A Canby City Council meeting was abruptly canceled last week and some of the city’s top administrators are on personal leave, amid claims from the city attorney that the mayor and council may have violated public meetings laws, employment requirements and other ethical responsibilities of elected officials.
The bombshell allegations came in a March 9 letter from Canby City Attorney and Assistant City Administrator Joe Lindsay to Mayor Brian Hodson and the Canby City Council, which was provided to The Canby Current. Lindsay has been with the city for 11 years.
Among other concerns, the letter discusses a February 15 council meeting and subsequent executive session, which involved the mayor, council and City Administrator Scott Archer. The Current‘s Tyler Francke was also in attendance, which is permitted under state law.
The original meeting agenda said the executive session was to review and evaluate the employment-related performance of Archer, but it went far beyond that, also involving alleged complaints and accusations of poor performance against Lindsay and other manager-level city employees.
At the meeting, one council member presented a document purported to be a series of complaints from city staff, most of them anonymous, about Lindsay, Archer and other managers.
A copy was not provided to the Current, though, according to Lindsay, it was not a legally protected closed record.
“These statements themselves were compiled outside of executive session, so they actually aren’t privileged at all,” Lindsay wrote in the March 9 letter. “In fact, these are public records, cannot be manipulated or destroyed, and must be made available for the public.
“Therefore, any misstatements in them are defamatory, will be retained for at least a five-year period, and can be viewed by anyone. I understand that this material made untrue and harmful claims about me, along with Scott Archer and other City of Canby employees.”
Lindsay said the materials and discussion during the executive session also involved his wife and family members who own a business in Canby.
“This clearly and drastically falls outside the scope of evaluating Scott Archer,” Lindsay said. “It should go without saying, that defamation is legally actionable, and those who compile it, copy it and further disseminate it can be sued for the damages. It is also not protected behavior.”
The executive session violated several provisions of Oregon law and ethics, Lindsay alleges. First, Archer should have received more notice and advanced information about what the meeting would concern, and the right to request that his evaluation be held in public.
Secondly, and more seriously, he claims that any time the mayor or councilors presented complaints or discussed matters relating to employees other than Archer, they violated the law regarding executive sessions and overstepped their bounds as elected officials and policy-makers.
Lindsay, as one of three employees hired by and under the direct oversight of the council (the others being city administrator and municipal judge), should have been permitted to hear and respond to any complaints related to his performance, he said, and should have been afforded the same rights that were not given to Archer.
Lindsay had previously, in a February 13 email, attempted to advise the mayor and council regarding the February 15 session, stating that the reasons given for calling for the session were unnecessarily vague and did not appear to follow the requirements for an evaluation of a public employee.
“What has transpired here is not kind or fair to the two actual employees that you owe employment rights to,” Lindsay alleged. “You basically set out to surreptitiously maximize harm to us — holding a secret meeting after running a wholly incomplete and unfair quasi-investigation, creating permanent, untrue records before even giving either employee a chance to respond or even reaching out to anyone other than those disgruntled few to try to get it correct.
“Plus, you allowed this to happen around personnel matters — ones that we have our hands tied from talking about, and ones that are outside your purview.”
Also problematic was the aforementioned document provided during the executive session and the fact that the council directed Archer to take action on the complaints and also discussed disciplining him in the form of a performance improvement plan (law requires that official action be taken only by open public vote).
Finally, Mayor Hodson followed up on the executive session in a February 23 email, in which “it is demonstrated with specificity that the subject-matter scope of the meeting was breached,” Lindsay alleged.
That email is an “extraordinarily problematic public record,” according to Lindsay.
“The liabilities to the city are high here: the known and intentional misuse of an executive session against legal advice, seemingly taking actions in that session, welcoming and copying only negative and untrue complaints, then spreading plainly unverified, defamatory materials to achieve maximum harm to council employees,” he said.
“And following up by creating public documents of how you did exactly as described above in an email that itself appears to break public meetings law.”
