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HomeMy WebLinkAbout2013-04-10 Work Session Minutes Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 1 of 16 Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, APRIL 10, 2013 ___________________________ Present were Commissioners Alan Unger, Tammy Baney and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; and, for a portion of the meeting, David Givans, Internal Auditor; Scott Johnson and Lori Hill, Health Services; Mark Pilliod and Chris Bell, County Counsel; Ed Keith and Joe Stutler, Forester; and Sarah Foreman and Mary Anderson of the District Attorney’s Office. Also in attendance were Brad Porterfield, Margie Gregory and Matthew Mohill of the Latino Community Association; Scot Langton, Assessor; Ken Hales, Community Justice; and Kim McNamer, Deschutes County Children’s Foundation. Chair Unger opened the meeting at 2:10 p.m. ___________________________ 1. Update on Latino Community Association. Brad Porterfield said they are moving in the right direction with a lot of positive change since 2007. They have a new vision to establish a physical space, which leads to all else. He said that WIC and the Health Department may be moving out of the Becky Johnson Center and hope it might be available. There is a growing need for services. Most of the Latino population growth has been in Redmond and Bend. This is a national trend. Commissioner Baney asked if the numbers are understated. Mr. Porterfield thinks they are by about 10-15%. There is a need in the community to break through language and culture barriers and deal with educational gaps. Children having to bridge two cultures creates a lot of stress. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 2 of 16 People should thrive and not just survive. The approach needs to be proactive and not reactive. Program structure should be comprehensive and not piecemeal. Long-term goal-setting is better than dealing with one-time services. They also hope to measure the changes in peoples’ lives and not just look at the numbers. They plan to change with the Latino Family Empowerment Center, which looks at more than current needs, but the future as well. This space will allow them more options to work with clients, volunteers, partners and others. They can better deal with people who need to drop in, have work schedules to consider, and childcare and other issues as well. They want to provide more support for workforce development. In short, they want to offer a holistic, longer-term, whole family approach. Mr. Mohill said they are a non-political organization, and look at families and want them to thrive no matter what. This takes the burden off other resources. They need to collaborate to obtain funding, space, letters of support and for offering their services on a contract basis. Mr. Porterfield stated that most of their families are extremely low income and they need to be shown how to thrive. Sometimes culturally, they will not ask for services or help. Outreach is an important component, and a way to make them feel safe. Chair Unger said it is a complex cultural issue. He is impressed with the direction they are going. There is a request for space obviously. Mr. Kropp asked where they see the center being located. Mr. Mohill said that this has been a big topic of conversation. It needs to be suitable for central Oregon but must serve clients from Madras through Bend. They can provide some services remotely, but not all. Transportation is also an issue. Ms. Rozic asked what their needs are. Mr. Porterfield said a house would work, but it needs to be at least 1800 square feet. They need a classroom and room for childcare, a health department space and offices. Commissioner Baney said that this has come a long way. It has not been easy. She asked how the contracts with the County are going. It benefits the County by not having to bring on staff. Mr. Porterfield said he does not know all of the County’s needs, but they are doing some health services and cultural consulting. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 3 of 16 Suicide prevention is being handled through the Children & Families’ Commission, focus groups and the courts. Ms. Rozic said there is no space available at this time, but she can evaluate what might be coming up. Mr. Kropp said that there is a huge demand for space downtown and they are having a hard time meeting their own County needs. The Becky Johnson Center may be an option if Health Services moves out. Ms. Hill said that it was a big deal when they got an office at the Becky Johnson Center, since some clients were already going there for WIC services. Commissioner Baney said they need to make a decision sooner rather than later on a variety of things. This is good timing. Mr. M ohill stated that just because they want 2,000 square feet does not mean they would not be pleased with less. Chair Unger said the Housing Authority may have something that can be used as well. Commissioner Baney stated that it is expensive, though. Chair Unger added that the Redmond Hospital just acquired a house and has not been eager to use it for residential housing. It is vacant and in the hospital complex. He will check on this further. Commissioner DeBone said he is pleased with what they have done and where they want to go. 2. Civil Commitment Memo Discussion. Mr. Anderson said that he hoped to have a staff discussion on this ahead of time. Commissioner Baney stated Mr. Flaherty is at Oregon Youth Challenge today and cannot attend this meeting. Mr. Pilliod referred to his memo of February 26, which he will provide for the record. He did not want to read the memo, but instead gave a historical perspective. Many years ago, the Board decided that legal Counsel should be responsible for prosecuting civil commitment cases. The State has usually handed this area, and the District Attorney. typically takes care of the cases. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 4 of 16 The County has successfully dealt with these cases over the years, but the number of filings has increased a lot. A year ago, they discovered that there were some quirks in the way some of the cases were being handled. It starts with a two-physician hold regarding mentally ill persons, and confining them under very strict rules for a very limited time. The rules were not always being observed. They started looking at the process being followed, with concerns. They learned as an agency of the State they were obtaining waivers from these individuals, but the question was whether they were capable of informed consent. This all made Legal Counsel nervous due to some of this work appearing to be outside of statute. They think that the system is broken and has some issues. His staff worked with court staff, the presiding judge and representative of counsel appointed to defend, and the District Attorney’s office to analyze how the process is not following statute. This made them aware of the fact that is more complicated, due to monitoring and statutory requirements. They feel that over the course of the past six to nine months they have gotten into a routine with Behavioral Health and Sage View, doctors, court staff, defense counsel and others, and think the system is back where it needs to be statutorily. They hope the system is now fixed, but what it has really created is the realization that there is more to it than monitoring potential cases and hastily preparing these cases; along with trends in the number of cases. His office is capable of handling and overseeing these, but he does not feel it is the best use of their time. Since 1988, there is a lot more oversight needed. There are a lot more court cases, an enormous demand regarding labor issues; departments’ needs are increasing and core functions are much greater than in the past. Civil commitment work is fundamentally a state prosecution, and now that the system is properly operating, it should be returned to the jurisdiction of the District Attorney’s office. He has not received a response to his memo, and maybe there is no good time to make such a change, but it should be before a budget is approved. He is not sure of these impacts. They are prepared to assist in training or coordination to make this happen, to assist the other affected parties, the District Attorney, the court and others, to make it a smooth transition. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 5 of 16 For the Board, it is mechanically a straightforward process. The order from 1988 would just be rescinded and referred back to the District Attorney’s office. The timing is at the discretion of the Board. Perhaps the start of the fiscal year would be best. Staff can work on a transition. Chair Unger asked for comments from staff. Commissioner DeBone said the system is fixed, but asked if there is a perception of possible liability, or was there a real problem. Mr. Pilliod said they have not received any court claim notices, but they are possible. They were concerned about this since in some respects statute was not being followed to the letter. It was enough of a worry to get in and make sure things are in line. Mr. Pilliod said the legislature is considering a Bill that would among other things alter the definition of mental illness and potentially can expand this to include more people. It has an effect on funding that does not currently exist anyway, so it might not go anywhere. Commissioner Baney asked about the current interaction with the District Attorney. Mr. Pilliod said that because the County has so few staff, their first track was to talk with Darryl Nakahira of the Sheriff’s Office to help. When he is not available, the District Attorney’s office is willing to assign a Deputy D.A. to handle a case. Chair Unger stated that it is a staffing issue that needs a funding source, and he is not sure how big a staff issue this is. He asked about th e time needed and funding, as the caseload grows, so they can get a handle on what kind of budget issue this presents. Mr. Pilliod said that when a department has many staff members, you can think of parts of an FTE. From a budget perspective, it is easier to figure out. The problem from Legal Counsel’s point of view is that it does not amount to a full- time job for staff or an attorney, until there is a case. Then everything else has to drop while this is addressed. You just never know when this will happen. Even the oversight is irregular. It doesn’t work that way. In Linn County, they have hired a former member of County Legal Counsel to handle cases based on a fee schedule. It helps if someone is equipped to handle this, but he is not sure how they deal with the staff oversight part. Some use certified law students for part of this work if they are near Lewis & Clark College. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 6 of 16 Chair Unger says there does not seem to be any typical way to handle these cases. It could be fast or drawn out. He asked if there is an average time for a commitment process. Mr. Laherty stated that there are two types of commitment processes. The first is when a person is taken to a commitment hearing if they meet criteria and should be civilly committed. The second is a diversion process that the State feels will work if the person stays in the secure psychiatric facility for 14 days, therefore maybe avoiding commitment. To prepare for and prosecute a hearing, it takes a day or day and one-half, and a hearing averages about half a day. The 14-day diversion programs also take a significant amount of time due to procedural issues. It is attorney rather than staff responsibility to make sure these steps are taken. You can’t schedule a block of time; so when it comes in, they have less than 24 hours to deal with it. Likewise, for a separate hearing, they have 48 hours’ notice at best. They have to drop all else and focus on the case for two days before the hearing. Mr. Pilliod said the House Bill, if passed, would enlarge the pool of individuals who meet the definition of mentally ill individuals. He can see how this might result in more cases going to a hearing. He believes that the memo has empirical data regarding the number of holds and cases over the past ten years. Last year there were 24 cases in calendar year 2012 and nine more this year. Scott Johnson said those are the ones that go to commitment. There are others that don’t go that far. Most on a two-physician hold do not go to a hearing but instead stabilize in the five-day hold period, or there is another disposition of the matter. In those cases, attorney involvement is minimal. There are probably over 300 of these cases a year. There were sixty in January and February of 2013. It means a lot of work. Mr. Laherty stated that there are enough idiosyncrasy in these cases that there needs to be attorney involvement. Sometimes there are not adequate beds locally and they need to be transported elsewhere. On a case by case basis, staff needs to be involved and alert the attorney if there are concerns. These cases cannot wait when they come in. Commissioner Baney asked if someone is at Sage View, is that person a County resident. Mr. Laherty said that if they are not a resident of Deschutes County, they may be transported back to another location, but there are not many that fit this criterion. Regardless, someone has to provide oversight. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 7 of 16 Commissioner Baney asked if there are frequent flyers. Mr. Laherty stated this happens and often they have two five-day holds; the second one may mean a 14-day diversion program. Commitment can be for up to six months’ time. Connie Scorza tracks the history during discovery, and has to prepare the file. The next involvement would be an appeal. Since last May, all changed from a staff point of view. They have had to handle 121 holds thus far this year with eleven going to a commitment hearing. As far as time is concerned, it breaks up other projects when defense counsel or doctors call. Mr. Pilliod stated that there is a considerable amount of preparation and monitoring regardless if it goes to a hearing. Staff is involved in every case even if an attorney does not have to get involved that much. Chair Unger asked how they can move forward to address this process. Mr. Johnson said that the County does all it can to adjust to changes. There is a considerable amount of additional work as the holds and commitment have increased. They have to be legally responsible to all. The Crisis Intervention Team responds to these and works with the Jail and law enforcement as needed. They will work with either party. He hopes the transition is sufficient to make sure that they are aware of forms and process changes. It is not just supporting the Court portion, but being in the community to help the individuals involved. Ms. Hill stated that they have seen an increase in these numbers. It may have leveled off, but is still higher than historical numbers. Mr. Pilliod said that he would be remiss if he did not mention that his office will continue to provide general legal help to Mental Health and the Crisis Intervention Team as they bring them up. It would not conflict with the commitment process. Mr. Johnson said they referenced a House Bill, which also may compel someone to seek community health services. There are a number of legal questions involved with this issue. Ms. Scorza said that the District Attorney’s office has been good in picking up cases, but staff there has not worked up the case and there will be time needed for transition. