City Councilors Accused of Violating Public Meetings Law

The saga of a slate of controversial Planning Commission appointments that provoked the ire of some elected officials and residents in Canby took another turn Wednesday with the revelation of a prior conversation between two councilors that may have constituted a violation of Oregon public meetings law.

The original appointment on January 5 elevated Chris Calkins, Dan Ewert and Judi Jarosh to fill three vacancies on the city planning body in a 3-2-1 vote, with councilors David Bajorin, Chris Bangs and Greg Parker in favor, Council President Traci Hensley and councilor Shawn Varwig sharply opposed and Councilor Sarah Spoon abstaining (Spoon and Calkins are married).

Tension arose over the majority’s decision to reject the recommendations by Varwig and Mayor Brian Hodson to instead name Ewert, Matthew Ellison and Michael “Nick” Cousin to the board — an option under the city charter, but one that is rarely exercised.

In the ensuing fallout, Varwig filed a far-reaching public records request seeking email, text and other conversations between the four councilors in the lead-up to the Planning Commission appointments — and also dating back to November 2020. The request cost Varwig, who maintained he was acting as a private citizen and not in his role as an elected official, more than $1,000.

Among the documents uncovered by the request was a Facebook Messenger thread Bajorin turned in, detailing a conversation between Parker and himself on December 30 of last year.

In the seven-page conversation, which Hodson read into the record in its entirety during Wednesday night’s City Council meeting, Parker expounds on the upcoming Planning Commission appointments and several issues he found to be problematic in the recommendation process.

The problem is, he also refers to discussions with two or three other councilors while chatting with Bajorin: several references to separate conversations with Bangs and Varwig, as well as a mention of Spoon’s plans to abstain from the matter.

Oregon law prohibits a quorum of elected officials from discussing or deliberating business when not properly noticed or in view of the public — except in narrow exceptions in which closed sessions are permitted.

It also prohibits, for example, City Councilor A from discussing a pending matter with Councilor B, and then sharing that conversation with Councilor C and so on, which is known as a “serial meeting.”

“I always warn people, don’t have a quorum of you talking at the bar, because if you talk city business, you’ve created a meeting,” City Attorney Joe Lindsay said Wednesday. “Well, you can also create a serial meeting if three of you meet at a bar and then one of those people goes and talk to a fourth one about what you talked about.”

In an email to The Canby Current, Lindsay stressed that he did not necessarily believe the Facebook chat between Parker and Bajorin constituted a serial meeting or that any violation of public meetings law had occurred, but he admitted it was possible a judge might see it that way if the matter were ever taken to court.

“I’ve tried to make it clear on more than one occasion that I wasn’t making an actual, factual, legal determination about whether a serial meeting took place,” he wrote. “I’m not a circuit court judge with this case before them. … There might be explanations that could lead to a different finding of fact about this. A court would rule based on a preponderance of evidence only after hearing such sworn testimony.”

Wednesday night, and in follow-up statements to the Current, neither Hensley nor Varwig had qualms about characterizing the exchange as a public meetings law violation — while also alleging an attempted cover-up.

“I am incredibly disappointed that four of our city councilors would prostitute their integrity to cover up a mistake that they made,” Varwig wrote. “The citizens of Canby deserve better than this but unfortunately, it seems, that we have some representatives who care more about their own political gain than doing the right thing for our citizens.”

“The text exchange provided clearly indicates that a serial meeting occurred, as suspected, prompting the [Freedom of Information Act] request,” Hensley agreed in her statement. “The text exchange also brings question in my mind that we might be seeing another quid pro quo situation similar to what we saw last year.”

But several of the councilors involved denied that their actions amounted to anything unlawful.

“Greg references me, and we were indeed in touch before the January 5 meeting about the Planning Commission appointments,” Bangs admitted in an email. “It also referenced Sarah, which brings the number included to four, which would be a public meeting violation IF it actually included Sarah, which it didn’t.

“Rather, Greg said Sarah is abstaining, but he told me that he got that information from Chris Calkins, not from Sarah. There was also a reference to Shawn Varwig, in which Greg said he has asked Shawn for some information about the appointment process, but Shawn was not included in these discussions.”

