Are meetings of Oregon's bar disciplinary screening panel (the SPRB) open to the public under the Oregon Public Meetings Law?

Plain-English summary

The State Professional Responsibility Board (SPRB) is the Oregon State Bar's screening panel for attorney discipline. It reviews complaints against attorneys and decides whether to file formal charges before a disciplinary panel. The Government Standards and Practices Commission asked whether SPRB meetings were open to the public under Oregon's Public Meetings Law.

Chief Counsel Donald Arnold concluded that the meetings were exempt as "judicial proceedings" under ORS 192.690(1). The Bar is part of the judicial branch (ORS 9.010). Attorney discipline is inherently a judicial function: the Supreme Court has called it "an integral part of the functioning of the judicial branch of government" (Ramstead v. Morgan, 1959). The SPRB sits within that process, screens complaints for adjudicatory action, and its work can ultimately lead to a Supreme Court disbarment order. That fits the plain meaning of "judicial proceedings." The opinion also rejected the contested-case exemption as inapplicable, since the SPRB doesn't hold contested case hearings under the APA.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What's the difference between the SPRB and the Disciplinary Board?
A: The SPRB screens; the Disciplinary Board adjudicates. The SPRB looks at a complaint and decides whether the Bar should file formal charges. If charges are filed, a three-member trial panel of the Disciplinary Board holds the hearing and issues a written decision, which is then reviewed by the Oregon Supreme Court.

Q: Why isn't the Bar generally exempt from the Public Meetings Law?
A: ORS 9.010(1) says the Bar is subject to the Public Meetings Law. The exemption for SPRB meetings comes from the more specific ORS 192.690(1) carve-out for "judicial proceedings," which the AG interprets to encompass adjudicatory work within the judicial branch.

Q: What about the contested-case exemption in ORS 192.690(1)?
A: That exemption covers "state agencies conducting hearings on contested cases in accordance with the provisions of ORS 183.310 to 183.550." The Bar isn't subject to ORS chapter 183 procedures; it follows rules of procedure approved by the Supreme Court. And the SPRB doesn't hold formal hearings on the merits at all. So this exemption doesn't apply.

Q: Don't Oregon courts construe public-meetings exemptions narrowly?
A: Yes (Oregonian Publishing Co. v. Board of Parole). The AG acknowledged that and still concluded the judicial-proceedings exemption applied. The legislative history showed that the exemption was meant to cover juvenile hearings, grand jury hearings, and appellate court deliberations, but not purely administrative meetings within the judicial branch. SPRB meetings are adjudicatory, not administrative.

Q: What's the practical effect for someone interested in a discipline case?
A: SPRB meetings stay closed. The formal trial panel hearings before the Disciplinary Board are different, those are public proceedings, and the eventual Supreme Court disposition is public.

Background and statutory framework

ORS 192.610 to 192.690 is the Oregon Public Meetings Law. It requires open meetings of "governing bodies" of "public bodies" (ORS 192.610(3), (4); ORS 192.630). ORS 192.690 lists categories that are entirely exempt: Board of Parole and Post-Prison Supervision deliberations, Psychiatric Security Review Board deliberations, contested-case agencies, mediation, "any judicial proceeding," and a few others.

The Oregon State Bar is "a public corporation and an instrumentality of the Judicial Department" (ORS 9.010). Attorney discipline is run through Bar rules adopted by the Board of Governors and approved by the Supreme Court. The SPRB is created under ORS 9.532. The Disciplinary Board hears formal charges (ORS 9.534, 9.536). Supreme Court review is automatic for disbarment decisions.

The opinion applied the PGE v. BOLI text-context-history method. Text and context placed SPRB meetings within "judicial proceedings" because they are adjudicatory work within the judicial branch tied to a process that can result in a judicial decision. Two prior AG opinions (1980 and 1981) had read "judicial proceedings" narrowly, excluding county-court quasi-judicial hearings and an indigent-defense advisory committee. The opinion distinguished those: county courts deal with administrative or non-adjudicatory work, and indigent-defense advisory committees don't drive adjudications. The SPRB does.