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 8 of 16 Mary Anderson and Sarah Foreman explained that the District Attorney will let them know if he wants them to take this on, and if so, they will be happy to do so with diligence. They appreciate Ms. Scorza’s expertise, so she needs to be available to assist with training. They are short of attorneys, with between 15 - 20 trials a week. They don’t know in most cases until the day before if a trial is going to happen. They can only guess at this. They believe a transition time of at least 90 days would be needed so they can identify staffing needs. They don’t have the expertise that Ms. Scorza has, and they are in the middle of their transition to new software, and are migrating old cases over. They also entered into an MOU to handle child support issues . It was not a good time for that, but they needed to be able to have an attorney work with the Department of Justice. In additional to criminal prosecution and juvenile cases, they work with the Crisis Intervention Team, elder abuse and child abuse multi-disciplinary teams, and other obligations of their office. Sara Foreman has been looking at this project and has reached out to a number of people, as well as other counties. They want a six-month period to make a complete transition. They know that the crisis team won’t be able to meet for days at time to make this happen, and need to work with Ms. Scorza as well. It will take training two or three attorneys to cover hearings. With those parameters in place, identifying a supplemental budget and a transition plan, they can take this on. She hopes they will learn from County Counsels’ experience how to be efficient at this. Commissioner Baney asked if a representative of each body can meet to come up with a way to see how it would look. They could go as it is now and add staff; or they can use a private contractor for some of this; and also work with the District Attorney to have them do this work. Perhaps a smaller group can sit down and figure out the best way to do it, and base the timing on what works for all. The hospital was mentioned as well as the courts ; she asked if there is an impact to them, or does it matter. Mr. Pilliod stated they’d be impacted to some degree, but there is no staffing issue for those entities. They will continue to perform as they have. If the numbers trend up, it won’t have anything to do with who handles i t. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 9 of 16 Mr. Anderson noted that they want to see how it goes for 90 days and determine if staff needs to be augmented at the District Attorney’s Office. What he did not hear is what price is attached to Counsel handling these, and what else that not having this burden would allow them to do. Mr. Pilliod said they are not looking at a steady quantity of activity from these. If a case comes in with 24-hour’s notice, the person responsible will have to drop all else to prepare. That attorney may have to work a weekend to prepare other assigned duties. Recently there was a significant civil case when this happened. The day is taken up with little notice and no discretion. In order to accomplish other projects, he had to work the entire weekend. It is random and unanticipated. What is not getting done is core functions in a timely way, providing counsel to departments and handling civil cases. Staff is significantly impacted due to the monitoring part. It is not as if you could buy a .25 FTE person to wait for these to come in. It is not rocket science, but someone does need to be trained for this, and will need to interact with behavioral health and the court, physicians and defense counsel. If a trial assistant in the D.A.’s office has other work to do, it could be a part of several persons’ responsibilities. They do not have enough staff in his office to do this. Mr. Anderson said that when doing work for departments, work that is done on these cases is charged back to Behavioral Health. Ultimately, Health Services pays for most of this. Mr. Pilliod said that statute allows for some recovery of costs, but this is the typical method. This is another level to be figured out. Mr. Pilliod said that the hours billed to a direct service provider are hours of attorney time. The departmental budget, including staff, is rolled into the indirects. The actual hours calculated in this, such as an attorney, can var y. It is a rolling average. Chair Unger said it appears that the D.A.’s office would like 90 days to work on this to see how it goes, and a comparison can be made budgetarily. Commissioner Baney asked if they are ready to take this on. Chair Unger said they want to identify staff workloads during that time. Ms. Anderson stated that they need to make a decision on whether the D.A. should do this. They can’t speak to the other options. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 10 of 16 Within 90 days, they can identify what they need in the way of training and staffing. They don’t have a trial assistant with any free time right now, and some are coming in for additional hours. They can’t absorb this now with current staffing. Ms. Foreman has been examining this to see what it will take in regard to attorney time, but staffing is the biggest issue. In 90 days, they will know what they can do and see if it blends with the project. They would need assistance in a transition for 90 days after that. Commissioner Baney said she thinks they still need a work group to meet and iron out the best option. Chair Unger is not sure why it would take 90 days. Mr. Pilliod said they are ready to make a transition and will provide whatever support is needed at this time. He would like to report back to the Board in a month to update them on how this is going. They may not know the entire costs but will know what staffing level is needed. It appears that the D.A.’s budget seems to be considering additional staffing since they are now using contractors. It might be that this pushes them into the direction of adding a full time staff person. It is a matter of identifying staffing needs and whether existing staff can handle it. Mr. Anderson is happy to pull together a work group and answer the questions raised today. The Board agreed this is the appropriate way to go. Commissioner Baney said that if in the interim there are additional needs not being addressed, to let Mr. Anderson know and they will do what they can to provide that assistance. 3. Discussion of Alternatives for Fire Protection for Unprotected Lands in Deschutes County. Joe Stutler gave an overview of unprotected lands and where there is property that benefits from some support systems, and other property that is completely unprotected. There are 175,000 or more acres of unprotected lands in the County. The liability to the County for doing nothing has been defined. The stakeholder involvement includes all the fire chiefs, the Sheriff’s Office, fire districts, the BLM, Oregon Department of Forestry, the State Fire Marshall, the Forest Service, and various County departments; as well as concerned citizens. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 11 of 16 The alternatives under consideration are the status quo; or forming three or more fire districts; or forming one fire district for all unprotected areas, utilizing the closest forces to respond but pay for their services, and a few more. He referred to a map showing current protection. The federal agencies only cover their lands and not structures. The ODF has entered into a rangeland association agreement with the eastern County area for some kind of protection that can be used in an emergency for rangeland fires. This would be all volunteers with the equipment provided by the ODF. The focus would have to be on the land and not structures. These citizens are very independent and would not leave their properties in a fire. One big problem area is Alfalfa where there are over 300 homes. To date, there are minimal costs for court claims, but there is the potential for significant costs for this in the future that could be up to $500,000 a day for suppression, based on the cost of firefighting today. It could be reimbursed through the Stafford Act, covering about 75% for monies spen t. And the Conflagration Act can trigger some resources, but these would come from other areas. The liability to the County is low. There is still no organization or structured response team. The County can still enforce open burning laws. But however small, the risk to the County is not mitigated. Forming districts will have to do with response time, physical locations for equipment and staff, and costs. They may be able to use the Stafford and Conflagration Acts to their benefit. There is risk because then they would be expected to respond quickly. The biggest issue is not being able to support these events adequately. Forming one special district would cover things much better, with agreements in place with other jurisdictions that could cover for each other. This spreads the risk across a larger landscape. A secure funding stream would need to be in place. Discussion took place on how this coverage could be financed, through taxes that could be assessed by the County, but which would be more readily acceptable if put to a vote of the affected citizens. The County would have to enter into any agreements with other jurisdictions. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 12 of 16 If the closest forces are used, there would not be additional assessments and risk would be reduced. In most cases, the responsible party would be billed unless it was an act of nature. Most fires are human caused, however. Another alternative evolved. They would evaluate wildland, structural and EMS services. In many cases, it involves EMS and not fires. If the risk was spread over the entire County, there would be potential for turf wars, especially if they privatized EMS. However, County-wide solutions or options might be developed during this time and they could use existing systems to respond. Policies need to be streamlined and consistent. They could utilize a written delegation of authority from the Board and Sheriff to authorize Sheriff’s Office personnel and the Forester to evaluate and order sufficient operational resources to suppress fires. Commissioner Baney said they need to know the cost factors; for instance, is it helicopters or on the ground equipment? The owners of unprotected properties have been living without fire protection, and the odds of theses people paying for it then is very slim. There can be expectations that more will be off ered than is available. People can build if they want in these areas and need to be realistic about the risks. Mr. Stutler suggested they have a work session with fire chiefs, other governmental agencies and law enforcement to get their feedback. Then perhaps a public meeting could be scheduled to talk about alternatives. There was a meeting in 2005 on this topic and there was some interest at that time. Then the Board can make a choice regarding this aspect of public safety based on stakeholder involvement and other factors. Commissioner Baney stated that most areas are grouped and have some kind of structure. This is not a new issue for them. Some engagement with these groups would be beneficial. They need to determine if this is something they would be willing to pay for. If not, it is a moot point. If so, how would it be structured. Mr. Anderson said the idea was to look at unprotected lands issues here, and one of the options is status quo. They are not trying to force something on people who don’t want change, but to present options in case they do. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 13 of 16 It is premature to do anything now, but if the Board feels it is important to proceed, before the public is brought in, it is important for the Board to know what the fire chiefs and other partners think. They ne ed to be on board with the concept, and then decide if they want to take it public. Commissioner Baney would like to see the list narrowed or reconfigured to eliminate some that are not feasible. A full understanding of the liability is important. They could do more, but it might increase potential liability. Mr. Pilliod said it is within the discretion of agencies to send help to these areas. Mr. Stutler said they won’t send them except to cover public lands. Mr. Pilliod will try to come up with a basic risk assessment for further discussion. 4. Property Update Discussion of “Broker of Record’ for the Sale of County-owned Industrial Properties. Susan Ross explained they have several parcels that they want to market for sale, including properties in La Pine in the industrial park. In particular, she feels there should be a broker involved for industrial lands; and someone to oversee sale of the north County properties. They had a broker of record in the past when they had a lot of project properties. The last solicitation was in 2004 but they never selected a broker. They have used a broker as needed for various properties, but not one to oversee all sales of this type. The documents used previously can be modified to select a new broker of record. The agent would not take over what the department is doing now with negotiations, but it takes away the burden of showing property and screening buyers. Chair Unger asked why they don’t think about having more than one who might be familiar with a specific area. They have relationships built up in those areas. Mr. Anderson stated they could be more specific. Commissioner Baney said there is a benefit to having a local agent due to the problem of distance and knowing the community. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 14 of 16 Request for Redemption of Foreclosed Property. Ms. Ross referred to a memo regarding someone repurchasing a lot in south County. The people believed they owned this lot, which is between other lots they own. There was a misunderstanding regarding the tax bill. The previous owners had consolidated the lots and did not realize there was an error on the deed that described just the one lot, so they thought it was all one lot from the beginning. The Assessor broke the lots apart and assessed the lots separately. Their lawyer pointed out there was a problem when they were doing some trust work. Mr. Pilliod said they have not been paying taxes during this time on that lot. Ms. Rozic said they would have to repurchase the lot for taxes plus interest and penalties. They likely would have paid it if they had known. Statute says the minimum is to the date of purchase, which would be about seven years. BANEY: Move approval of staff recommendation to allow this party to repurchase the property with these conditions. DEBONE: Second. ___________________________ Ms. Ross said the La Pine Senior Center grant is up to date; the County was required per the grant to hold title for five years. They wanted assurances that the funds were being used as they were supposed to be. They can transfer the deed to the Senior Center now. Commissioner DeBone said he called the manager of the Center and they are excited there that this is happening. Mr. Anderson said they could have a joint meeting with the City Council and do something with this at the same time. Commissioner Baney stated they could just have dinner at the Center and do it then. 5. Other Items. Ken Hales said they are doing a juvenile detention facility needs analysis. Staff is now prepared to talk with people outside of the facility. If they have to close a door, or release on matrix, they can use this study to manage this. The magic number is four. The intent is not to change practices, but to list numerically how they are doing things. Minutes of Board of Commissioners’ Work Session Wednesday, April 10, 2013 Page 15 of 16 Commissioner Baney asked how other counties are handling this change. Mr. Hales said that one asked if he is going to apply the County’s values on the kids that are detained elsewhere. He is more inclined to make this more on a space available basis. If they will come get the kid if necessary, that is acceptable. He will be sending a memo to the other agencies to make them aware of what has changed. ___________________________ Mr. Anderson said that the Board has talked about having a hearing in Alfalfa. They would have to rent an ADA accessible porta-potty. Staff is concerned also about being able to run a presentation. Staff also is concerned about there possibly being others interested in this issue, and those people would end up having to drive to Alfalfa to sit in on it. Commissioner Baney knows it could have Countywide significance. She asked if they would do the same if it were an application in La Pine or Terrebonne. She likes to try to get to the community if possible. She likes the idea of the good will part of the equation. Chair Unger said it takes a lot of work to go off - site and he sees it as a larger issue affecting the who le County. The way cell towers are sited is going to be an ongoing issue. Commissioner DeBone said he is supportive of going there, but does not want to put it off too long. It depends on availability. ___________________________ There was then a discussion regarding the employment contract with Tom Anderson. They have used the same language as in the Kanner contract with the exception of the salary range, starting at $140,000, adjusted by longevity pay. Trying to arrive at a top end salary meant using what was in the job announcement, $165,000, and they came up with five steps. The Commissioners had indicated this was an acceptable approach. Mr. Pilliod has one question that needs clarification. This has to do with the salary range, and cost of living adjustments. Personnel said it is not the County’s practice to adjust the salary range but to increase the base salary of the step indicated. It appears there is uncertainty. Do you use the COLA language or make it a static and unadjusted amount. This language is in his contract as well so he can’t weigh into it. One option is to get separate legal advice from his department or from outside. The only issue is that it should be addressed as soon as possible so the contract can be ratified. The language could also be removed. That does not mean that the salary might not be adjusted along with other non-represented employees. Another approach is that the Board could decide whether to require the range to be adj usted. This has not been the practice per Personnel. There is another clause that allows for the COLA. Mr. Kropp said all County classifications allow the range to move up with the COLA. Otherwise, in twenty years there might have to be a huge adjustment to catch up. The Board was supportive of this scenario. Being no further items addressed, the work session ended at 5:40 p.m . .,.,1111.