Spoon also argued in her statement to the Current that the accusations were overblown.

“As Councilor Bangs stated in the meeting, I was not involved in any deliberations about the appointments, so I couldn’t be a part of a serial meeting,” she said. “I also refrained from all meeting discussion and abstained from the initial vote as well as the vote on March 2.

“As such, there’s really no statement for me to make about the appointment — I had no involvement in the matter.”

In the Messenger thread, Parker goes into detail as to his motivation for seeking to toss out Hodson and Varwig’s recommendations for the Planning Commission — which he admits is an “extraordinary act.”

In short, he claims it was Varwig and Hodson who were attempting to slant the process in their favor, passing over two qualified applicants who filed before the posted deadline of December 14 — and instead recommending two supposedly hand-picked candidates who came in after.

“To my way of thinking, the mayor and Councilor Varwig have abused the process in order to get their own people on,” Parker wrote to Bajorin. “Basically, there were three people who had applied by the deadline, but Varwig postponed the meeting until two more people applied after the deadline, and of course, they were the two people that Brian and Shawn decided to appoint.”

Bangs alleged something similar in his later statement.

“All along, the issue I had was that the process had been violated by extending the deadline to enable Varwig’s preferred candidates to apply,” he wrote. “I remain confident that the two candidates Varwig recommended would also make fine planning commissioners.

“I have not heard anything bad about either, and to the contrary, I have heard good things about both. My whole deal was about process.”

In response this week, Varwig said the canceled interviews had been due to a “clerical error,” not a conspiracy, and that he had not previously met one of the two applicants he ultimately recommended.

“I don’t know Nick Cousins,” he said. “I’m not sure why he put my name as a referral. I do know Matt Ellison, and I did refer him. I think Matt would make a fantastic planning commissioner, and through the interview process, I believe that Nick Cousins would make a fantastic planning commissioner.

“The fact that he put my name as who referred him doesn’t mean I actually referred him. Anybody can put whatever they want to on an application.”

Varwig pushed back against criticism he said he’d received from his colleagues and others in Canby for filing the public records request. He said the Freedom of Information Act is meant to make government more transparent, and that’s all that he was trying to do.

“The fact that people would think that I’m smart enough to come up with something like this is kind of an honor, but it’s not true,” he said. “I’m not smart enough to play political games.”

From the outside, it’s unclear what Hodson or Varwig would have hoped to gain in such a scheme. Heavy on paperwork and light on power and prestige, planning commissioner is a volunteer role that rarely, if ever, is faced with decisions that break down along traditional partisan lines.

Parker could only speculate as to motivation.

“The strangest piece of logic that I can string together is that Brian and Shawn are going through all of this in order to avoid Jason Padden becoming chair,” he wrote.

Padden, who was indeed elected chair at the January Planning Commission meeting in which Calkins, Jarosh and Ewert were sworn in, has sought a City Council seat several times in the past few years, through both election and appointment.

“They don’t want to give him additional credentials so that he could run for either council or mayor,” Parker continued. “Shawn has told me that if Brian doesn’t run, he will run for mayor. I’m just a citizen lawmaker who is trying to make the city better and the last thing I think about is my political future.

“So it’s kind of hard for me to grasp such a seemingly outlandish plot for such small political gain. But as my daddy used to say, don’t try to figure out a crazy person. They’re crazy.”

“Also, can’t fix stupid,” Bajorin replied in the December 30 Facebook Messenger conversation. “And that’s what this is. I don’t know if they thought no one would notice.”

“I know. It feels like The Gang That Couldn’t Shoot Straight,” Parker quipped, to which Bajorin joked, “That’s why I don’t worry about a revolution.”

“Wow,” someone said as Hodson read that part of the transcript Wednesday.

“Yeah,” Hodson agreed. “Please, let me read through this.”

Several commenters spoke at the March 2 meeting, although technical difficulties prevented some of their testimony from being preserved in the recording or livestream broadcast.