Citations and references

Statutes:

• ORS 192.610 to 192.690, Public Meetings Law
• ORS 192.690(1), exemptions including "any judicial proceeding"
• ORS 9.010, ORS 9.529, ORS 9.532, ORS 9.534, ORS 9.536, ORS 9.545, Bar and discipline structure

Cases:

• Oregon State Bar v. Wright, 280 Or 693, 573 P2d 283 (1978), Bar as judicial-branch instrumentality
• Ramstead v. Morgan, 219 Or 383, 347 P2d 594 (1959), discipline as judicial-branch process
• Oregonian Publishing Co. v. Board of Parole, 95 Or App 501, 769 P2d 795 (1989), narrow construction of exemptions
• PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), interpretive method
• Jones v. Hoss, 132 Or 175, 285 P 205 (1930), plain-meaning rule

Source

• Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/1997/08/op1997-4.pdf

Original opinion text

August 13, 1997
L. Patrick Hearn
Executive Director
Oregon Government Standards and Practices Commission
100 High Street SE, Suite 220
Salem, OR 97310
Re: Opinion Request OP-1997-4
Dear Mr. Hearn:
You ask whether meetings of the State Professional Responsibility Board (SPRB) are exempt from the
requirements of the Oregon Public Meetings Law, ORS 192.610 to 192.690. We conclude that meetings
of the SPRB are exempt from the Public Meetings Law.
Discussion
The Public Meetings Law requires meetings of a "governing body" of a "public body"(1) to be open to the
public, unless the subject of the meeting is one for which the law authorizes an executive session. ORS
192.630, 192.660. The law also requires governing bodies to provide public notice and to keep minutes
of their meetings, irrespective of whether the meeting is an open meeting or an executive session. ORS
192.640, 192.650. However, certain proceedings are exempt entirely from the Public Meetings Law.
ORS 192.690.