-. DATED this /7 --~2013 for the Day of--=,-+,"--_______ Deschutes County Board of Commissio~ AI ~ Tammy Baney, Vice Chair ATTEST: Anthony DeBone, Commissioner ~~ Recording Secretary Minutes of Board of Commissioners' Work Session Wednesday, April 10,2013 Page 16 of 16 Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 2:00 P.M., WEDNESDAY, APRIL 10,2013 -note later time 1. Update on Latino Community Association -Brad Porterfield 2. Civil Commitment Memo Discussion -Mark Pilliod 3. Discussion of Alternatives for Fire Protection for Unprotected Lands in I tDeschutes County -Joe Stutler & Ed Keith 4. Property Update: Discussion of "Broker of Record' for the Sale of County­ owned Industrial Properties; Request for Redemption of Foreclosed Property Susan Ross 5. Other Items I PLEASE NOTE: At any time during this meeting. an executive session could be called to address issues relating to ORS 192.660(2) (e). rea propeny negotiations; ORS 192.660(2) (h). litigation; ORS I 92.660(2X d). labor negotiations; or ORS 192.660(2) (b). personnel issues. Meeting dates. times and discussion items are subject to change. All meetings are conducted in the Board o/Commissioners' meeting rooms J300 NW Wall St .. Bend, unless othefWise indicated, Ifyou have questions regarding a meeting, please call 388-6572. Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled. dial 7-1-1 to access the state transfer relay service for 1TY. Please call (541) 388-6571 regarding alternative formats or for further infonnation. I ! t I [ ~-~--+---------r-----+~-t--. -- " \'-, I I I I I ~l ' 11 ~ I IJ I I I I I ..,.. ~ I ~ 10 Ii I e... I COMMUNITY ASSOCIATION Latino Community Association Movingfrom enabling families to survive to Empowering families to thrive! Strong families make strong communities. Your support is needed to help address the unmet needs of the Latino families in our community. You've said it yourself: family is so important! The Latino Community Association has provided assistance to Central Oregon's Latino families for more than 13 years. We promote full participation of Latinos in the community. Your support will help empower families to thrive. Our Programs Our programs include workforce empowerment, family empowerment, cultural enrichment, volunteer opportunities and youth community involvement. We have a new vision of a Latino Family Empowerment Center that will expand the workforce and education services we currently provide while adding important new services to help people achieve their personal and professional goals. Services include vocational skill-building, language and communication instruction, parenting support, citizenship assistance, and asset-building tools like individual development accounts. We are developing a new integrated service-model that will provide a continuum of services that not only help families survive difficult times, but also help guide them toward their longer-term goals. We plan to transform lives for greater impact. You can help the "whole family" With help from people like you, through our "whole family" service-model, last year alone we served 1,647 adults and 4,200 children with: 532 translations/interpretations 754 family asset development services 708 legal services 155 health services (children & adults) 41 students tutored in English 53 students tutored for Citizenship 100 Spanish-literacy students (lst-5th grades) 3 cultural events 4000+ volunteer hours 100 youth engaged in community service Resource Needs 2013-2015 , FYI3-14 FY14-15 Empowerment Center $ 143,511 $ 170,304 Operations, Cultural Enrichment & Other Services $ $56 ,312 $ I 91 ,087 Total $ 199823 $ 261,~88 Each December we host our annual fundraising event. This one-hour event features the incredible stories and work of our organization. If you would like to host a table or provide a business sponsorship please contact us. Get involved in your community through the Latino Community Association! • Sponsor a program or event. • Volunteer. • Become an AMIGOS member. • Make a donation to help our families and our communities thrive. Please contact us at 541.382.4366 or b rad@latiDocommuDityassociatioD,or~ 1130 NW Harriman St., Bend, OR 97701 or 412 SW 8th St. Redmond, OR 97756 541.382.4366 www.latinocommunityassociation.org (LepI*health,~":~fea4~ •. ,{,' • HelD; reSoIvtAc ptQtllems and ad'tfevInl your_Is ' ., rntetpretatfOl1~_:~"tlon~~*bHl~._:""'~ts . •' \\'f.i~ tra,~aI~'U~tatIon byph~~~.""n"JJ8f't$ . 4 • • . ClInIcs: '" Children's DerQI(rnonthly chtQt.tp). ' , ' ' ./Adult~",cy~·(oa:asionally~... ./ Legal Consults [lmmi8fation*·~.4ltoreel ' '~~ ,:, "\i'~" ·'·f'~>.·:~~·:,;·:~~~-~, '" Help fltlnl your Taxes (Februarf-April) '" Mex~n~~lar IDsetvices (~~,a year I~)"f ~ h ,I . ~ i -i '. . ~,~,_ ~"J ~ '~,:,~) • Job AssIstance aroU)pportunitiesto help as a voIuntter ,. ~ , " " • :English tuiort,. prOaram ' • Otiz~nship dasses (~ndand Redmond~- • .-La aase-Spanish literacy after«hool'ptOItam(R~i::sfsterst;~f' '. , " • '. Cultural exman._'for'iVactfchl' a 2-lanauaae .. ,~ '.,• Festival of Cultures'lnMctmond 'Benet OffIce RedmOnd;"'" (S41'aaz~..~ .. ' •.··'wt_HarrinIM -8end, on.,;'mot , ' '?I:'_ (541, ~'('~ .' 412SW'" st ;., ......."..·91756· ", .l',f ESTA"S PARA APOYAR Y FORTALECER A SU FAMILIA • Orientacion a los recursos en la comunidad (salud, educacion, trabajo, vivienda, com ida, leyes, etc.) • Ayuda para resolver los problemas'y lograr sus metas • Interpretacion y traduccion de cartas, aetas, faeturas, etc. .0...... • Traduccion escrita e interpretacion por telefono y en las citas a.ua DI....a.oII • afnicas: -/ Dental para los niftos (chequeo mensual) -/ Dental para los adultos: servicio de limpieza dental, selladores y fluoruro. -/ Consultas legales [inmigracion, bancarrota, divorcio, etc.] (mensual) -/ Ayuda para preparar los impuestos (febrero -abril) -/ Servicio del Consulado Mexicano movil (una vez al afto en junio) • Asistencia con el empleo y Oportunidades para contribuir como voluntario • Programa de Tutores del ingles (estudio independiente) • Clases de Ciudadania (Bend y Redmond) • La Clase de la Leetura en Espaftoll° a SO grado (Redmond y Sisters) • Intercambios culturales para praeticar un segundo idioma • Festival de Culturas en Redmond Ofidna en Bend Oficlna en Redmond (541) 382-4366 (541) 382-4366 solo los viernes 1130 NW Harriman ­Bend, Oreson 97701 412 SW 8'" SL ... Redmond, OR 9n56 Cllil PI ........ info.,atlnocommunltvassoclatlon.onr www.latlnocommunitvassodation.orl Central Oregon Central Oregon 0 1000 2000 3000 4000 5000 6000 7000 Bend Redmond Madras Prineville 6,256 3,275 2,330 1,258 Latino Population Growth 1990-2010 Cities in Central Oregon 2010 1990 812% 215% 1,562% 1,190% Of the 47 million new workers set to enter the labor force between now and 2050, 80% will be Hispanic. - U.S. Bureau of Labor & Statistics Addressed by Latino Community Association •Overcoming Language Barriers •Breaking Through Cultural Barriers •Filling Education Gaps •Orienting new residents to U.S. Culture/Systems •Celebration & Awareness of Cultural Diversity •Achieving Equity & Inclusion •Welcoming Latino families •Supporting parents raising kids in a new culture •Supporting kids straddling two cultures •Surviving is not as lasting or impactful as Thriving •Our approach has been reactive rather than proactive •We need to be measuring the change in people’s lives •Program structure has been piecemeal – not comprehensive Honest Reflection >> Improvement •One-time services impact less than long-term goal setting Family Empowerment Empowerment, to us, means . . . Providing tools and opportunities, allowing people to express their inherent abilities and overcome barriers to realizing their dreams and full potential. •Space is a limiting factor. More = More options •Own space = more control, flexibility, access •Opportunities for partnerships and volunteerism •Drop-in model = greater access & client support •Childcare = access for parents of young kids •Space = more interactions = more impact Comprehensive Assistance •Goal-oriented service model = culture of advancement and empowerment Holistic, longer -term, whole-family approach Computer Lab (drop-in) Childcare (drop-in) Personal Development Plans Focus on Workforce Development Workforce Empowerment •Employment assistance (computer education: job search, resumes) •English tutoring •Citizenship assistance •Skills training •Volunteer training •Youth community involvement •Small business support •Asset development (education, small business) Family Empowerment •Information & Referrals •Education support and advocacy •Parent school involvement •Housing assistance •Legal & Health clinics •Parenting education/support •Budgeting & home finances •Tax filing assistance •Asset development (education, housing) 1. Funding 2. Space for Empowerment Center 3. Letters of Support 4. Contract our services 5. Other ______________________ I J DESCHUTES COUNTY LEGAL COUNSEL MARK E. PILLIOD IA,f Legal Counsel /(v tr 541-388-6625 CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION -NOT TO BE DISCLOSED TO: Anthony DeBone, Chair DATE: February 26, 201 Tammy Baney, Commissioner Alan Unger, Commissioner RE: Prosecution of Civil Commitment Cases Our File No.: 12/1-023 Legal Counsel requests that the Board of County Commissioners revisit the issue of whether involuntary civil commitment cases in Deschutes County should continue to be handled by th Deschutes County Legal Counsel's Office, or whether such cases should be retumed to the Deschutes County District Attomey's Office. This memorandum provides the Board with th historical perspecti ve and support for Legal Counsel's recommendation to return the prosecut on of these cases to the District Attorney's Office. HISTORICAL PERSPECTIVE OF INVOLUNTARY COMMITMENT IN DESCHUTES COUNTY Based upon available data, Deschutes County Behavioral Health estimates that 3,552 persons were placed on emergency physician holds l in Deschutes County between January I, 1995 and prC$cnt. While this reflects an average of208.9 holds per year for the 17-year period, the number ofh<.j)lds occurring each year has risen significantly over the past several years. For instance, in 2012, I Deschutes County Behavioral Health processed 373 involuntary holds. And, during the first ~wo months of2013, nearly 60 holds have already been placed. . 1 A "physician hold" may be placed on an individual when the person is brought to a healthcare facility and is bQlieved by a physician to be a danger to themselves or to others and in need of emergency care or treatment for mental iUness. If this occurs, the physician may, after consulting with another physician or a qualified mental health profession,1 detain the person and cause the person to be admitted or approve the person for emergency care or treatment at ~ non- hospital facility for up to five judicial days. See ORS 426.231 and 426.232. : Board of County commissloners Re: Prosecution of Civil Commitment Cases February 26, 2013, .age 2 In order for a person to be subject to an involuntary period of detention, a detennination mustlbe made that the person meets the statutory criteria of a "Person with mental illness." ORS 426.0pS? HB 2594 was recently introduced during the cun-ent legislative session. Should HB 2594 or a l similar bill become law it would revise ORS 426.005 and greatly expand the criteria necessar~ to define a person as a "Person With Mental Illness." This will, in-tum, likely increase the num er of persons subject to holds/diversions/commitments, which in tum will increase the number of t .ese cases within the Legal Department. ASSIGNMENT OF AMI FILES Under ORS 426.100 the District Attorney's Office is the default prosecutor for a county's f; involuntary civil commitment cases {commitment cases).3 Nevertheless, in 1988 the Board el cted to have commitment cases handled by County Legal Counsel rather than the District Attorney. It appears there were two primary reasons for this decision. At the time, the State offered to payi some portion of the costs associated with prosecuting such cases. In addition, for the sake of \; continuity, since County Legal Counsel provided general legal advice to the Behavioral Healt Department, it made sense at the time to have commitment cases handled by the same office. • he rationale from 1988 no longer holds. In all of my years with the County, the State has never ! 2 "Mentally ill person" means a person who, because of a mental disorder, is one or more of the following: 1i (A) Dangerous to self or others. (B) Unable to provide for basic personal needs and is not receiving such care as is necessary for he .lth or safety. (C) A person: (i) With a chronic mental illness, as defined in ORS 426.495; (ii) Who, within the previous three years, has twice been placed in a hospital or approved inpatient facility by the authority or the Department of Human Services under ORS 426.060; ·(iii) Who is exhibiting symptoms or behavior substantially similar to those that preceded a dIed to one or more of the hospitalizations or inpatient placements referred to in sub­lsubparagraph (ii) of this subparagraph; and . (iv) Who, unless treated, will continue, to a reasonable medical probability, to physically or mentally deteriorate so that the person will become a person described under either . subparagraph (A) or (B) of this paragraph or both. 426.100 Advice of court; appointment of legal counsel; costs; representation of state's interest. . (4) The responsibility for representing the state's interest in commitment proceedings, including, but not limited to, preparation of the state's case and appearances at commitment hearings is as follows: \. (a) ... (b) The district attorney if requested to do so by the governing body of the county. . (c) In lieu of the district attorney under paragraph (b) oftbis subsection, a counsel designated by th¢ governing body of a county shall take the responsibility. A county governing body may designate couns,lto take responsibility under this paragraph either for single proceedings or for all such proceedings the cou ty will be obligated to pay for under ORS 426.250. If a county governing body elects to proceed under this paragraph, the county governing body shall so notify the district attorney. The expenses of all attorney I appointed under this paragraph shall be paid as provided under ORS 426.250. ! 1 Board of County commissl'oners Re: Prosecution of Civil Commitment Cases February 26, 2013, ~age 3 i offered financial SUppOit for handling these cases.4 In tenns offumishing legal advice, Legal\' Counsel will continue to be available, as needed. However, with respect to civil commitment, decisions made byBehavioral Health and more importantly, by physicians at St. Charles, are. behavioral health (not legal) judgments. Other than advising the various parties, the court, defense counsel, and the State (Legal Counselor the D.A.)5 of the person's status with respect to • commitment, little in the way ofIegal advice is required in advance of proceeding with I commitments. Once that process begins, then trial counsel for the State becomes directly inv9lved in preparing and presenting the case. . I INVOLUNTARY COMMITMENT CASES The number of civil commitment cases handled by Legal Counsel's Office since 1998 are as fol1ows: 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 8 3 17 19 21 19 17 I 13 21 i 13 15-­2009 2010 2011 2012 2013 18 14 9 24 5 (thus far) Because the statutes require an allegedly mentally ill person ("AMIP') to be afforded a hearinrt to detennine if they meet the statutory criteria to be committed within 5 judicial days of the initia~ion of a hold, when Behavioral Health decides that an AMIP is not a candidate for the other three I pathways to treatment or release described below, the process for an involuntary commitment, hearing begins. Because of this short timeframe, once an investigator from Behavioral Health is assigned to a commitment case, virtually everything else being handled by the assigned attomlY and either Georgia or Connie is set aside until the case is heard in court. 