In addition to the claims of public meetings law violations, Lindsay’s letter accuses newly elected City Councilor Jim Davis, who is also the longtime chief of the Canby Fire District, of crossing ethical boundaries by advocating for city funds or resources to be awarded to the fire district while serving in his two roles.
Lindsay claims Davis has privately “pressured” Archer on more than one occasion to approve a sublease between the fire district and a third company at the district’s northside station, which is on land the city owns and leased to Canby Fire for $1.
“Fire Chief Davis may ethically ask for this, but Councilor Davis cannot,” Lindsay wrote. “And he cannot separate this dual role and cannot ethically misuse his position as councilor to put pressure on Scott or the council to benefit himself [or] his employer.”
He also alleges Davis behaved unethically in encouraging Archer to support the Canby Fire District’s requests for American Rescue Plan Act (ARPA) funds controlled by the city, which would be used to purchase new radios and reimburse the district for the installation of new water lines at the nortside station.
In emails to the mayor and city councilors last week, which were also provided to the Current, Archer echoed some of these concerns and shared examples of some of the texts and emails.
“As I understand ethics law, these are Jim’s own, personal ethical issues,” Archer wrote. “However, I fear that his pressuring staff and council to bring forward items may entangle the city in this problem.
“I know that I am having to be extremely diligent about keeping my own professional ethics in good order each time Davis attempts to influence me with his own ethics breaches.”
Reached this week, Davis was adamant that he had not participated in any votes that involved a conflict of interest. He said he had also asked Bob Blackmore, the attorney for Canby Fire District, to review the documents in question, with his opinion being that Davis’ behavior was neither legally nor ethically in question.
“It is my legal opinion that there is no liability exposure for Canby Fire arising from your actions as an elected member of the Canby City Council,” Blackmore wrote to Davis.
“It is appropriate for any elected official to have a constituency, and by virtue of your position as fire chief, it is reasonable to assume that the relationship of the city to the provision of fire and emergency services would be of interest.”
Blackmore said his only concern would be if the Canby Fire District instructed Davis to vote in certain ways on city business and provided a quid pro quo that personally benefited him.
“I know that is not happening and will not happen,” Blackmore continued. “Regarding you personally, I urge you to consider whether votes that affect Canby Fire raise either a potential conflict of interest or an actual conflict, and to act accordingly.
“That does not mean that you cannot vote if there is a potential conflict, you just need to declare the conflict and establish that you do not believe it creates an impediment to voting. This also clarifies the actions of Canby Fire and establishes that there is no conflict of interest.”
Despite that opinion, Davis told the Current that, out of an abundance of caution, when and if a vote came before him that involved the Canby Fire District, he does plan to abstain as long as he was employed by the agency.
“I’d represent the issue, say at a work session or something like that, but when the time came to vote on it, I would abstain as long as I’m the fire chief,” he said.
However, he added, that would change after his retirement, which is planned for this summer.
“Once I’m not the fire chief, I’m a private citizen,” he said.
In his emails to elected officials, Archer wrote that he also shares some of Lindsay’s concerns regarding the February 15 executive session.
“Besides the legal concern about violation of public meeting law, I think the council in the course of the improper executive session violated the rights of multiple city employees, including me,” Archer said.
“Though I was invited to attend the executive session, I was not provided an opportunity to know the purpose and content of it, which at least in part was to give me a negative performance review and threaten discipline.”
Archer said he has enjoyed a good reputation and strong relationships with city councilors, staff and partnering organizations since his hire by the City of Canby in October 2020.
“In my nearly two and a half years with Canby, I have received generally and almost entirely positive formal performance evaluations and feedback, and formal support to administer the city, further substantiated by performance-based merit increases in my compensation,” he said.
“It has only been in the recent two months or so that my direction and leadership has been questioned by some of the council, seemingly without regard to my past positive performance record.”
One of the few criticisms came, surprisingly, in the public portion of the February 15 meeting, before the executive session.
During public comment, Spencer Polack, a city public works lead and newly elected president of the Canby chapter of the American Federation of State, County and Municipal Employees, or AFSCME, read a statement alleging several failings on the part of city administrators — without going into specifics.
