IN THE CIRCUIT COURT OF THE STATE OF OREGON

// ::0 PM CV 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH OREGON PUBLIC BROADCASTING, a public benefit corporation, v. Plaintiff, PORTLAND PUBLIC SCHOOLS, a public entity, Defendant. Case No. CV DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ORAL ARGUMENT REQUESTED Pro Tem Judge Bruce C. Hamlin Hearing: October 0,, 1:0 p.m. Room No. TBD NO FILING FEE PER ORS.0 1 UTCR.00 STATEMENT Defendant, Portland Public Schools (the "School District"), requests oral argument. The School District estimates that oral argument will take 0 minutes, and it requests official court reporting services. MOTION In accordance with ORCP B, the School District moves the Court for an order granting summary judgment in its favor and dismissing plaintiff Oregon Public Broadcasting's ("OPB") complaint. In support of this motion, the School District relies on the points and authorities below, the supporting declaration of School District Superintendent Carole Smith and the accompanying exhibits, and the records and files in this matter. 1 Defendant is a public entity. Under ORS.0, public entities are not required to pay in advance any fee taxable as costs and disbursements in civil actions. Page 1 - T: (0) - $$ F: (0) -0

POINTS AND AUTHORITIES A. INTRODUCTION OPB's lawsuit against the School District claims that by closing a meeting to the public and media, the Superintendent's Advisory Committee on Enrollment and Transfer ("SACET") violated Oregon's Public Meetings Law, ORS.01 et seq., and SACET's selfimposed policy of holding open meetings. Neither claim gives rise to a claim for relief. SACET is a purely advisory committee to Superintendent Smith on complex issues the School District faces, including the policies that govern the enrollment and transfer of its nearly 0,000 students between and among neighborhood schools. Although SACET chooses to open the majority of its meetings to the public, SACET is not a "governing body of a public body," as is required for the Public Meetings Law to apply and mandate that it do so. Because an action under the Public Meetings Law is the exclusive remedy under the statute, this court lacks jurisdiction to render a declaratory judgment under ORS.0. Regardless, OPB has failed to articulate any source for its alleged right to enforce SACET's self-imposed guideline through a declaratory judgment action. The alleged violation of an advisory committee's voluntary guideline does not create a duty to third parties like OPB. The School District is entitled to summary judgment on both of OPB's claims. B. FACTUAL BACKGROUND School District Superintendent Carole Smith created SACET in 0 to serve as a volunteer advisory body to the Superintendent. Declaration of Carole Smith in Support of ("Smith Decl."),. SACET is comprised of current and former School District parents and community members who represent the demographics of the students served by the School District. Id. The purpose of SACET's work is threefold: (1) to advise the Superintendent on enrollment and transfer issues as she seeks to improve equity, program access and educational Page - T: (0) - $$ F: (0) -0

achievement for all students; () to offer informed perspectives on school and district-wide impact of enrollment and transfer issues, based on shared information about enrollment and transfer policies and practices; and () to identify issues of concern and respond to the priorities determined by the Superintendent. Smith Decl.. SACET is a critical resource for Superintendent Smith as she considers changes to the enrollment and transfer system to improve equity, access, and educational achievement for students. Smith Decl.. Since its inception in 0, SACET has provided the Superintendent with recommendations through a series of reports on neighborhood-to-neighborhood transfers, entrance into focus schools, and revisions to the enrollment and transfer policies and practices. Id. SACET is a volunteer committee. Smith Decl.. Its members devote significant time and effort towards their charge, including thoroughly analyzing current policies, studying the impact of potential policy changes, and issuing reports and recommendations. Id. SACET does not have the power to make a final decision on any district policy or issue. Smith Decl.. Instead, SACET's recommendations to the Superintendent are merely proposals. The Superintendent has the authority to reject, modify, or accept any of SACET's recommendations before making her recommendations to the School Board, and she has used her authority to modify or entirely reject SACET's recommendations on several occasions. Id. For example, in March, the School Board articulated the principles of High School System Design and directed Superintendent Smith to provide a plan of action to deliver on those principles. Smith Decl.. Smith asked SACET to provide her input on designing and initiating specific neighborhood to neighborhood enrollment and transfer changes that would promote stable and balanced enrollment parity across community high schools. Id. SACET s initial report on neighborhood-to-neighborhood transfers included a recommendation that the district add a community liaison position to each neighborhood high school for the - school year. Smith Decl. ; Ex. 1. On April,, Superintendent Smith conveyed her action plan for High School System Design to the School Board. Smith's Page - T: (0) - $$ F: (0) -0