4 Any costs for district attorneys or other counsel appointed to assume responsibility for presenting the stale's case shall be paid by the county where the commitment hearing is held, subject to reimbursement under ORS 426 310. 5 It should be noted that County Legal Counsel represents the State's interests in commitment proceedings) "including, but not limited to, preparation of the state's case and appearances at commitment hearings." ORS ' 426.100(4). I Board of County commissLers Re: Prosecution of Ci viI Commitment Cases FeblUary 26, 2013, Tge 4 THE COMMITMENT PROCESS . As mentioned above, under the statutes goveming commitment cases an AMIP may be detaiJd for a total of five judicial days. This is referred to as a "hold." Prior to a case being referred f<t>r an involuntary commitment hearing, the AMIP is generally detained in a secure facility at st. Charles/Sageview for approximately three days. During these three days the Deschutes County Behavioral Health team (BH team), in consultation with the attending psychiatrists, evaluate tIte AMIP for one of four possible pathways: . 1. Release during the 5-day statutory hold period; 2. Agreement to a 14-Day Diversion pro gram 6; 3. Voluntary Commitment; 4. Involuntary Commitment. i In May, 2012, the Legal Counsel's Office discovered that the BH team had been misinterpreti~.g the statutory requirements of commitment cases and that the policies and procedures drafted bj BH were in error. In addition, BH was utilizing forms from a form bank provided by the State of Oregon which were out of date and at variance with the statutes. This discovery presented I potentially significant liability for Deschutes County. Thereafter, Legal Counsel convened a s~ries of meetings with all the stakeholders involved in civil commitment issues, including BH, Hon.1 Alta Brady, the Circuit Court Administrators, Circuit Court staff, the two defense counsel finn$ appointed by the Court in these cases, administrators from St Charles Medical CenterlSagevier, and the lead psychiatrist at st. Charles, Dr. Magnus Lakovics. I Following these meetings, the Legal Counsel's Office revised all of the policies and procedurd utilized by BH, and has created a statutorily accurate form bank for use by the BH team in wor~ing with AMIPs and their legal counsel at each stage of the process. I Whereas before May, 2012, the Legal Counsel's Office only became involved at the time an Ar,IP was refen'ed for involuntary civil commitment, the Legal Counsel's Office has since been monitoring every hold placed in Deschutes County from the placement of the hold through rele. se of the AMIP, the 14-Day Diversion process, the voluntary commitment process, and/or the I involuntary commitment hearing process. This is largely to avoid a last-minute rush to assembie necessary witnesses and paperwork needed to present a case. However, it also helps assure tha~ people detained because of behavioral health issues are fumished with their applicable rights under the relevant statutes. I Prior to May, 2012, the Legal Counsel's Office began examining the possibility ofretuming the commitment cases to the District Attomey's Office. The additional daily monitoring after May\1 2012 has significantly added to the staff workload in the Legal Counsel's Office. The Office consists of 4 attomeys and 2 support staff Should HB 2594, or a similar bill pass during this . 6 The 14-day diversion program is used when it is believed the AMIP will stabilize once placed in secure environm~nt and allowed to be established or re-established on an appropriate medication and treatment regime. sometime~ this works, sometimes it doesn't. : Board of County commissl" ners Re: Prosecution of Civil Commitment ases FeblUary 26, 2013, ge 5 , legislative session, it will be impossible tor the Office to continue monitoring the additional numbers, without adversely affecting its responsibilities to other County depaliments. Below is a snapshot of the requirements placed on support staff for the commitment cases and .also the daily monitoring processes. . USUAL CIVIL COMMITMENT CASE PROCESS r-----------------------------~-------~---------------------'Telephone call from Behavioral Health Staff immediately contacts the Circuit advising a civil commitment will be COUli schedulers with the name ofthe required. Information given, name of AMIP, present location, and time when AMIP, present location, when BH the BH Investigator's Report will be Investigator's Report will be completed, filed. Case number provided by Court. and location/duration of medical records needed to be subpoenaed for the hearing Later the cou11 will provide the date, time, judge and courtroom for the hearing, and the defense counsel appointed to represent the AMIP. Physically open a new commitment file utilizing nonnal Legal Department protocol. First two pages of BH Investigator's Subpoenas to the medical facilities are Report faxed to Legal Department. prepared; and a courtesy copy of the These pages include the names and unsigned Subpoenas are faxed or contact information for witnesses the emailed to the facilities. BH team believes will be needed for the hearing. The usual facilities include: DCMH, DCAJ, St. Charles, Sageview. , Court adv the date, time, judge and courtroom for the hearing, and the defense counsel appointed to represent theAMIP. BH Investigator files the complete Investigator's Repoli with the Court and delivers a copy to Legal Department. Notify BH of the date, time and location of the hearing. Issue Subpoenas for the non-lead BH Investigator who may need to testify at the hearing. Calendar on Attorney's Calendar and take care of any conflicts that exist. Police Officer witness subpoenas prepared, signed by Attorney, and faxed or emailed to the law enforcement location (SO, Bend, Redmond). Prepare check tor witness __ __ Board of County Commissi ners Re: Prosecution of Civil Commitment ases February 26,2013, P ge 6 I i t 1 i i 1 1 I j i I fee for police officer. Ifpolice report has not been received, obtain copy of police report. The Investigator's Report discloses the name of the treating psychiatrist for the AMIP. Staff contacts the defense counsel appointed to determine if he/she will pennit the MD to testify via telephone conference call. Whether yes or no, a Motion for the Telephonic Testimony of the MD, Supporting Declaration, Order and Certificate of Service are prepared. Preparation of third party witness subpoenas (family members, community members, BH health staff) and checks for witness fees prepared. Arrangements are then made with the SO for service of the Subpoenas for any witnesses that are not DC employees. r=~~~--~------------------~--~~----~----=-~--~---"--First Visit to Court Staff then take the medical record Subpoenas and the Motion for Telephonic Testimony to the Courthouse for the Judge's signature. Sometimes this takes only 15 minutes, other times, Yz hour, or a need to return if the Judge is not available. i------:-:---:------"---,---------------+--~------"----- Medical Record Subpoenas Signed by The signed medical record subpoenas Court are then scanned and emailed to the respective medical facilities. These must be sent on Day 3 since the medical facilities must deliver the records to the COUl1 24 hours before the hearing is scheduled which could be the afternoon of Day 4. :O~_r-d~e_l-·_o-~n_M o_ti"_o_n f_o_r _T_"e=le=p=h=o=n-e_-_ -_ -_ -_ -_ -_ -_lL-T_j~he" Moti~n, Declaration, and Order are Board of County Commissi ners Re: Prosecution of Civil Commitment ases February 26,2013, I age 7 ITestimony of the MD Signed by Court faxed or emailed to defense counsel, along with the complete Investigator's Repol1 and any police reports received. Witness subpoena prepared and signed for MD are faxed to his office, and a copy is mailed that same day. Second Visit to Court As often happens, the AMIP is transferred between facilities and then a different treating psychiatrist will be testifying at the hearing. This requires a second round of contact with defense counsel, second Motion for Telephonic Testimony, Declaration, Order, signature by the Court, fax/email to defense counsel. Second MD witness subpoena is prepared, faxed and mailed to the second MD. Third Visit to the Court During preparation If the case, the assigned attorney may discover that one of the lay witnesses is not available to come to Bend to testify. This requires an Order of the Court for that witness to testify by telephone. Again, contact with defense counsel, Motion for Telephonic Testimony, Declaration, Order, signature by the Court, fax/email to defense counsel. Fax/email to lay witness and issue and mail witness check to witness. Fourth Trip to Courthouse If not available during one of the previous trips to the Courthouse, staff needs to pick up the packet prepared by the Court that contains the Orders appointing counsel for the State, the AMIP, the Medical Examiner, the transport Order, etc. Miscellaneous Matters .-­have been a few cases, ~herc the Following the Hearing Board of County CommissiG>ners Re: Prosecution of Civil Commitment <tases February 26, 2013, phe 8 AMIP's records are outside of Deschutes County which requires coordination with the facility in another County by issuance of a Court issued medical records Subpoena (another trip to the Courthouse), etc. Various meetings between staff and the assigned attorney to con finn status of records, witnesses, Orders, Subpoenas. Calendar 35 days from heating for return of medical records to the facility that produced them in no appeal is i filed. I If Appeal Is Filed Copy Notice of Appeal is appended to medical records so they are not returned or destroyed. Copy of Notice of Appeal is added to file so it is not archived. Await direction from Circuit Court to return the exhibits admitted at the hearing to the Court to be transported I to the Court of Appeals. Await decision by Court of Appeals. Obtain exhibits from the Circuit Court and return medical records to facilities fbr destruction. Archive file. Return records to each facility for destruction. If no Appeal Is Filed Calendar 180 day commitment deadline for follow-up in monitoringI project set out below. I -~ , I , j Board of County Comm issihners Re: Prosecution of Civil Commitment C::ases February 26, 2013, phe 9 POST-MAY 2012 DAILY MONITORING I After May, 2012, a daily monitoring system was established by the Legal Counsel's Office anq adhered to by the BH team. While not legally required, this system is designed to ensure that "hth I regard to all persons placed on a hold in Deschutes County someone other than the BH team is \. checking to: . I * ensure an attorney is appointed by the Court within 12-24 hours, * ensure that all decisions required to be made by Day 3 of the hold are made, i * ensure no AMIP is held longer than the 5-day deadline without Court interventiJn, * ensure the statutory requirements for 14-Day Diversions are followed, : * ensure that the appropriate Judgment of Dismissal is prepared and submitted to tf1e Court based on whether the AMIP is released by the expiration of the 5 Judicial! Days or earlier by the treating psychiatrist. I I Since establishing the daily monitoring system, the Legal Counsel's Office has overseen holds::j.s follows: I May 2012 to December, 2012 248 January 2013 to February 25, 2013 60 -­ The daily monitoring activities of legal staff are summarized on Exhibit A hereto. CONCLUSION The LegaJ Counsel's Office workload is far different than it was in 1988. The office now hand It virtually all tort litigation in-house. We have experienced a very significant increase in I Assessment and Taxation appeals. Likewise, the number of labor and employment-related challenges has vastly increased. Legal Counsel's Office now advises more entities, organizationis, and departments, and significantly more management employees than in 1988. It simply does nqt have the capacity to provide what essentially represents a prosecution function on behalf of the . State. The involuntary civil commitment system utilized in Deschutes County is I1mv compliant with state law. Even with the ongoing daily monitoring which provides some level of information i about whether an AMIP will be a candidate for a commitment hearing, staff still finds themselve$ scrambling at the last minute to prepare for hearing. Given limited staffing in the Legal Counsc]1s Office, this creates an unreasonable strain. Generally, one of the three Legal Counsel's attorney~ is involved throughout the process, and once an AMIP is scheduled for commitment, virtually alli other work is set aside to prepare for and attend the hearing. We recently had a case that requirc1 three separate CouI1 appearances and a commitment hearing that spanned two days. : \It is believed the District Attorney's Office, with its larger staff and available attorneys is better equipped to facilitate both the monitoring and hearing preparation functions. i Board of County Commissioners Re: Prosecution of Civil Commitment jases February 26, 2013, Pa e 10 We recommend that the Board rescind Board Order Number 88-006, which initially assigned c vii commitment hearings to County Legal Counsel. If the Board requests, then such cases thereaft~r are handled by the District Attomey's Office. . cc: Patrick Flaherty. District Attorney; Scott Johnson. Health Director; I Tom Anderson, Interim County Administrator I I 1 I Board of County Commissiqners Re: Prosecution of Civil Commitment Gases February 26, 2013, Pa~e 11 EXHIBIT A STEPS OF DAILY MONITORING ACTIVITIES r--------------.--~-__,_-----------------+__, BH emails or faxes a monitoring report. The report contains the name, date of hold, and anticipated outcome for each person currcntly dctaincd at St. Charlcs/Sagcview. For new holds, the detention paperwork and civil rights fonns are included. The second section of the monitoring repo11 contains the name, location and end of commitment dates for the previously committed AMIPs or those on a 14 day Diversion. I [Note: The detention noticc and civil rights fonns are filed with the Court by hospital personneL Because of sevcral failures by hospital staff to do so, it becomes the responsibility of Legal Dept. staff to be certain the Court is awarc of the hold so defense counsel is appointed.]I For those cases that BH provides the detention paperwork, civil rights fonn, and Physician's . Release. Trips to the Courthouse. On Day 3 of the hold a BH Investigator's I Report will be faxed to Legal (and filed with Each individual's detention notice and civil I rights fonn is scanned and an individual file ~s created for that individual. I Upon notification of the appointment of I defense counsel, the individual's noticc and i civil rights fonn is emailed to defense counsk I The new individuals are added to the Legal I Department's hold chart which indicates the: date of the hold, when Day 3 would be, and I when Day 5 would be.7 I I Day 3, Day 4 and Day 5 deadlines are calendared on John Laherty's calendar. I ! I I I I I For these cases, the detention notice, civil I rights tonn, and release document are scanned and an individual file is created. The I I infonnation is added to the Legal Departmert chart, a Judgment of Dismissal completed and filed with the Court. The hold is considere4 closed once the Judgment of Dismissal is I returned signed from the Court, it is scanne~ into the individual's file and the hardcopy I appended to the other documents and filed. i Judgments of Dismissal are hand deliveredl:to the Court. For this reason, trips to the I Cout1house are made several times pcr wct· I This report is reviewed by statf to detenn~ what the recommendation of the BH team ifs I 7 Day 3 and Day 5 both have specific statutory requirements that must be followed. Board of County Commissidners Re: Prosecution of Civil Commitment qases February 26,2013. Page 12 I the Court by BH). with regard to each individual AMIP. The I report is then emailed to defense counseL If it is that the Court take no further action, then a Judgment of Dismissal is prepared and filed with the Court. I If it is that the AMIP has decided on voluntah treatment, a Judgment of Dismissal is prep81fd and filed with the Court. i 1 If it is that the AMIP is qualified for a 14 D~y Diversion, the 14 Day Diversion process belpw is followed. I If it is that the AMIP is going to involuntar~ I commitment, then the civil commitment process set out above is follows. I 1 14 Day Diversion Ifby Day 3, BH advises that the AMIP i 1 going with a 14 Day Diversion, defense , counsel is notified and advised that defensel counsel's Certificate of Acceptance must b4 filed within 24 hours. The Court is put on ~lert since if the Certificate is not filed the case goes to involuntary commitment . Once the Certificate of Acceptance of 1 Diversion is filed, the 14 day deadline is ! calendared on John Laherty's calendar. StJtT then monitors that by Day 10 of the Diversion, the BH Investigator files an amended report advising the Court whether the AMIP will be released by Day 14 or if a hearing is rcquirFd. I i Trip to COUlihouse A General Judgment of Dismissal is filed ~ith the Court at the conclusion of the 14 Day i Diversion. i I The daily monitoring system results in at Ij;:ast Process. Trips the COUli due to the Daily Monitoring one per week and sometimes daily trips to !the Courthouse. This is required for delivery ~f the General Judgment document that must: be I filed on all files opened by the Court oncelthe _______________.