“Several departments have struggled with managerial support dealing with specific managers’ behavior, causing physical and emotional stress to staff,” Polack said. “We have tried to go through the proper channels to resolve these issues.
“When bringing these concerns forward, there is often little to no resolution for those city employees involved. Due to the lack of action from our administration, it leaves us with no other option but to come here before you tonight to ask for help in resolving these matters.”
Approximately 20 other AFSCME union members, all dressed in matching green shirts, attended Polack’s public statement and applauded his remarks, leaving the meeting shortly thereafter.
Both Lindsay and Archer addressed the incident.
“In his brief statement, Spencer claimed that the union had gone through all existing proper channels and processes prior to coming to a public meeting to offer thisgeneralized complaint,” Lindsay said. “This was a lie. Subsequently, Spencer admitted to Scott Archer that he never even reached out to Scott nor anyone else.
“[T]he fact of the matter is that of their two basic issues, the actual disciplinary processes under protest were currently mid-stream (no final actions or decisions have been taken), and it was Spencer that ‘conveniently’ requested to have the matter set over until after February 15.”
Archer echoed these sentiments, noting, “In a subsequent meeting with the AFSCME employee officers, they admitted that I was not fairly provided an opportunity to hear their concerns before they made these statements publicly.”
Both men expressed concerns that an executive session, with a subject-matter notice identical to the one held on February 15, was on the agenda for March 15, and they urged the mayor to consider postponing it until these matters could be further investigated or resolved.
Instead, the entire meeting was canceled, which Mayor Brian Hodson explained was due to the absence of several key staff members, including Lindsay, who wrote that he would be on protected leave for several weeks due to a serious medical condition exacerbated by stress related to this situation.
Archer and other high-ranking city officials were also on leave last week for unspecified periods of time, though the city administrator was still checking and responding to email.
“Nevertheless, even with these concerns, I still am steadfast in my commitment and professionalism in service to Canby in my role as city administrator,” Archer wrote. “I intend to continue doing my job well.
“I will continue working on addressing and finding resolution as quickly as possible to the complaints brought to my attention about staff concerns. I want to do everything in my power to create a work environment where our staff feel heard and appreciated.”
Hodson told the Current this week that he and the council have wanted to be respectful of staff’s needs. He declined to comment on the specifics of Lindsay’s letter.
“The council will convene soon, and we’ll figure out what legal representation we need to line up so the city can continue to move forward,” Hodson said. “We have some contracts and some important ordinances that need to be considered. Our goal has always been to work with staff to move things forward for the city.”
He also praised city staff for their service to the community.
“I know, when there are leadership positions that are out, it can be a challenge,” he said. “We have a lot of really great staff at City Hall and in public works and other departments that are stepping up, and I really do appreciate that they are keeping the City of Canby moving.”
In his letter, Lindsay encouraged the mayor and council to seek additional counsel to advise the city while he is out of the office, and to handle legal matters that involve himself and his employment, something Archer also recommended.
“Because it is conflicting, I cannot advise you how to proceed as to my own complaints of violation of rights and contract,” Lindsay wrote. He suggested the Portland firm of Beery, Elsner & Hammond, which the city already has under contract for Urban Renewal Agency matters.
The Oregon Government Ethics Commission is currently in the preliminary stages of investigating possible public meetings law violations related to the February 15 session, with the agency confirming this week that it had received two complaints about the meeting.
In accordance with state policy, the complaints were filed by councilors Chris Bangs and Jason Padden, who self-reported their own involvement in the possible violation.
“When the Oregon Government Ethics Commission receives a complaint alleging a possible executive session violation, the commission will open preliminary reviews on each member of the governing body who participated in the executive session at issue,” Compliance and Education Coordinator Susan Myers wrote.
“Accordingly, we have opened preliminary review cases on all seven members of the City Council.”
Cases are initially opened in preliminary review, which is a 60-day period where the investigator gathers the information from the public officials involved and any other available sources and drafts a report recommending either that the matter be dismissed or that a full investigation be opened.