1. The State Professional Responsibility Board
   The SPRB is part of the attorney disciplinary process of the Oregon State Bar (bar). The bar is "a public
   corporation and an instrumentality of the Judicial Department of the government of the State of Oregon."
   ORS 9.010. The Supreme Court has described the bar's status:
   Moreover, the Oregon State Bar does not operate as an independent licensing authority, but
   as an instrumentality of the Judicial Department of the government of the State of Oregon
   and (sic) its members are not only officers of the courts, but are subject to discipline by the
   courts for misconduct. (See ORS 9.010 and 9.460 to .580, inclusive.)
   Oregon State Bar v. Wright, 280 Or 693, 697-698, 573 P2d 283 (1978).
   The bar is generally subject to the Oregon Public Meetings Law. ORS 9.010(1). The Board of Governors
   of the bar is directed to create a state professional responsibility board "to review the conduct of
   attorneys and to institute disciplinary proceedings against members of the bar. The composition and
   authority of the state professional responsibility board shall be as provided in the rules of procedure."
   ORS 9.532(2).
   Attorney disciplinary proceedings are neither civil nor criminal proceedings and are within the inherent
   power of the Supreme Court to control. ORS 9.529. The SPRB does not hear formal charges against
   attorneys, but determines as a preliminary matter whether particular complaints should be pursued. A
   disciplinary board or panel hears the formal charges and files its written decisions on disciplinary action
   with the Supreme Court. ORS 9.534, 9.536.
   The SPRB is a governing body of a public body in that the SPRB is a state board with authority to make
   decisions on attorney disciplinary complaints. ORS 9.532. Therefore, its meetings are subject to the
   Public Meetings Law unless exempt under ORS 192.690.
2. Application of the Oregon Public Meetings Law to SPRB
   a. Text and Context of ORS 192.690
   The state's policy on public meetings is stated in ORS 192.620, as follows:
   The Oregon form of government requires an informed public aware of the deliberations and
   decisions of governing bodies and the information upon which such decisions were made. It
   is the intent of ORS 192.610 to 192.690 that decisions of governing bodies be arrived at
   openly.
   Consistent with this expressed policy, the Oregon courts interpret coverage of the Public Meetings Law
   broadly and its exemptions narrowly. Oregonian Publishing Co. v. Board of Parole, 95 Or App 501,
   769 P2d 795 (1989).
   To determine the scope of the exemptions in ORS 192.690, we look first to the terms of the statute and
   its context. PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). ORS 192.690
   provides in relevant part:
   (1) ORS 192.610 to 192.690 shall not apply to the deliberations of the State Board of
   Parole and Post-Prison Supervision, the Psychiatric Security Review Board, of state
   agencies conducting hearings on contested cases in accordance with the provisions of
   ORS 183.310 to 183.550, the review by the Workers' Compensation Board or the
   Employment Appeals Board of similar hearings on contested cases, meetings of the state
   lawyers assistance committees, the local lawyers assistance committees in accordance with
   the provisions of ORS 9.545, the multidisciplinary teams required to review child abuse and
   neglect fatalities in accordance with the provisions of ORS 418.747, the peer review
   committees in accordance with the provisions of ORS 441.055, mediation conducted under
   sections 2 to 10, chapter 967, Oregon Laws 1989, any judicial proceeding or to meetings of
   the Oregon Health Sciences University Board of Directors or its designated committee
   regarding candidates for the position of university president.
   (Emphasis added.)
   The exemption in ORS 192.690(1) for "deliberations of state agencies conducting hearings on contested
   cases in accordance with the provisions of ORS 183.310 to 183.550" does not apply to meetings of
   SPRB. SPRB's sole role in the disciplinary process is to decide whether charges should be filed, but
   SPRB "does not decide the validity of those charges as a judicial body." OSB Desk Reference § 9.7
   (1990). Moreover, the bar, and therefore SPRB as well, is not subject to ORS 183.310 to 183.550, but to
   the rules of procedure adopted by the Board of Governors of the Bar and approved by the Supreme
   Court. ORS 9.005(8), 9.010(1), 9.532.
   We next consider whether SPRB meetings come within the exemption in ORS 192.690(1) for "judicial
   proceedings." Because the term "judicial proceedings" is not defined in the Public Meetings Law and has
   no precise technical or legal meaning, we look to its plain and ordinary meaning. See Jones v. Hoss, 132
   Or 175, 285 P 205 (1930) and 46 Op Atty Gen 388 (1990) for other citations supporting this principle.
   We look to standard dictionaries for guidance as to the common meaning of words. Webster's Third New
   International Dictionary (unabridged 1993), at 1223, defines "judicial" as "of, relating to, or concerned
   with a judgment, the function of judging, the administration of justice, or the judiciary," and
   "proceeding", at 1807, as "the course of procedure in a judicial action." The "judiciary" is defined as:
   1a: a system of courts of law in an area * * *
   2: a branch of government in which judicial power is vested * * * .
   Id. at 1223. These definitions are broad enough to encompass the meetings of the SPRB as relating to the
   function within the judicial branch of judging attorney conduct for purposes of administering discipline.
   The functions of the SPRB are consistent with the common understanding of the term "judicial
   proceeding". The SPRB is within the judicial branch, it has a role in the adjudicatory process of attorney
   discipline, and the decisions of the SPRB potentially culminate in a judicial decision by the Oregon
   Supreme Court. In Ramstead v. Morgan, 219 Or 383, 347 P2d 594 (1959), the Supreme Court
   considered the nature of attorney disciplinary proceedings to determine whether a complaint against an
   attorney was absolutely privileged against an action for libel. The court held that a statute limiting the
   privilege was unconstitutional as an infringement on the authority of the court.
   Our conclusion rests upon the basic premise that disciplinary proceedings are carried on as
   one of the processes of this court. It makes no difference whether the process is
   denominated judicial or quasi-judicial; it is an integral part of the functioning of the judicial
   branch of government and the process includes the filing of an informal complaint by one
   who wishes to charge an attorney with unprofessional conduct.
   219 Or at 400.
   Although this exemption has not been discussed in any appellate court decisions, it is construed by two
   Attorney General opinions. In 40 Op Atty Gen 388 (1980), we were asked whether deliberations of a
   county court (board of county commissioners) following a quasi-judicial hearing were excluded from the
   Public Meetings Law by ORS 192.690. After reviewing opinions from other states, we concluded that the
   exemption did not apply. We stated:
   Again, we believe if there is an ambiguity, it should be resolved in favor of open meetings.
   This appears to be in accord with the result reached by most courts considering whether a
   "judicial proceeding" exclusion should extend to quasi-judicial actions. Accordingly, we
   conclude that a quasi-judicial hearing of a governing body is not a "judicial proceeding" for
   purposes of the exception provided by ORS 192.690(1).
   40 Op Atty Gen at 391.
   The second opinion addressed whether a judicial district's advisory committee created by court rule must
   comply with the Public Meetings Law. The committee was formed to recommend attorneys to be
   appointed by the court to represent indigent defendants. 41 Op Atty Gen 417 (1981). Based upon our
   review of the legislative history of the "judicial proceedings" exemption, we stated:
   The term "judicial proceedings" was intended to grant only a limited exemption to the
   courts, while engaged in such judicial proceedings as juvenile hearings, grand jury hearings
   and appellate court deliberations; but not to exempt other meetings within the judicial
   branch dealing with administrative or other nonadjudicative matters. We therefore conclude
   that meetings of the Committee fall within the scope of the Public Meetings Law.