~__..L::.....ho::.....l::.....d_~is::...,pc.:l..:.;.ac::...:e:..::.d::......_________-+1__.. I Board of County commissi~ers Re: Prosecution of Civil Commitment Cases February 26, 2013, Pagei 13 Section 2 of the daily monitoring report keeps Staff needs to contact BH within 10 days of*e track of the commitments entered by the Court deadline ofthe commitment sentence to be i celtain the AMIP will be released or whetherl'a hearing needs to be scheduled for continued commitment. • I A Motion for Continued Commitment wouldl then be filed, and a new round of subpoenas for medical records, MD subpoena, etc. need be i completed in anticipation of the new hearing'l The Order granting continued commitment is I then provided to BH (to update the daily • monitoring report and the AMIP's file at BH), and a copy to the medical facility where the I AMIP is held. i I Miscellaneous There are also times when the AM IP"" while I being held on commitment, goes into a trial I visit at a less restrictive facility. If that transrer " needs to be tenninated, a Motion needs to be "filed with the Court, and a hearing may be : I scheduled. ! MEMORANDUM TO: Susan Ross FROM: Teresa Rozic DATE: April 10, 2013 RE: Morrow Request to Repurchase -Work Session Keith and Kathleen Morrow ask that they be allowed to repurchase property taken by Deschutes County for non-payment of property taxes. They believe that they purchased the property in 1997, with other property, and that they have been paying taxes on it since then. The Morrows own lots east and west of the lot in question. A lot line adjustment in 1994 (Escobedo) consolidated Lots 32 and 33, Deschutes River Recreation Homesites, into a single one-acre taxlot with a single tax account number. The Morrows believe they purchased the one-acre lot from Escobedo in 1997. Only Lot 32 was described in the deed. That conveyance triggered the Assessors Office to create a new taxlot and tax account for Lot 33 and to begin assessing taxes to the former owner, Escobedo. The Escobedos moved to another state after they sold the property; they never got notice of the foreclosure. Deschutes County took title by Tax Deed dated February 23, 2006. Staff recommends the Board of County Commissioners allow the Morrows to repurchase Lot 33 pursuant to ORS 275.180, for the amount of taxes and interest accrued to the date of the Tax Deed with interest of six percent per annum (less than $2,000). • The Morrows have owned Lot 34 since 1983 and over time have acquired Lots 36, 35 and 32. There is nothing on the ground to indicate the lot lines. • The Morrows were aware of the lot consolidation when they bought from the Escobedos. They had no reason to question the single tax statement with a single tax account for what they thought was the Escobedo land. • We have a letter from the Escobedos, stating their intention to sell Lots 32 and 33 to the Morrows. • We have a letter from AmeriTitle, stating that they will not take responsibility for the incorrect legal description because the request was for a title report for Lot 32 only. • Offering Lot 33 for sale at public auction would not be fair to the Morrows. If someone bought the lot, it would break up the block they have put together since 1983. (86.5) 1100.00 84.37 2100 2101 2300 ~ I I r .• YV )16~~ . ~ ~ 0 & \32 \8 ~ ~ C'\j 33 31 l ~-,0/ ,".;I ( 28-=­ 100.00 3300 13400 (3500 10~~10{j~bUa ~I 3700 ~O;O 131 I 132 l 133 ~t 134. ~r 135 ~I 136~ C'\j I J 100.00 J 100.00 1 100.00 169.00 100.00 , , 100.00 Morrow Request To Repurchase Key issues: Mitigation of risk for the public and public safety responders from both wildland and structure fires. 175,000 acres of unprotected private lands in Deschutes County. Deschutes County liability from doing nothing to doing “something.” Deschutes County Sheriffs Office Fire Chiefs from adjacent jurisdictions Oregon Department of Forestry State Fire Marshalls Office Central Oregon Fire Management Services i.e. FS and BLM County Forester Deschutes County Legal Counsel Inquiries from citizens in the unprotected Deschutes County Administrator and BOCC Status Quo Formation of 3 or more fire districts One fire district for all unprotected Closest forces response, responsible party pays. Evaluate all wildland, structural, EMS response in County and select the best Await ODF re-classification process. Status Quo To date, minimal cost from Tort Claims or Workmen's Comp. claims although average 7 responses per year. Potential for significant cost for wildland fire in excess of $500,000/day. Cost could be reimbursed under the Stafford Act (75%) Available for Conflagration Act resources but 12 -24 hour delay, cost are free to the county. Liability to County under Oregon Tort Claim Act is low or non-existent. Still no organized/structured response, risk to public and responders still high. Can still enforce open burning and defensible space requirements under county ordinances. Risk not mitigated. Formation of 3 or more fire districts Reduction of risks, tort claims and workman comp. claims. Ultimately resulting in a structured response within existing system in County. Probability of success low due to tax base and assessments would likely result in less than sufficient organization and infrastructure for adequate response. Can use Stafford and Conflagration Act. Formation of one special district, utilize authorities for assessment Develop agreements with adjacent jurisdictions to provide fire protection, utilizing the assessment for reimbursement. Response would be within existing response system in county. Spreads the risk across a larger landscape for assessment purposes. Significantly reduces risk. Bill responsible party if necessary. Political consequences of assessment w/o vote. Could add value to assessment with a vote of public. Can still use Stafford Act and Conflagration Act. Closest Forces No additional assessments Risk significantly reduced. Develop agreements with adjacent jurisdictions for fire protection. Bill responsible party most of the time. Within existing response systems in county. Can utilize Stafford and Conflagration Act. Continue to enforce open burning and defensible space ordinances. Evaluate wildland, structural and EMS county wide and select best option. Spreads risk across entire county. Possible long term solution. Potential for “turf battles.” Level existing assessments county wide. Develop county wide solutions/options to current EMS response/costs which currently reduces fire staffing capability. Significant reduction of risks. Utilizes existing systems for response in county. May consider both private and federal lands. May use Stafford and Conflagration Acts. May streamline existing policies, redundancy and overhead costs. ODF re-classification Uncertain of the results of the re-classification process, may wind up with more unprotected lands. May reduce risk from wildland fire but only west of the Deschutes River. Does not address structural fire response. Utilizes existing response system in county. Utilize written Delegation of Authority from BOCC and Sheriff authorizing SO personnel and County Forester to evaluate and order sufficient/appropriate operational resources to suppress fires. Seek restitution from responsible party. Utilize existing response system in county. Would need agreements with adjacent jurisdictions. Continue to enforce open burning and defensible space ordinances. Schedule work session with Fire Chiefs, State and Federal agencies and Law Enforcement to seek additional feedback on alternatives. Schedule public meeting on subject to seek additional feedback on alternatives. BOCC makes a Public Safety Choice based on stakeholder involvement. QUESTIONS? DESCHUTES COUNTY Unprotected Lands Options January 2013 DRAFT DRAFT DRAFT DRAFT DRAFT Synopsis: As Deschutes County has evolved and developed over the years a significant portion (175,000 acres) of private lands remain unprotected from structure and wildland fires. There are approximately 300 private residence which are occupied homes and in some cases in eastern Deschutes County, homes, barns and infrastructure associated with large ranching and farming operations. The entire community of Alfalfa is unprotected. These areas are covered by ambulance service districts and law enforcement services but no fire protection. Deschutes County has ordinances in place to regulate both open burning and defensible space requirements. The purpose of this report is to display a range of alternatives, clearly articulate legal authorities, display the risk management options and associated costs for each alternative, and provide suggested interim options/alternatives until such time an agreeable alternative can be implemented. Alternatives under consideration 1. Status Quo: citizens aren’t paying, no services provided. 2. Organize/facilitate the formation of three or more fire districts (Alfalfa, Lower Bridges and Plainview) beginning with the neighborhood that sufficient public support formation of a fire district. 3. Form a “special district” of the unprotected lands and using existing authorities under the State of Oregon Revised Statutes collect sufficient revenues from private property owners to provide protection using assistance by hire process with existing wildland and structural fire departments in Deschutes County. 4. Utilizing “closest forces concept,” when a wildland or structural fire is reported in the unprotected land, an appropriate response will be initiated and the private citizen receiving the service will be billed for the service. 5. Evaluate wildland, structural, and ambulance service districts in Deschutes County and select the most efficient and effective methodology and organization to provide these services. 6. Oregon Department of Forestry will begin the process of Forestland Classification (ORS 526.305 – ORS 526.350) as required by the laws of Oregon, in Deschutes County in 2013. This alternative allows for the completion of the classification process and those lands that remain unprotected after the process would be evaluated for both structural and wildland protection. Alternatives under consideration and costs, risks, consequences, probability of success of each. 1. Status Quo: citizens aren’t paying, no services provided. Costs: Under this alternative, currently there are minimal costs and are associated with compliance with open burning and defensible space violations. The Sheriff’s Office and County Forester does respond multiple (average 8-10 time/year) for reported structure and wildland fires and those costs are built into existing budgets. The unknown costs will come from three different scenarios; First, when a large wildland fire begins either within these unprotected lands or comes from adjacent protection jurisdictions, the costs associated with property loss and the potential loss of human life; Second, the actual costs of wildland firefighting. Choosing to “do nothing” may not be an acceptable alternative when both homes and other properties are burning and those suppression costs could exceed $500,000 per day; Third, the cost to Deschutes County if any of the county employees are seriously injured or killed providing some sort of emergency response i.e. evacuations without fire suppression resources and/or attempting to rescue trapped people in structures. The overall costs of this alternative are truly unknown but high potential exists in the event of a significant wildland fire in areas with very high to extreme fire danger due to wildland fuels. In the event of a costly and/or large wildland fire, the County, through the Oregon Department of Forestry could ask for a FEMA declaration under the Stafford Act and receive financial reimbursement up to 75% of County costs. Another option is utilizing the County Defense Board and requesting a declaration of the Conflagration Act which would bring structure protection resources to the fire and costs covered by the State of Oregon. The County would experience at least a 12-24 hour delay in the arrival of these resources, which would be coming from “out of area” locations. Risk Management: Under this alternative, with no organized wildland or structural response, Sheriff’s Office, County Forester and other first responders are potentially taking undue risks while engaged in either evacuation, rescue or in some cases actual wildland or structural firefighting without the necessary resources, training or mutual aid when agreements for reimbursement are not in place. In reality the Sheriff’s Office has public safety jurisdiction for wildland and structural evacuations within the County, regardless of protection responsibilities. On most occasions, in the unprotected lands, some type of immediate action is required (fire suppression or mitigation) and in every case taken by insufficiently trained personnel (wildland/structural fire) and inadequate or no supplemental firefighting resources responding for assistance. Probability of Success: In this alternative, the probability of success does not exist. The consequences of failure are high and both costs and risk to the public and public safety responders will continue to increase. 2. Organize/facilitate the formation of three or more fire districts (Alfalfa, Lower Bridges and Plainview) beginning with the neighborhood that sufficient public support formation of a fire district. Costs: In this alternative, assistance by County employees and other state agencies with both experience and authorities to assist with the formation of a fire district would be covered by existing budgets. The costs associated with private citizen’s participation would be voluntary. If in fact a fire district were formed, the associated risks with property and natural resource losses from either a structure or wildland fire would be significantly reduced. Once formed and functioning, the new fire district would be part of the existing dispatch/mobilization process in Deschutes County, able to access mutual aid through agreements and access to both FEMA declarations and Conflagration Act assistance in Alternative 1. The fiscal reality is that with the geographic areas as described (Alfalfa, Lower Bridges and Plainview) the associated taxes levied from the existing private land owners would likely not be sufficient to form a fully functioning fire district, if a fire district were formed for each geographic area. The overall costs of this alternative would be significantly reduced but frankly the level of service provided and new fire districts ability to reciprocate under existing mutual aid agreements would likely not be appropriate. Total costs are unknown. Risk Management: Under this alternative, Law Enforcement and other public safety responders would still have jurisdictional responsibility for evacuations and other public safety concerns. With some type/form of both structural and wildland response to assist Law Enforcement with fire suppression actions, this alternative would significantly reduce the exposure to non-firefighting personnel, private property and the public. Probability of Success: In this alternative, the probability of success is low. The primary reason is by forming fire districts in each of the identified geographic areas, the reality is the potential tax base to generate revenues would likely not support a fully functioning fire district with equipment, facilities, personnel, training and response capability. In each case the geographic areas are unincorporated and finding sufficient support from the private land owners to sustain the formation of a fire district based on population and assessed values to create a successful and functioning fire district is likely not realistic. 