citizens."). Plaintiff has alleged no special injury to himself and he therefore fails to 22 present a justiciable controversy. The complaint must be dismissed. 23 B. Count 1 of plaintiff's First Claim for Relief fails to allege sufficient facts 24 to constitute a claim. 25 Count 1 is directed to defendant Garten. Defendant ORA is mentioned only as 26 "an example" of other entities engaged in the same conduct attributed to Garten. Page 5 - ORCP 21 MOTIONS OF DEFENDANTS OREGON REHABILITATION ASSOCIATION SCHULTE, ANDERSON, DOWNES, ARONSON & BITrNER P.C. 811 SOUTHWEST NAITO PARKWAY SUITE SUITE 500 F:\Clients\ U S L 113610\004 Oregon Rehab (Egger-State Oregon)\Pleadings\ORCP 21 MOTIONS.doc PORTLAND, OREGON 97204-3 TELEPHONE (503) 2234131 FAX (503) 223-1346 1 Garten's Amended ORCP 21 Motions make clear that plaintiff fails to allege any 2 wrongful conduct by Garten. ORA hereby joins in Garten's amended motion against 3 Count 1 of the First Claim for relief and incorporates by reference the points and 4 authorities cited by Garten in support of that motion. 5 Plaintiff complains that Garten and DAS conferred about pricing of certain 6 services covered by the Act; that Garten availed itself of the mandatory portions of the 7 Act in order to acquire business with public agencies; and that Garten charges other 8 entities less for the same services. 9 As Garten's Amended Motion against count 1 makes clear, plaintiffs allegations 10 fail to state a claim for relief. Even if true, the allegations do not describe improper 11 conduct by Garten.. The Act requires DAS to establish the price for products and 12 services offered by QRFs. ORS 279.845. DAS must confer with QRFs in establishing 13 prices. OAR 125-055-0030. Public agencies are required by statute to purchase from 14 QRFs items on DAS' procurement list. ORS 279.850. 15 The complaint alleges no improper conduct by Garten. The only reasonable 16 inferences suggested by the complaint are that Garten is a QRF and that it participates 17 in the procurement program set forth in the Act and in the administrative rules DAS has 18 promulgated to implement it. Of course, another inference that may be drawn is that 19 Egger disagrees with the policy goals of the Act. But that disagreement does not give 20 rise to a claim against QRFs that avail themselves of the procurement practices created 21 by the Act to further its policy goals. 22 Because ORA is cited only as "an example" of other entities allegedly engaged in 23 similar conduct, Count 1 of plaintiffs first claim suffers from the same deficiency as to 24 ORA as it does with regard to Garten. Accordingly, Count 1 of the First Claim should be 25 dismissed with prejudice. 26 Page 6 - ORCP 21 MOTIONS OF DEFENDANTS OREGON REHABILITATION ASSOCIATION SCHULTE, ANDERSON, DOWNES, ARONSON & BITTNER P.C. SUITE 500 B 11 SOUTHWEST NAITO PARKWAY ,379 F:1Clients\ U S L 113610\004 Oregon Rehab (Egger-State Oregon)\Pleadings\ORCP 21 MOTIONS.doc PORTLAND, OREGON 97204-3 TELEPHONE (503) 2234131 FAX (503) 223-1346 1 Furthermore, for the complaint to identify ORA only as "an example" of other 2 entities allegedly engaged in wrongful conduct runs afoul of the requirements of ORCP 3 18A. That rule requires a complaint to set forth "a plain and concise statement of the 4 ultimate facts constituting a claim for relief." This complaint lacks a single allegation as 5 to any act or omission of ORA. Without specific factual allegations of conduct by ORA, 6 the complaint fails to state a claim against it and should be dismissed. 7 C. Injunction is not available because irreparable iniury is not alleged. 8 ORCP 79A permits issuance of a temporary restraining order or preliminary 9 injunction (assuming other requirements of that rule are met) if continuance of the acts 10 to be restrained "would produce injury to the party seeking the relief." ORCP 79 A(1)(a). 11 ORCP 79B allows a temporary restraining order only if 12 "13(1)(a) [i]t clearly appears from specific facts shown by affidavit, declaration or a verified complaint that immediate 13 and irreparable injury, loss, or damage will result to the applicant[.]" (emphasis added) 14 15 The Court of Appeals has described an injunction as "an extraordinary remedy, 16 to be granted only on clear and convincing proof of irreparable harm when there is no 17 adequate legal remedy." Gildow v. Smith, 153 Or App 648, 653 (1998). The harm to be 18 suffered by the applicant must be significant. See, e.g. Wilson v. Parent, 228 Or 354, 19 370 (1961) ("The injury or annoyance must be of a real and substantial character."). 