proposed plan to the School Board did not include SACET's recommendation to add a community liaison position. Smith Decl. ; Ex.. In March, Superintendent Smith directed SACET to make proposals to align district enrollment and transfer policies with the School District's Racial Educational Equity Policy and to participate in a district-wide boundary review process. Smith Decl.. After eighteen months of investigation and deliberation, SACET released two reports the Superintendent: a June preliminary report that outlined the historical context and rationale for proposing changes, and an October report with final recommendations. Id. On November,, SACET members presented their final recommendations to the Superintendent. Smith Decl. ; Ex.. On November,, Superintendent Smith provided the School Board with a plan for aligning the School District's enrollment and transfer system across all grades and school configurations with the Racial Educational Equity Policy. Smith Decl.. Although her proposal to change the Enrollment and Transfer Policy incorporated most of SACET's recommendations, Superintendent Smith either rejected or modified many of SACET's recommendations. Id. For example, Part of SACET Recommendation.1 calls for focus option lottery slots to be evenly distributed by high school region. Id. Superintendent Smith informed SACET that she did not agree with that recommendation and that she would not be making that recommendation to the School Board. Id. Further, although SACET recommended ending the lottery mechanism for transfers into neighborhood schools for grades K-, Superintendent Smith believed that the lottery mechanism should be ended for high school grades as well. Id. Superintendent Smith also modified SACET's recommendation by including two alternative schools, ACCESS and Metropolitan Learning Center, in the proposed focus option review process. Smith Decl. ; Ex.. Page - T: (0) - $$ F: (0) -0

As reflected by these few examples, Superintendent Smith has the authority to modify or reject a SACET recommendation made to her before then making her proposals to the School Board. Smith Decl.. SACET does not make recommendations to the School Board. B. ARGUMENT 1. SACET is Not a Governing Body Subject to The Requirements of The Public Meetings Law Because it Makes Recommendations to an Individual Official. Under Oregon's Public Meetings Law, "[a]ll meetings of the governing body of a public body shall be open to the public and all persons shall be permitted to attend any meeting except as otherwise provided by ORS. to.0." ORS.0. The Public Meetings Law imposes this open meeting requirement only on the "governing body" of a "public body." Id. For purposes of the Public Meetings Law, a governing body is defined as: "* * * the members of any public body which consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration." ORS.() (emphasis added). A "public body" is defined as: "* * * the state, any regional council, county, city or district, or any municipal or public corporation, or any board, department, commission, council, bureau, committee or subcommittee or advisory group or any other agency thereof." ORS.(). SACET is not a governing body of a public body subject to the Public Meetings Law because (1) it is not vested with authority to make decisions for a public body and () the Superintendent, to whom it makes its recommendations, is an individual officer and not a "public body" under ORS.(). First, SACET does not possess the authority to make decisions for a public body on policy or administration. Instead, its role is confined to: (1) advising the Superintendent on enrollment and transfer issues as he or she seeks to improve equity, program access and educational achievement for all students; () offering informed perspectives on school districtwide impact of enrollment and transfer issues, based on shared information about enrollment and Page - T: (0) - $$ F: (0) -0

transfer policies and practices; and () identifying issues of concern and respond to the priorities determined by the Superintendent. Smith Decl.. SACET has no other function beyond acting as an advisor to the Superintendent. Second, the Superintendent, to whom SACET makes recommendations on School District policy, is an individual official not a public body. Smith Decl. -,. ORS., which defines the term "public body" under the Public Meetings Law, does not include an individual official. ORS.() ("Public body means the state, any regional council, county, city or district, or any municipal or public corporation, or any board, department, commission, council, bureau, committee or subcommittee or advisory group or any other agency thereof."); compare ORS.() (for purposes of the Public Records Law, the definition of "public body" explicitly includes an individual state official.) In addition to the plain language of the statute, the Oregon Attorney General has interpreted the term "public body" to exclude individual officials such as the Superintendent. Oregon Attorney General's Public Records and Meetings Manual () at ("We do not construe 'public body' to include an individual official."); Op Atty Gen, (1) (concluding that the Governor, as an individual official, is "not a public body as that term is used in the Public Meetings Law," and therefore "the mere authority to make recommendations to the Governor would not make the panel a governing body.") SACET, in name, purpose, and practice, is an advisory committee to the Superintendent. Superintendent Smith relies on SACET to obtain information and advice as she formulates her recommendations to the School Board on difficult issues facing the district surrounding enrollment and transfer. Smith Decl.. SACET's volunteer members devote significant time and effort towards their charge, including analyzing current policies, studying the impact of possible changes, and delivering reports and recommendations to the Superintendent. Smith Decl.. SACET's recommendations to Superintendent Smith are only proposals. Smith Decl.. The Superintendent has the authority to reject, modify, or accept Page - T: (0) - $$ F: (0) -0