3. Form a “special district” of the unprotected lands and using existing authorities under the State of Oregon Revised Statutes collect sufficient revenues from private property owners to provide protection using assistance by hire process with existing wildland and structural fire departments in Deschutes County. Costs: In this alternative, spreading the risk over three geographic areas (Alfalfa, Lower Bridges and Plainview) would both increase revenues and provide funding for both wildland and structural response to existing unprotected areas by utilizing agreements with adjoining fire districts. The funding from taxes levied on private property owners which amount to ¼ of 1% (.0025) of assessed value. As per ORS 476.330 the County can form a special district and make this assessment without voter approval. An additional assessment of .0025 can be utilized after voter approval for those private property owners inside this special district. Utilizing the approach, the least amount of revenue would be in excess of $150,000 annually although exact numbers must be obtained to solidify the revenue stream. In this alternative the potential cost savings from property loss would be significant. In this alternative the County would also be able to utilize both the FEMA declaration and Conflagration Act to provide additional resources and reimbursements for cost associated with wildland fire. By utilizing existing fire district organizations, mutual aid systems, dispatch/coordination systems, communication frequencies and overall emergency response, would significantly enhance structural and wildland response in existing unprotected lands. Risk Management: Under this alternative, Law Enforcement and other public safety responders would still have jurisdictional responsibility for evacuations and other public safety concerns. With some type/form of both structural and wildland response to assist Law Enforcement with fire suppression actions, this alternative would significantly reduce the exposure to non-firefighting personnel, private property and the public. This alternative would provide an even greater reduction of risk to the public and public safety responders because existing departments, agencies and districts would be providing wildland and structural protection within existing systems. Probability of Success: In this alternative the probability of success is high, estimated to be 75%. There are both political and financial risks of forming a special district and assessing fees without voter approval although both are allowed under ORS. The probability is also based on utilizing existing systems and develops agreements with existing departments and agencies within the County to provide both structural and wildland protection. The possibility exist that even by spreading out the risk to all unprotected lands, insufficient revenues would be available to provide adequate protection. 4. Utilizing “closest forces concept,” when a wildland or structural fire is reported in the unprotected land, an appropriate response will be initiated and the private citizen receiving the service will be billed for the service. Costs: In this alternative essentially all costs for suppression of wildland and structural fires would be borne by the private land owner where the fire originates. There would be some administrative cost to Deschutes County for managing and providing oversight to the billing process. Conceptually, the responding agencies/districts within the county would bill Deschutes County, be reimbursed as soon as possible and the county would recover the costs from the private landowner. Risk Management: Under this alternative, Law Enforcement and other public safety responders would still have jurisdictional responsibility for evacuations and other public safety concerns. With some type/form of both structural and wildland response to assist Law Enforcement with fire suppression actions, this alternative would significantly reduce the exposure to non-firefighting personnel, private property and the public. This alternative would provide an even greater reduction of risk to the public and public safety responders because existing departments, agencies and districts would be providing wildland and structural protection within existing systems. Probability of Success: In this alternative the probability of success is high, estimated to be greater than 85%. The probability is also based on utilizing existing systems and develops agreements with existing departments and agencies within the County to provide both structural and wildland protection. The authorization/law to recover suppression cost is clearly articulated in ORS 476.280 and 290 and may in fact result in local citizens within the geographic areas to seek the formation of either a special district or a fire district. 5. Evaluate wildland, structural, and ambulance service districts in Deschutes County and select the most efficient and effective methodology and organization to provide these services. Costs: In this alternative the entire wildland/structural and ambulance service districts would be evaluated on private lands and effectively spread the risk across the entire county. The likely outcome would be 100% coverage for all private lands for both structural and wildland fire protection and resolving any boundary issues for protection. This alternative would solidify rates for protection, although some property owners may in fact have a slight increase and others realize a decrease in assessments. There would be potential costs saving as redundancies are eliminated and wildland, structural and ambulance service districts could potentially be aligned to just a single department/agency within the County. Potential cost savings is unknown but with a single, integrated structural, wildland and ambulance service response, the potential costs saving would be significant. Risk Management: In this alternative, the overall risk to the public, property and first responders would significantly decrease. In this alternative, a Deschutes County Fire Department may be the preferred organizational outcome over time. Probability of Success: In this alternative the probability of success in frankly unknown; the successful outcome of this alternative will be based on the willingness by departments and agencies to look beyond the current situation and protection and be willing to openly evaluate this alternative for the future. From a costs and risk management perspective, if both the corporate will and revenue streams are sufficient the potential and probability of success for the public and protection may likely be highest with this alternative. 5. Oregon Department of Forestry will begin the process of Forestland Classification (ORS 526.305 – ORS 526.350) as required by the laws of Oregon, in Deschutes County in 2013. This alternative allows for the completion of the classification process and those lands that remain unprotected after the process would be evaluated for both structural and wildland protection. In this alternative the costs and risk management impacts are unknown. The classification process may take two years for completion and what steps or actions taken in the unprotected lands during this time frame must be addressed. Probability of Success: In this alternative the probability of success is unknown. The downside to this alternative is the potential delay (2 years) before other protection issues are addressed. Interim Steps: Until such time that a preferred alternative or a sequential implementation of a blend of alternatives is decided, Deschutes County may consider the following actions: 1. In the event of a structural or wildland fire in the unprotected lands authorize the Sheriff and County Forester to order sufficient resources to address the structural or wildland incident from adjoining jurisdictions and seek restitution from the responsible party. 2. Consider supplemental funding streams i.e. bed tax, fuel, emergency response fees or in fact bill the property owner for the service. 3. Through a formal delegation of authority, specify the parameters of “appropriate response” and associated costs for Deschutes County responders. Legal Authorities Based on the authorities given to Deschutes County by the Oregon Constitution, Oregon Revised Statutes and Deschutes County Code it appears the County has the legal authority to implement any alternatives under consideration. The legal question is what are the legal consequences of a “no action” alternative? Can the County be sued for not providing sufficient mitigation for both wildland and structural fire protection in the unprotected lands and what is the probability of a successful lawsuit for a plaintiff? Deschutes County The Oregon Tort Claims Act confers upon a public body and its officers, employees and agents acting within the scope of their employment or duties immunity from liability for “any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” ORS 30.265(6)(c). ORS 30.265(6)(c), only applies to claims based on Oregon state law, which under the circumstances is the most likely source of claims. For the County and the Board of Commissioners to enjoy discretionary immunity in deciding among the options for wildland and structural fire protection in unprotected lands (including maintaining the status quo), the county would need to establish the following: 1. The commissioners are acting within the scope their employment or duties; 2. As part of their duties the commissioners have been granted the authority to exercise “discretion” on behalf of the County with regard to choosing between options for wildland and structural fire protection in unprotected lands; and 3. Any decision made by the commissioner regarding the available options involves the exercise of a discretionary function or duty. The courts have interpreted decisions entitled to immunity as those that involve the exercise of discretion in developing or implementing policy objectives through the assessment of costs and benefits, the evaluation of risks, and the choice among competing goals and priorities. In the context of evaluating alternatives for responding to wildland and structural fires lands outside of existing fire districts and fire departments (including areas within the jurisdiction of ODF), the Board is both responsible for and is actually engaged in the exercise of discretion. The County would likely prevail against a claim of negligence for choosing to maintain the status quo, based upon a discretionary immunity defense. The County could still be liable for workers compensation claims based upon work-related injuries suffered by county employees as they respond to wildland and structural fires. DCC 1.08.010. Power Over Matters Of County Concern. In addition to the authority and powers granted to the County under the Constitutions of the State of Oregon and of the United States, the County shall have authority within the County over matters of county concern to the fullest extent allowed by the Constitutions and laws of the State and of the United States, as fully as if each particular power comprised in that general authority were specifically set out in DCC 1.08. (Ord. 86-047 §1, 1986) 1.08.020. General Powers. I. To make and enforce necessary regulations, designate violations, impose penalties and restrain nuisances. DCC 2.04.055. Executive Responsibility – Chain of Succession – State of Emergency. A. The County Administrator is principally responsible for assuming centralized control over all county departments, divisions and offices once the Board declares a state of emergency. If circumstances prohibit the timely action of the Board of County Commissioners, the Chair of the Board of County Commissioners may declare such a state of emergency, provided the Chair seeks and obtains approval from a majority of the Board at the first available opportunity. A state of emergency exists whenever the unincorporated area of the county or any part thereof is suffering or is in imminent danger of suffering an event that may cause injury or death to persons, or damage to, or destruction of property to the extent that extraordinary measures must be taken to protect the public health, safety and welfare. Such an event shall include, but not be limited to the following: 1. A civil disturbance or riot; 2. A disaster such as flood, windstorm, snow or ice storm, earthquake, volcanic eruption or related activity, fire, explosion or epidemic; 3. The declaration of a war-caused national emergency; 4. Any major disruption of community services such as transportation, power supply, water supply, sanitation or communications; and/or 5. A health hazard, whether natural or manmade. Chapter 8.20. OPEN BURNING 8.20.010. Open Burning Prohibited-When. 8.20.020. Burning Permits-Conditions. 8.20.030. Violation-Penalty. 8.20.010. Open Burning Prohibited-When. A. No person, outside the boundaries of a rural fire protection district or a forest protection district, shall cause or permit to be initiated or maintained on his own property, or cause to be initiated or maintained on the property of another any open burning of commercial waste, demolition material, domestic waste, industrial waste, land clearing debris or field burning from June 1st through November 1st of each year (“burn restricted season”) unless weather conditions require prohibition of burning prior to June 1, or allow resumption of burning prior to November 1, as determined by the County Fire Defense Board. (Ord. 2009-009 §1, 2009; Ord. 88-013 §1, 1988; Ord. 84-027 §1, 1984; Ord. 84-009 §1, 1984) Chapter 8.21 HAZARDOUS VEGETATIVE FUELS 8.21.010. Definitions. 8.21.020. Purpose and Intent 8.21.030 Lands Subject to the Standards 8.21.040 Standards 8.21.050 Standard Waivers and Reductions 8.21.060 Fuel Break Requirements 8.21.065 Inadequately protected wildland declared nuisance; Hazard abatement 8.21.070 Duty of owner and operator to abate fire; Abatement by County 8.21.075 Recovery of Fire Suppression Costs 8.21.080 Violation; Liability for Cost of Suppression 8.21.085 Violation; Penalty State Land Use Planning Requirements Oregon has some of the most stringent land use planning standards and requirements in the nation. One portion of this program, identified as "Goal 4", deals specifically with areas which are zoned as "forest lands." State regulations require that local jurisdictions establish and enforce criteria that minimize the risks associated with wildfire, when new dwellings and structures are constructed. The regulations go on to require that dwellings be adequately protected from fire that roads meet certain access standards, that fuel breaks be established and maintained and that only fire retardant roofing materials be used. Another state land use planning goal, Goal 7, requires local jurisdictions to adopt comprehensive inventories, policies and implementing measures which will reduce the risk to people and property from natural hazards, including wildfires. Normally, a local jurisdiction must properly respond to this mandate within 36 months after being notified by the state that new or updated information on a particular natural hazard exists. ORS Chapter 401 — Emergency Management and Services 401.025 Definitions. As used in this chapter: (1) “Emergency” means a human created or natural event or circumstance that causes or threatens widespread loss of life, injury to person or property, human suffering or financial loss, including but not limited to: (a) Fire, explosion, flood, severe weather, landslides or mud slides, drought, earthquake, volcanic activity, tsunamis or other oceanic phenomena, spills or releases of oil or hazardous material as defined in ORS 466.605, contamination, utility or transportation emergencies, disease, blight, infestation, civil disturbance, riot, sabotage, acts of terrorism and war; and (b) A rapid influx of individuals from outside this state, a rapid migration of individuals from one part of this state to another or a rapid displacement of individuals if the influx, migration or displacement results from the type of event or circumstance described in paragraph (a) of this subsection. (2) “Emergency service agency” means an organization within a local government that performs essential services for the public’s benefit before, during or after an emergency, such as law enforcement, fire control, health, medical and sanitation services, public works and engineering, public information and communications. (3) “Emergency services” means activities engaged in by state and local government agencies to prepare for an emergency and to prevent, minimize, respond to or recover from an emergency, including but not limited to coordination, preparedness planning, training, interagency liaison, firefighting, oil or hazardous material spill or release cleanup as defined in ORS 466.605, law enforcement, medical, health and sanitation services, engineering and public works, search and rescue activities, warning and public information, damage assessment, administration and fiscal management, and those measures defined as “civil