20 Plaintiff in this case fails to allege any specific injury, whether irreparable, 21 substantial or otherwise, that he will suffer if an injunction does not issue. He fails to 22 demonstrate that other remedies are inadequate. The complaint merely states the 23 conclusion that "Plaintiff will suffer substantial harm that is irreparable and for which 24 there is not adequate legal remedy." Complaint ¶ 7. This allegation violates the 25 requirement of ORCP 18A that a complaint set forth a plain and concise statement of 26 Page 7 - ORCP 21 MOTIONS OF DEFENDANTS OREGON REHABILITATION ASSOCIATION SCHULTE, ANDERSON, DOWNES, ARONSON & BITrNER P.C. 811 SOUTHWEST NAITO PARKWAY, SUITE 500 PORTLAND, OREGON 97204-3379 F:\Clients\ U S L 113610\004 Oregon Rehab (Egger-State Oregon)1Pleadings\ORCP 21 MOTIONS.doc TELEPHONE (503) 223A 131 FAX (503) 223-1346 1 the ultimate facts constituting a claim. The complaint is devoid of facts to support that 2 conclusory allegation. 3 Because plaintiffs second claim fails to allege a basis for an injunction, that claim 4 should be dismissed with prejudice. 5 D. In the alternative, plaintiff's complaint should be made more definite 6 and certain. 7 If the court denies any of the preceding motions to dismiss, plaintiff should be 8 required to make the complaint more definite and certain. In its present form, the 9 complaint is insufficient for defendant Garten to determine the nature of the claims 10 made against it. Defendant ORA is mentioned only as "an example" of corporations 11 allegedly guilty of the same wrongs plaintiff attributes to Garten. 12 Apparently, ORA is supposed to ascertain the nature of the claims against it by 13 analogy from the claims against Garten. But the allegations directed to Garten are so 14 conclusory, indefinite and uncertain that it is impossible to determine the precise nature 15 of the plaintiff's claim against that defendant. Therefore, if the motions to dismiss are 16 denied, plaintiff should be required to re-plead, including specific allegations of ultimate 17 fact with regard to ORA. Otherwise, ORA cannot determine the precise nature of 18 plaintiffs claims against it. 19 Dated this day of November, 2005. 20 SCHULTE, ANDERSON, DOWNES, ARONSON & BITTNER P.C. 21 22 23 By' Lee Aronson, OSB #77100 24 Attorneys for Defendant Oregon Rehabilitation Ass'n 25 26 Page 8 - ORCP 21 MOTIONS OF DEFENDANTS OREGON REHABILITATION ASSOCIATION SCHULTE, ANDERSON, DOWNES, ARONSON g BITTNER P.C. 811 SOUTHWEST NAITO PARKWAY, SUITE 500 PORTLAND, OREGON 97204-3379 FAClients\ U S L 1 13610\004 Oregon Rehab (Egger-Stale Oregon)\Pleadings\ORCP 21 MOTIONS.doc TELEPHONE (503) 223.4131 FAX (503) 223.1346 1 CERTIFICATE OF SERVICE 2 1 hereby certify that on the day of November, 2004, 1 served the foregoing 3 ORCP 21 MOTIONS OF DEFENDANT OREGON REHABILITATION ASSOCIATION 4 5 on: 6 The Law Farm Edward N. Fadeley 7 81820 Melody Lane Creswell, OR 97426 8 Attorney for Plaintiff g Kathryn G. Georges Assistant Attorney General 10 1162 Court Street NE Salem, OR 97301 11 Daniel A. Doyle 12 Daniel A. Doyle PC 2731 12t" Street SE 13 Salem, OR 97302 Attorney for Defendant Kruse 14 Joel Wilson 15 Bullivant Houser Bailey 888 SW Fifth Ave., Suite 300 16 Portland, OR 97204-2089 Attorneys for Garten Services, Inc. 17 18 by mailing to them a true and correct copy thereof, placed in a sealed envelope 19 addressed to the addresses set forth above, and deposited in the U.S. Post Office 20 at Portland, Oregon on said day with postage prepaid. 21 22 LEE ARONSON, OSB #77100 23 Of Attorneys for Defendant Oregon Rehabilitation Association 24 25 26 Page 9 - ORCP 21 MOTIONS OF DEFENDANTS OREGON REHABILITATION ASSOCIATION SCHULTE, ANDERSON, DOWNES, ARONSON & BrITNER P.C. all SOUTHWEST NArrO PARKWAY, Su1TE 500 PORTLAND, OREGON 97204-3379 FAClients\_U S L 1 13610\004 Oregon Rehab (Egger-State Oregon)\Pleadings\ORCP 21 MOTIONS.doc TELEPHONE (503) 223-4131 FAX (503) 223-1346