Bangs objected, saying Robert’s Rules of Order allow public testimony during specified public comment periods and public hearings — not during routine board business. But Hodson argued the city’s rules are more flexible and said he would allow it.

“The Robert’s Rules-ish in our guidelines don’t exactly match Robert’s Rules,” he said.

“I tell you what, I’m just going to go ahead and talk,” Dawn Depner, who also serves on the Canby School Board, said while the two were debating the issue, with Lindsay, the city attorney, offering advice.

“Hang on, Mrs. Depner,” Hodson said before asking Bangs if he was protesting citizens being allowed to speak on the issue.

“I think I’ve already protested,” replied Bangs. “Are you asking for a different protest?”

“Nope, I just wanted to clarify,” said Hodson. “Thank you. Go ahead, Mrs. Depner.”

Though city codes of conduct require public comment be addressed to the mayor only, and Hodson reminded citizens of this more than once, most failed to follow this.

“I’ve come tonight to speak directly to councilors Parker, Spoon, Bajorin and Bangs,” Depner said. “Regarding the public meetings law violations, you four represent our community, and you’re held to a higher standard. Your constituents rely on you to help make decisions that will enrich our city.”

She admonished Parker for not apologizing for his actions.

“In fact, you stated that you’re just a citizen lawmaker that is trying to make the city better,” she said. “Councilor Parker, how are you doing this by violating public meeting laws?”

“I’m going to ask you one thing: Resign!” Depner demanded when her time was up. Several in attendance at City Hall applauded.

Padden — who had previously criticized the appointment process in which his own application was delayed three months and only appeared to be considered when another candidate, James Hieb, filed for the position — raised these same issues Wednesday night.

The real problem in the latest round of appointments, he said, was that Hodson and Varwig had pushed them forward before a new Planning Commission chair had been elected.

“If you want to really go back to where the problems started, it started … because there was no chair for the planning commission,” he said. “That’s why everything was a hot mess: Because you two didn’t even start to follow the process correctly right in the beginning.”

Larry Boatright, whose former seat on the commission was one of the three filled in the latest round of appointments, castigated the four for actions he said would open the city and planning board up to potential liability and litigation, calling them “two-faced liars” and adding, “The truth hurts.”

“I can’t believe these four councilors here are willing to risk all the decisions made by that Planning Commission since January 5,” he said. “It’s all political. These guys did the same thing that they’re accusing Shawn Varwig of doing. They all got together and decided who they wanted on their Planning Commission and who they didn’t.”

“They’re the ones that are political,” Boatright continued. “They really don’t give a damn about this city. They’re the ones that care about their political stuff. If they cared about this city, they’d clear this ruckus up right now. They’re jeopardizing every vote.”

In her later statement, Hensley chided Bangs for objecting to the public comment at that part of the meeting.

“Public input is paramount to our decision making, and the fact that Councilor Bangs tried fervently to shut down the citizen comments on this issue is an abomination,” she said.

Because of the potential that the four councilors’ actions might be seen as a violation of public records law, Lindsay advised that the council revote on the three Planning Commission appointments.

This would insulate the city, though not necessarily the individual councilors, from any future claims or complaints related to the January 5 vote, Lindsay said.

“It was a matter of, let’s shine some sunshine on this and avail ourselves of this particular statute,” he said. “It puts us on surer footing in that we’ve basically tried to amend this and make it right before possibly ending up in court down the road. A decision is not voidable if redone while in compliance with public meetings law.”

Not addressing the issue would have left open the possibility that a future court decision could nullify all votes by the three commissioners, thus jeopardizing weeks, months or even years of city land use and development decisions.

“The potential of their work being nullified could’ve put several projects and decisions into question for numerous builders and developers,” Lindsay said in an email. “Instead, our council decided on my advice to daylight this potential problem and revote in a duly noticed regular City Council meeting.”

But the course of action did not sit well with Hensley or Varwig, who described the recommendation succinctly as “just do a revote to basically cover our asses.”

“While that is an option available to us, I would like to say that it is my belief that to vote the same way as the meeting in question just to fix a mistake would be a violation of your integrity, and I hope no one would do that to the citizens of Canby,” Varwig said to his colleagues.