defense” in 50 U.S.C. app. 2252. (4) “Local government” has the meaning given that term in ORS 174.116. (5) “Major disaster” means any event defined as a “major disaster” under 42 U.S.C. 5122(2). [1983 c.586 §2; 1985 c.733 §21; 1987 c.373 §84; 1989 c.361 §8; 1991 c.418 §1; 1991 c.956 §10; 1993 c.187 §1; 1999 c.935 §29; 2005 c.825 §9; 2007 c.97 §10; 2007 c.223 §5; 2007 c.740 §20; 2009 c.718 §17] RESPONSIBILITY FOR EMERGENCY SERVICES 401.032 Statement of policy and purpose. (1) The general purpose of this chapter is to reduce the vulnerability of the State of Oregon to loss of life, injury to persons or property and human suffering and financial loss resulting from emergencies, and to provide for recovery and relief assistance for the victims of emergencies. (2) It is declared to be the policy and intent of the Legislative Assembly that preparations for emergencies and governmental responsibility for responding to emergencies be placed at the local level. The state shall prepare for emergencies, but shall not assume authority or responsibility for responding to an emergency unless the appropriate response is beyond the capability of the city and county in which the emergency occurs, the city or county fails to act, or the emergency involves two or more counties. [Formerly 401.015] 401.035 Responsibility for emergency services systems. (1) The emergency services system is composed of all agencies and organizations involved in the coordinated delivery of emergency services. The Governor is responsible for the emergency services system within the State of Oregon. The executive officer or governing body of each county or city of this state is responsible for the emergency services system within that jurisdiction. (2) In carrying out their responsibilities for emergency services systems, the Governor and the executive officers or governing bodies of the counties or cities may delegate any administrative or operative authority vested in them by this chapter and provide for the sub delegation of that authority. [1983 c.586 §3; 2009 c.718 §24] EMERGENCY MANAGEMENT BY CITIES AND COUNTIES (Emergency Management Agency) 401.305 Emergency management agency of city or county; emergency program manager; coordination of emergency management functions. (1) Each county of this state shall, and each city may, establish an emergency management agency which shall be directly responsible to the executive officer or governing body of the county or city. (2) The executive officer or governing body of each county and any city which participates shall appoint an emergency program manager who shall have responsibility for the organization, administration and operation of such agency, subject to the direction and control of the county or city. (3) The local governing bodies of counties and cities that have both city and county emergency management programs shall jointly establish policies which provide direction and identify and define the purpose and roles of the individual emergency management programs, specify the responsibilities of the emergency program managers and staff and establish lines of communication, succession and authority of elected officials for an effective and efficient response to emergency conditions. (4) Each emergency management agency shall perform emergency program management functions within the territorial limits of the county or city and may perform such functions outside the territorial limits as required under any mutual aid or cooperative assistance agreement or as authorized by the county or city. (5) The emergency management functions shall include, as a minimum: (a) Coordination of the planning activities necessary to prepare and maintain a current emergency operations plan, management and maintenance of emergency operating facilities from which elected and appointed officials can direct emergency and disaster response activities; (b) Establishment of an incident command structure for management of a coordinated response by all local emergency service agencies; and (c) Coordination with the Office of Emergency Management to integrate effective practices in emergency preparedness and response as provided in the National Incident Management System established by the Homeland Security Presidential Directive 5 of February 28, 2003. [1983 c.586 §12; 1993 c.187 §9; 2005 c.825 §11] 401.307 Emergency management agency appropriation; tax levy. (1) Each county and city may make appropriations, in the manner provided by law for making appropriations for the expenses of the county or city, for the payment of expenses of its emergency management agency and may levy taxes upon the taxable property within the county or city. (2) An appropriation made under subsection (1) of this section shall be budgeted so that it is possible to identify it as a distinguishable expense category. [Formerly 401.325] (Declaration of State of Emergency) 401.309 Declaration of state of emergency by city or county; procedures; mandatory evacuations. (1) The governing body of a city or county in this state may declare, by ordinance or resolution, that a state of emergency exists within the city or county. The ordinance or resolution must limit the duration of the state of emergency to the period of time during which the conditions giving rise to the declaration exist or are likely to remain in existence. (2) A city or county in this state may, by ordinance or resolution, establish procedures to prepare for and carry out any activity to prevent, minimize, respond to or recover from an emergency. The ordinance or resolution shall describe the conditions required for the declaration of a state of emergency within the jurisdiction. (3) An ordinance or resolution adopted under subsection (2) of this section may designate the emergency management agency, if any, or any other agency or official of the city or county as the agency or official charged with carrying out emergency duties or functions under the ordinance. (4) A city or county may authorize an agency or official to order mandatory evacuations of residents and other individuals after a state of emergency is declared under this section. An evacuation under an ordinance or resolution authorized under subsection (2) of this section shall be ordered only when necessary for public safety or when necessary for the efficient conduct of activities that minimize or mitigate the effects of the emergency. (5) Nothing in this section shall be construed to affect or diminish the powers of the Governor during a state of emergency declared under ORS 401.165. The provisions of ORS 401.165 to 401.236 supersede the provisions of an ordinance or resolution authorized by this section when the Governor declares a state of emergency within any area in which such an ordinance or resolution applies. [1997 c.361 §2; 2009 c.718 §32] 401.315 City or county authorized to incur obligations for emergency services; county determination of emergency. In carrying out the provisions of this chapter, counties or cities may enter into contracts and incur obligations necessary to mitigate, prepare for, respond to or recover from an emergency or major disaster. A county shall assess whether an emergency exists. [1983 c.586 §13; 1991 c.418 §2; 2009 c.718 §44 ORS 476. State Fire Marshal; Protection From Fire Generally STATE FIRE MARSHAL; POWERS AND DUTIES 476.020 State Fire Marshal; appointment; qualifications. (1) The office of State Fire Marshal is established in the Department of State Police. The State Fire Marshal shall be appointed by and be administratively responsible to the Superintendent of State Police, and shall serve at the pleasure of the superintendent. The State Fire Marshal shall retain all current authority of the office and shall be responsible for the implementation of its mission and programs. (2) The State Fire Marshal shall be qualified to direct the technical and executive work of the agency as determined by the superintendent and shall have education or training related to the programs of the agency and significant experience in managing fire protection or related programs. [Amended by 1963 c.523 §1; 1971 c.753 §54; 1987 c.414 §79; 1993 c.186 §1] 476.030 Powers and duties of marshal and deputies generally; rules; exemption of certain governmental subdivisions; inspection of adult foster homes. (1) The State Fire Marshal shall enforce all statutes, and make rules relating to: (a) The prevention of fires. (b) The storage and use of combustibles and explosives. (c) The maintenance and regulation of structural fire safety features in occupied structures and overseeing the safety of and directing the means and adequacy of exit in case of fire from factories, asylums, hospitals, churches, schools, halls, theaters, amphitheaters, all buildings, except private residences, which are occupied for sleeping purposes, and all other places where large numbers of persons work, live or congregate from time to time for any purpose except that structural changes shall not be required in buildings built, occupied and maintained in conformity with state building code regulations applicable at the time of construction. (d) Standards for equipment used for fire protection purposes within this state including standard thread for fire hose couplings and hydrant fittings. (2) The State Fire Marshal and deputies shall have such powers and perform such other duties as are prescribed by law. (3) If, in the opinion of the State Fire Marshal, a governmental subdivision of the state has enacted adequate regulations generally conforming to state and national standards concerning fire prevention, fire safety measures and building construction requirements for safety, and if the governmental subdivision provides reasonable enforcement of its regulations, the State Fire Marshal may exempt the area subject to such regulation either partially or fully from the statutes, rules and regulations administered by the State Fire Marshal. Prior to adoption of any such exemption, the State Fire Marshal may request from the Department of Public Safety Standards and Training consideration of and recommendations regarding the exemption. The exemption may extend for a two-year period, and may be renewed from time to time, but may be canceled by the State Fire Marshal following 30 days’ written notice if the State Fire Marshal finds that the governmental subdivision’s regulations or enforcement thereof are not reasonably sufficient. The governmental subdivision shall furnish a copy of such regulations to the State Fire Marshal and shall file with the State Fire Marshal any amendment thereto within 30 days before the effective date of such amendment. The State Fire Marshal shall designate a person or division within such governmental subdivision as an approved authority for exercising functions relating to fire prevention, fire safety measures and building construction. Upon request of a local official having enforcement responsibility and a showing of unusual fire hazard or other special circumstances, the State Fire Marshal shall make investigation and appropriate recommendations. (4) The State Fire Marshal may investigate or cause an investigation to be made to determine the probable cause, origin and circumstances of any fire and shall classify such findings as the State Fire Marshal may find appropriate to promote fire protection and prevention. (5) The State Fire Marshal shall provide training in fire safety inspection to the Department of Human Services, area agencies, the Oregon Health Authority, community mental health programs, developmental disabilities programs and designees of the Long Term Care Ombudsman. If an adult foster home has been inspected by the Department of Human Services, the Oregon Health Authority, an area agency, a community mental health program or a developmental disabilities program and the agency conducting the inspection reasonably believes that the adult foster home is not in compliance with applicable fire safety rules, the agency conducting the inspection may request the State Fire Marshal to inspect or cause an inspection to be made. If a designee of the Long Term Care Ombudsman, in the course of visiting an adult foster home, believes that the adult foster home is not in compliance with applicable fire safety rules, the designee shall report the problem to the appropriate agency to request a fire safety inspection by the office of the State Fire Marshal or by a designated representative of the office of the State Fire Marshal. (6) Upon the request of the Department of Human Services, the Oregon Health Authority, an area agency, a community mental health program or a developmental disabilities program, the State Fire Marshal shall inspect or cause an inspection to be made to determine if the adult foster home is in compliance with rules jointly adopted by the Department of Human Services and the State Fire Marshal establishing fire safety standards for adult foster homes. (7) As used in subsections (5) and (6) of this section: (a) “Adult foster home” has the meaning given that term in ORS 443.705. (b) “Area agency” has the meaning given that term in ORS 410.040. (c) “Community mental health program” means a program established under ORS 430.620 (1)(b). (d) “Developmental disabilities program” means a program established under ORS 430.620 (1)(a). [Amended by 1957 c.265 §1; 1963 c.523 §5; 1965 c.602 §1; part renumbered as part of 476.010; 1967 c.417 §1; 1973 c.667 §16; 1977 c.821 §3; 1985 c.118 §2; 1985 c.726 §18; 1989 c.696 §1; 1993 c.185 §25; 1997 c.13 §1; 1997 c.853 §40; 2001 c.900 §206; 2009 c.595 §976] 476.005 Definitions. As used in this chapter, unless the context requires otherwise: (1) “Fire protection equipment” means any apparatus, machinery or appliance intended for use by a fire service unit in fire prevention or suppression activities, excepting forest fire protection equipment. (2) “Governmental subdivisions” means a city, county or rural fire protection district in this state whose functions include regulation of building use and occupancy and the administration of fire safety laws, ordinances and regulations. EXTINGUISHING FIRES IN UNPROTECTED AREAS 476.280 Municipal fire departments and rural fire protection districts authorized to extinguish fires in unprotected areas. (1) The fire chief, or the representative of the fire chief, of any duly organized municipal or rural fire protection district may extinguish any uncontrolled fire found to be burning in any unprotected area, if: (a) The governing body of the city or the district board of the rural fire protection district, as the case may be, has authorized the fire chief and the representatives of the fire chief to extinguish uncontrolled fires that are found to be burning in unprotected areas situated outside of the boundaries of the city or district and that are causing or may cause an undue jeopardy to life or property; and (b) The fire chief or the representative of the fire chief believes that such fire is causing or may cause undue jeopardy to life or property. (2) In extinguishing a fire pursuant to subsection (1) of this section, the fire chief and the representatives of the fire chief may employ the same means and resources used by them to extinguish similar fires within their jurisdiction. [1971 c.683 §1] 476.290 Billing owner of property for cost of extinguishing fire; cost limited; collection; action for recovery of cost. Whenever a fire is extinguished pursuant to ORS 476.280, the governing body of the city or the district board of the rural fire protection district that provided the fire suppression service may, on forms furnished by the State Fire Marshal for such purposes, bill the owner of the property involved in the fire for the cost of providing the fire suppression service. The governing body of the city or the district board of the rural fire protection district that provided the fire suppression service may determine the cost of providing the fire suppression service by use of a state standardized-costs schedule as approved by the State Fire Marshal. The cost charged for providing the fire suppression service may not be greater than the pro rata cost that would have been charged by the city or district for the performance by the city or district of a similar fire suppression service within its jurisdiction. If the cost is not paid within 30 days after the second billing, the governing body of the city or the district board of the rural fire protection district that provided the fire suppression service may bring an action for the recovery of the unpaid cost from the owner of the real property upon which the fire suppression service was rendered. [1971 c.683 §2; 2005 c.22 §355] FIRE PREVENTION AND CONTROL ON CERTAIN LANDS NOT OTHERWISE PROTECTED 476.310 Zoning and rezoning of certain lands; hearing