Id. at 419 (citations omitted).
We also consider the legislative history of ORS 192.690 as an aid to our understanding of the scope of
the term "judicial proceeding." The list of exempt activities in ORS 192.690 has changed since this
statute's enactment in 1973. The original 1973 legislation, which adopted the first comprehensive public
meetings law, provided as follows:
The provisions of this Act shall not apply to the deliberations of the State Board of Parole
and Probation, the State Banking Board, the Commission on Judicial Fitness, of state
agencies conducting hearings on contested cases in accordance with the provisions of ORS
chapter 183, the review by the Workmen's Compensation Board of similar hearings on
contested cases, or to any judicial proceeding.
Oregon Laws 1973, ch 172, § 9.
The original reference to deliberations of the Commission on Judicial Fitness (the commission), together
with the exemption for judicial proceedings, appeared at first to be significant as guidance on the scope
of the "judicial proceedings" exemption. The Commission on Judicial Fitness also performs an
adjudicatory function for the Supreme Court and is part of the judicial branch of government. Or Const
Art VII (Am), § 8; ORS 1.410 to 1.480. Arguably, if the legislature had believed that the commission's
work was a "judicial proceeding," the legislature would not have needed to include a specific exemption
for the commission. However, upon closer analysis we do not find the specific inclusion dispositive.
In 1973, when the Commission on Judicial Fitness was specifically included in ORS 192.690,
proceedings of the commission were already closed to the public, except for hearings held publicly upon
the request of the affected judge. ORS 1.420 (1973). In fact, in a statute concerning the commission's
records, the legislature referred to the records and testimony at hearings as privileged, "except in judicial
proceedings directly connected with the administration of ORS 1.410 to 1.480". ORS 1.440 (1973). This
reference to judicial proceedings in connection with the function of the commission implies that the
legislature considered their proceedings to be judicial proceedings.
In 1981, the Legislative Assembly removed the exemption for the Commission on Judicial Fitness from
ORS 192.690. Oregon Laws 1981, ch 354, § 3. The purpose of the 1981 legislation was to make the
hearings of the commission public. Or Laws 1981, ch 354, § 1. However, the 1981 amendments did not
address proceedings of the commission other than hearings, and there is nothing in the legislation that
directed the commission to hold public meetings for purposes other than hearings. In fact, it is clear that
the commission could not meet publicly, because of specific direction that members of the commission
and staff may not disclose any investigation, testimony or documents which are not introduced at a
public hearing. Or Laws 1981, ch 354, § 2. We conclude that the specific inclusion of the Judicial Fitness
Commission in the original 1973 legislation (and subsequent deletion) is not dispositive regarding the
scope of the term "judicial proceedings" for purposes of bar disciplinary proceedings or the Public
Meetings Law.(2)
From a review of the text and context of ORS 192.690, we conclude that meetings of the SPRB come
within the Public Meetings Law exemption for judicial proceedings. Although we are required to
construe the exemption narrowly, we find that the most persuasive interpretation of the term "judicial
proceedings" encompasses proceedings initiated within the judicial branch which are adjudicatory in
nature, and which are part of a process which ultimately may result in a judicial decision. The SPRB
meetings meet those criteria and are therefore exempt from the Public Meetings Law.
Sincerely,
Donald C. Arnold
Chief Counsel
General Counsel Division

1. "Governing body" is defined to mean "the members of any public body * * * with the authority to make decisions for or recommendations to a public body on policy or administration." ORS 192.610(3). A "public body is defined as "the state * * * or any board, department, commission, council, bureau, committee or subcommittee or advisory group or any other agency thereof." ORS 192.610(4).

2. In 1983, the Legislature created state lawyers assistance committees and local lawyers assistance committees. Oregon Laws 1983, ch 617. The legislation made meetings of these committees specifically exempt from the Public Meetings Law both by specific direction in the statute creating the committees and by addition of the committees to the exempted agencies in ORS 192.690. Or Laws 1973, ch 617, §§ 2, 4.
   Because the role of these committees is limited to "supervision and assistance to those lawyers whose performance or conduct may impair their ability to practice law or professional competence", their function is not adjudicatory, and the assistance committees would not qualify for an exemption as judicial proceedings. ORS 9.545. The specific reference to these committees in ORS 192.690 does not conflict with our conclusion regarding the SPRB.