any of SACET's recommendations before making her own proposal to the Portland School Board and she has exercised this authority to modify or entirely reject SACET's recommendations on several occasions. Smith Decl. -; Ex. 1-. Because SACET is not a "governing body" of a "public body," the Public Meetings Law does not apply. Sw. Oregon Pub. Co., Inc. v. Sw. Oregon Cmty. Coll. Dist., Or App,, Pd, 1 () ("A retained labor negotiator is neither a member of a public body nor a governing body consequently the Public Meetings Law has no applicability to negotiations conducted by a retained negotiator.") OPB carries the burden under the Public Meetings Law to set forth facts that establish a prima facie violation of the statute. ORS. ( In any suit commenced under ORS.0(1), the plaintiff shall be required to present prima facie evidence of a violation of ORS. to.0 before the governing body shall be required to prove that its acts in deliberating toward a decision complied with the law. ) Because SACET is not subject to the Public Meetings Law, OPB cannot meet its burden and the School District is entitled to summary judgment.. OPB Cannot Maintain a Claim under the Declaratory Judgment Act Based on SACET's Alleged Violation of its Internal Operating Policies. As its first claim for relief, OPB alleges that it is entitled to a declaratory judgment because SACET did not abide by its internal policies to hold an open meeting. This is not a legally cognizable claim. The Public Meetings Law provides the exclusive remedy to compel a public entity to conduct open meetings. OPB cannot make an end-run around the statute by seeking declaratory relief to force a volunteer committee to comply with its selfimposed rule. Oregon's Public Meetings Law is clear that the remedial provisions of ORS.0 are exclusive. Harris v. Nordquist, Or App,, 1 Pd (); ORS.0 () ("The provisions of this section shall be the exclusive remedy for an alleged violation of ORS. to.0.") OPB is not entitled to avoid the structures of the Public Page - T: (0) - $$ F: (0) -0

Meetings Law by way of asserting a claim under the Declaratory Judgment Act. In fact, because the remedy under the Public Meetings Law is exclusive, this court lacks jurisdiction to render a declaratory judgment on this claim. Longstreet v. Liberty Nw. Ins. Corp., Or App, 00-01, Pd, () ( [A]lthough a trial court has broad power to provide declaratory relief, it lacks subject matter jurisdiction under ORS.0 if some other exclusive remedy exists. ) (internal and external quotations omitted)(emphasis in original); McBeth v. Elliott, Or App,, 01 Pd 1, () (affirming trial court's grant of summary judgment to defendants because the court had no jurisdiction to render a declaratory judgment where other statutory remedies were exclusive). If OPB contends that its declaratory judgment claim is something other than attempt to enforce the Public Meetings Law, then OPB's claim is nothing more than an assertion that SACET failed to follow its internal policies. But OPB has no legal right or bases on which to bring such a claim. See, e.g., ORS.0 (identifying sources for legal rights under the Declaratory Judgments Act, which include interests under a deed, will, written contract, constitution, statute, municipal charter, or ordinance). Such a claim is not cognizable under the Declaratory Judgment Act. ORS.0 provides that courts "shall have power to declare rights, status and other legal relations * * *." (Emphasis added). "In order for a court to entertain an action for declaratory relief under ORS chapter, the complaint must present a justiciable controversy that is, an actual and substantial controversy between parties having adverse legal interests that results in specific relief through a binding decree." Oregon AFSCME (Am. Fed'n of State, Cnty. & Mun. Employees) Council v. State of Or., Dep't of Admin. Servs., 0 Or App, 1, Pd, () (citing Brown v. Oregon State Bar, Or,, Pd ().) OPB cannot demonstrate that there is a justiciable controversy or that is entitled to declaratory judgment relief because it "can point to no existing state of facts which give[s it] present legal rights against the defendant, or an existing state of facts which threatens [its] legal rights." Page - T: (0) - $$ F: (0) -0