“I’m disappointed in our attorney and our city manager for putting us in an even more precarious position when this information is released to the public, which it has been tonight, and the public learns that we covered up a mistake.”

Hensley and Tyler Smith, a Canby attorney and former council member, argued that the four councilors should not be allowed to participate in the revote because of an actual conflict of interest.

Law prohibits elected officials from voting on matters in which they have a direct personal interest and stand to gain or avoid harm. In this case, the argument goes, the four stood to gain the benefit of shielding themselves from potential litigation.

“I believe that four councilors should not have been allowed to participate in the proceedings on March 2 because the vote could potentially avoid legal fees and fines for them,” Hensley said in her statement.

In his email to the Current, Lindsay disagreed, saying that the board’s vote does not necessarily absolve the councilors from individual or personal liability related to their actions — therefore, there would be no conflict of interest.

“You’ve created quite a mess for yourselves with your political strategery,” Smith said Wednesday night. “Congratulations. I hope you’ll think twice next time and just be honest politicians.”

Hensley suggested there was a larger agenda at play.

“I’ve been told by multiple people that one councilor ‘has 27 items to push through in the next 14 months because she has the votes,'” she wrote. “Hearing that concerns me and makes me wonder if more text exchanges like the one brought before us exist regarding other items of city interest.”

She also intimated a link between an earlier council fight last January, in which councilors had deadlocked over electing a new council president, and she and Varwig alleged a “quid pro quo” on Spoon’s part.

“I’m not saying it was [related],” she said Wednesday night. “I’m just saying this feels all too familiar.”

At last week’s meeting and in her later statement, Spoon pushed back on the accusation and decried the lack of decorum that was permitted by both council members and those who spoke during public comment.

“I don’t think it’s appropriate to accuse each other of things completely unrelated to the business in the middle of a city meeting,” she said. “But just to get the record straight, I had a private conversation with someone about things that have been pending for years and years and years.

“I do think there’s support at council to support some of them, but I certainly wouldn’t have said I have the votes to do anything.”

Some of the comments and conduct at the March 2 meeting violated the city’s code of ethics and council rules, she argued, citing specific sections in her statement.

Among those rules, she said, is the stipulation that “any person making personal, impertinent or slanderous remarks, or becoming boisterous shall be barred by the mayor from further attendance at said meeting.”

“As such, I believe Councilor Varwig, Council President Hensley, and multiple members of the public (including a school board member who doesn’t even live in Canby) should have been ejected and barred from the meeting because of their statements and conduct,” she wrote.

While Varwig and Hensley were accusing her and several colleagues of violating public meetings law, Spoon claimed they were disregarding state and city rules currently in effect requiring face masks in indoor public spaces.

“This council has struggled in the past, but despite multiple attempts to move forward and work together as a team by many of us on the council, the behavior of some allowed this meeting to devolve into a complete circus,” Spoon wrote, “It’s embarrassing for the city.

“I’ve been saying for months that I believe the citizens of Canby, myself included, are tired of the perpetual political theater that divides council, divides the community, burns staff time and distracts us from doing good work for the community.”

A frustrated Hodson seemed to express similar sentiments at one point Wednesday night, shortly before the revote was taken.

“There has got to be a way to work our way through this,” he said. “This is not something I signed up for. This has made me incredibly uncomfortable for a couple of months. And frankly, it made me uncomfortable for the past year and a half now.”

Ultimately, the revote was identical to the original vote on January 5: 3-2-1, with Varwig and Hensley opposed and Spoon abstaining.

This is not the first time claims of public meetings law violations have arisen for the Canby City Council.

Last May, Spoon questioned whether Hodson, Hensley, Varwig and then-Councilor Jordan Tibbals had broken the rules when they appeared to admit to having discussed a proposed proclamation opposing Covid-related business closures before it was brought before the council.

At the time, Lindsay opined that the four did not constitute a quorum since the mayor votes only in the case of ties under the city’s system of governance, but admitted it was “close.”

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