Cummings Const. Co. v. Sch. Dist. No., Coos Cnty., Or, 0, 0 Pd 0, (). SACET's alleged violation of its internal policies does not create a duty to third parties like OPB. In analogous contexts, courts across the country have held that a defendant's deviation from an internal policy does not create an enforceable duty to or right of third parties. See, e.g., Jacobs v. Clark Cnty. Sch. Dist., Fd, 1 (th Cir 0) ("Plaintiffs provide no authority for their suggestion that a federal due process claim lies whenever a local entity deviates from its own procedures in enacting a local regulation."); Hudson v. Wal Mart Stores E., L.P., No. 0 00, 0 WL 0, at * (WD Va July, 0) ("Violation of company policy does not show a breach in the standard of care."); Boutilier ex rel. Boutilier v. Chrysler Ins. Co., No. 0, 01 WL 0, at *1 (MD Fla Jan 1, 01) ("The mere fact that [the defendant] had an internal corporate policy does not create a legal duty or cause a breach of that duty."); Solis v. Lincoln Electric Co., No 1:0-CV-, 0 WL 00, at * (ND Ohio May, 0) ("Further, internal corporate policies also do not constitute a voluntary undertaking to provide services to others."); Boudreaux v. Swift Transp. Co., 0 Fd, (th Cir 0) ("[A] company's self-imposed policy with regard to inspection, taken alone, does not establish the standard of care that a reasonably prudent operator would follow."); Jacobs Cathey Co. v. Cockrum, SWd, 1- (Tex App ) (contractor's company policy of removing debris left at its work sites by other parties did not create a duty to persons injured by others' debris that the company did not remove); Salazar v. S. Cal. Gas Co., Cal Rptr d, - (Cal App ) (gas company's internal company policy of warning customers that elevating water heaters to at least eighteen inches would reduce the risk of flammable vapors being ignited did not create duty to warn its customer about the hazards of unelevated water heaters). Outside SACET's self-imposed internal policies, OPB has identified no source for its alleged legal right against the School District, and a claim under ORS.0 cannot lie. To determine otherwise is to subject every committee, volunteer group, council, or entity that Page - T: (0) - $$ F: (0) -0

attempts in good faith to promulgate operating procedures, internal policies, or rules for its orderly administration to a lawsuit if it deviates, even slightly, from those voluntarily-enacted rules. Such an outcome not only finds no support in the law but also would run counter to sound public policy by dissuading organizations from enacting internal policies for fear of being subject to lawsuits like this one. CONCLUSION As an advisory body for the Superintendent, SACET is not required to open its meetings to the public. The School District requests this Court to grant its motion for summary judgment. DATED this th day of September,. s/andrea M. Barton Bruce L. Campbell, OSB No. Trial Attorney bruce.campbell@millernash.com Andrea M. Barton, OSB No. 00 andrea.barton@millernash.com 00 U.S. Bancorp Tower 1 S.W. Fifth Avenue Portland, Oregon Telephone: (0) - Facsimile: (0) -0 Attorneys for Defendant Portland Public Schools Page - T: (0) - $$ F: (0) -0

CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Defendant's Motion for Summary Judgment on the attorney or party listed below on the date set forth below by the method(s) indicated: Conventional Paper or E-mail Service, pursuant to ORCP : Duane A. Bosworth DAVIS WRIGHT TREMAINE LLP 00 S.W. Fifth Avenue, Suite 00 Portland, Oregon 1- E-Mail: duanebosworth@dwt.com Attorney for Plaintiff First-class mail, postage prepaid Facsimile, pursuant to ORCP F Hand-delivery Overnight courier, delivery prepaid E-mail, pursuant to ORCP G E-mail copy, as a courtesy only Other: Electronic Service, via OJD efiling (using Odyssey File & Serve), pursuant to UTCR.0: Duane A. Bosworth Attorney for Plaintiff DATED this th day of September,. s/andrea M. Barton Andrea M. Barton, OSB No. 00 Attorney for Defendant Portland Public Schools Page 1 - Certificate of Service T: (0) - $$ F: (0) -0