on petition of owners in nonzoned territory; duty of landowner to provide fire protection. (1) The governing body of each county may, in cooperation with the State Board of Forestry, zone and, as often as necessary, rezone any lands within the county lying outside the boundaries of incorporated cities, organized rural fire protection districts, federal and state-owned lands, lands protected under ORS chapter 477 and railroad rights of way, except that railroad rights of way may be zoned or rezoned if the owners of such rights of way file their written consent with the governing body. Lands, when zoned or rezoned, shall be divided into two zones as follows: (a) Zone 1 shall be composed of forest, range, grass or undeveloped lands, or any of such lands intermingled with grazing and agricultural lands. (b) Zone 2 shall be composed of rural lands not included in zone 1. (2) During the season of the year when there is danger of fire, every owner of zone 1 land shall provide adequate protection against the starting or spread of fire thereon or therefrom, which protection shall meet with the approval of the governing body of the county in which the zone 1 land is located. (3) An owner shall be deemed to have complied with the requirements of subsection (2) of this section if, on January 1 of each year, the owner files with the governing body of the county a bona fide fire protection plan that meets with the approval of the county governing body. The governing body of the county, or its appointed representative, shall periodically inspect the protection facilities provided under such a plan in order to confirm compliance by the owner. (4) If any owner of zone 1 land fails or neglects to file a fire protection plan, or to comply with the standard of protection approved by the county governing body, the governing body shall provide for forest protection pursuant to ORS 476.320. (5) Nothing contained in ORS 476.310 to 476.340 shall prevent interested property owners in any nonzoned territory from petitioning the governing body and State Board of Forestry to hold a hearing on the matter of zoning the territory if a majority of the landowners within the territory file such petition. The governing body, cooperating with the State Board of Forestry, shall give full consideration to the wishes of the landowners as shown by the hearing. [Amended by 1957 c.432 §1; 1963 c.222 §1; 1965 c.253 §143; 1991 c.459 §415a; 2005 c.22 §356] 476.320 Determination of form of fire protection for lands in zone 1; costs. (1) The form of protection from fire for lands lying in zone 1 shall be determined jointly by the governing body of the county, the State Fire Marshal and the State Board of Forestry, which determination shall be reduced to writing, signed by the officers of the agencies and entered in the journal of the governing body of the county. (2) The authority of the State Board of Forestry may be extended to include the establishment of forest protection on lands lying within zone 1 for lands not subject to a fire protection plan under ORS 476.310. For such purposes the board of forestry may contract with individuals, associations, agencies, corporations, rural fire protection districts, counties, cities, federal agencies, or any of them. The cost of protection in zone 1 shall be assessed and collected in the same manner as protection costs for lands protected under ORS chapter 477. (3) The moneys received by the State Board of Forestry under this section shall be paid into the State Treasury and credited to the State Forestry Department Account and shall be used exclusively for the purposes stated in this section. (4) As used in this section, the “authority of the State Board of Forestry” means the duties, obligations, requirements and penalties of ORS chapter 477. [Amended by 1957 c.83 §5; 1965 c.253 §144; 1967 c.429 §53; 1981 c.362 §1; 1991 c.459 §415b; 1999 c.355 §1] 476.330 Prevention and control of fires in zone 2; tax levy. (1) The county court or board of county commissioners of any county may prevent and control fire occurring within the limits of zone 2 in such county, and may for such purposes establish and maintain firefighting and fire control facilities and contract with existing fire control agencies, either individuals, associations, corporations, cities or rural fire protection districts. The State Fire Marshal, upon the request of any county court or board of county commissioners, shall meet with and advise such county court or board of county commissioners as to the establishment and maintenance of firefighting and fire protection equipment and facilities. (2) If the court or board establishes firefighting and fire protection equipment and facilities, it shall not discontinue such equipment and facilities until at least three years after notice of its intention to do so has been first published in a newspaper considered by the board to be of general circulation in the county. The notice shall be published by four insertions in the newspaper and 12 months shall elapse between each insertion. (3) While the county court or board of county commissioners of any county is maintaining firefighting and fire protection equipment and facilities, the court or board annually shall levy a tax upon the taxable property lying within zone 2 in the county, not to exceed one-fourth of one percent (0.0025) of the real market value of all taxable property within the zone, computed in accordance with ORS 308.207, for the purpose of furnishing such fire protection. (4) The court or board of county commissioners, upon approval of the majority of the electors of zone 2 voting at a special election called for such a purpose, may levy a special tax of not to exceed one-fourth of one percent (0.0025) of the real market value of all taxable property within the zone, computed in accordance with ORS 308.207. This special levy may be in addition to the regular levy under subsection (3) of this section. (5) To carry into effect any of the powers granted under this section, the court or board, when authorized by a majority of the votes cast by the electors of the zone voting at an election called for that purpose by the court or board, may borrow money and sell and dispose of general obligation bonds, which bonds shall never in the aggregate exceed one and one-fourth of one percent (0.0125) of the real market value of all taxable property within the zone, computed in accordance with ORS 308.207. (6) The tax limitations provided in subsections (3) and (4) of this section do not apply to taxes levied to pay principal or interest on outstanding bonds. [Amended by 1955 c.262 §1; 1959 c.288 §1; 1963 c.9 §29; 1967 c.356 §1; 1969 c.590 §1; 1971 c.647 §107; 1991 c.459 §416; 2007 c.154 §63] 476.340 Establishment of rural fire protection districts in zone 2; exemption from taxation of property included in district. Nothing contained in the provisions of ORS 476.310 to 476.330 shall be construed to prohibit the establishment of rural fire protection districts as provided by law within the boundaries of zone 2 as the same may be established in any county. In event of the organization of a rural fire protection district comprising lands in zone 2, property included within such fire protection district shall not thereafter be taxed or assessed. ORS 478 — Rural Fire Protection Districts 478.001 Definitions. (1) As used in this chapter, unless the context requires otherwise: (a) “Board of directors” or “district board” means the governing body of a district. (b) “County” means the county in which the district, or the greater portion of the taxable assessed value of the district, is located. (c) “County board” means the county court or board of county commissioners of the county. (d) “District” means a rural fire protection district proposed to be organized or organized under, or subject to, this chapter. (e) “Owner” or “landowner” means a legal owner of real property or the vendee of a contract of purchase of real property, if any, to the exclusion of the vendor. The term includes a unit owner, as defined in ORS 100.005. (2) As used in ORS 478.960: (a) “Commercial waste” means any waste produced in any business involving the lease or sale, including wholesale and retail, of goods or services, including but not limited to housing, and means any waste produced by a governmental, educational or charitable institution; however, it does not include any waste produced in a dwelling containing four living units or less. (b) “Demolition material” means any waste resulting from the complete or partial destruction of any man-made structure such as a house, apartment, commercial building or industrial building. (c) “Domestic waste” means any nonputrescible waste, consisting of combustible materials, such as paper, cardboard, yard clippings, wood, or similar materials, generated in a dwelling, including the real property upon which it is situated, containing four living units or less. (d) “Field burning” means the burning of any grass field, grain field, pasture, rangeland or other field by open burning or by use of mobile equipment or flaming equipment on any land or vegetation. (e) “Industrial waste” means any waste resulting from any process or activity of manufacturing or construction. (f) “Land clearing debris” means any waste generated by the removal of debris, logs, trees, brush or demolition material from any site in preparation for land improvement or construction projects. (g) “Open burning” means any burning conducted in such a manner that combustion air is not effectively controlled and that combustion products are not vented through a stack or chimney, including but not limited to burning conducted in open outdoor fires, common burn barrels and backyard incinerators. [1969 c.667 §2; 1975 c.635 §3; 1983 c.83 §95; 1983 c.350 §282; 1987 c.834 §5] 478.004 New district succeeds to and replaces abolished district. Each rural fire protection district created by ORS 478.002 shall in all respects succeed to and replace the territorially coterminous rural fire protection district abolished by ORS 478.002. Without limiting the foregoing: (1) A successor district is: (a) The owner of the property of the succeeded district, including real property and funds on deposit with the county treasurer or banks. (b) Successor party to the contracts of the succeeded district. (c) Successor party to the court proceedings of the succeeded district. (d) Successor obligor on the indebtedness of the succeeded district. (2) The rules, regulations, fire protection codes and identification numbers of the succeeded district are the rules, regulations, fire protection codes and identification numbers of the successor district, until changed by appropriate action under this chapter. (3) The directors and officers of the succeeded district are the directors and officers of the successor district. Each director and officer shall hold office for a term equal to the term of the office of the director or officer in the succeeded district. [1957 s.s. c.10 §2] FORMATION 478.010 Formation; territories that may not be included in districts. (1) A rural fire protection district may be formed in the manner set forth in ORS 478.010 to 478.100. (2) A district may not include: (a) Territory within a city unless otherwise authorized by law. (b) Territory within a water supply district organized under ORS chapter 264 if the district has previously been authorized by its electors to exercise the fire protection powers prescribed by ORS 264.340. (c) Forestlands included within a forest protection district under ORS 477.205 to 477.281 unless the owner consents and notifies the rural fire protection district, however, forestland protected pursuant to ORS 477.205 to 477.281 and not exceeding five acres in one ownership shall be included in the rural fire protection district without the owner’s consent if the ownership includes any structures subject to damage by fire. Forestland included in a rural fire protection district under this subsection subjects the forestland to assessments for fire protection by the rural fire protection district and the forest protection district. (d) Railroad rights of way or improvements thereon or rolling stock moving thereover unless the owner of such property consents. (e) Ocean shores as defined by ORS 390.605. [Subsection (2) enacted as 1953 c.144 §1; 1969 c.651 §3; 1969 c.667 §§3, 69; 1971 c.727 §137; 1973 c.124 §1; 1973 c.337 §1a; 2001 c.104 §217] 478.020 [Amended by 1967 c.610 §2; 1969 c.667 §4; repealed by 1971 c.727 §203] 478.030 [Amended by 1967 c.610 §3; 1969 c.667 §5; repealed by 1971 c.727 §203] 478.040 [Repealed by 1957 s.s. c.10 §4 (478.041 enacted in lieu of 478.040)] 478.041 [1957 s.s. c.10 §5 (enacted in lieu of 478.040); 1959 c.68 §1; 1961 c.523 §1; 1961 c.549 §1; 1969 c.667 §6; repealed by 1971 c.727 §191] 478.050 Qualifications for directors. A director of a district shall be an elector or an owner within the district. A district may determine, by ordinance that takes effect at least one year prior to the date of a regular district election, that firefighters of the district, volunteer or otherwise, and other district employees shall not serve as directors. [Amended by 1963 c.299 §1; 1969 c.667 §7; 1971 c.647 §109; 1971 c.727 §§139,197; 1973 c.618 §1; 1987 c.834 §1] 478.060 [Amended by 1963 c.299 §2; repealed by 1971 c.647 §149 and by 1971 c.727 §203] 478.070 [Amended by 1961 c.549 §2; 1969 c.667 §8; repealed by 1971 c.727 §203] 478.080 [Amended by 1961 c.549 §3; 1969 c.667 §9; repealed by 1971 c.647 §149; 1971 c.727 §203] 478.090 Effect of 1939 Act on districts then existing. Nothing in this chapter shall be construed as impairing the legality or organization of any rural fire protection district existing on June 14, 1939, nor to exclude from such districts any lands then included therein, nor the legality of any act of such district done in accordance with the prior law, nor shall it be deemed to affect the legality of the election of any officer of any such existing rural fire protection district. Nor shall anything in this chapter be deemed in any way to affect any indebtedness or financial obligation lawfully created by any fire protection district existing on June 14, 1939, and such existing rural fire protection district is confirmed and for the purpose of continued and future operation shall be deemed as organized under the terms and conditions of this chapter and entitled to all benefits and clothed with all the rights, powers and duties as by this chapter provided. 478.100 Immaterial defects in organization not to invalidate district organization. No final order of a county board establishing a district shall be set aside, or annulled upon appeal or review, on account of any defect or irregularity in the petition asking for organization of such district, or notice thereof, which does not materially affect the substantial rights of an interested party. The following irregularities are declared to be immaterial defects: (1) Errors of description of the intermediate points, courses or distances of the exterior boundaries of the proposed district set out in the petition for organization or as changed at the hearing by the county board, when the exterior boundaries can be otherwise definitely determined. (2) Errors in posting notices where it can be shown that all persons objecting to the proceedings had actual notice thereof prior to the hearing. (3) Errors in or omissions of the names of petitioners or number thereof, or in the percentage thereof of property owners in the district, required to sign the petition for organization, where there is entered upon the records of the county board an order or proclamation establishing or legally forming such district. [Amended by 1969 c.667 §10; 1975 c.326 §4] 478.110 [Repealed by 1969 c.667 §70] 478.115 County governing body to determine territory of district. Subject to the provisions of ORS 478.010, a county governing body may, under ORS 198.705 to 198.955, include in or exclude from a proposed district, or territory proposed to be annexed to a district, such territory as it determines. [1979 c.473 §2] 478.120 Inclusion of forestland in district. The authority to include forestland within a rural fire protection district pursuant to ORS 478.010 (2)(c) applies to forestland within the exterior boundaries of an existing district and to forestland on which structures subject to damage by fire have been added after July 20, 1973. [1973 c.337 §3] 478.130 Certain structures subject to fire damage to be added to tax rolls. Any land upon which structures subject to damage by fire have been built shall be added to the assessment roll for the tax year beginning July 1 following the calendar year in which construction on the structure was begun. [1973 c.337 §4; 1993 c.270 §68] 478.140 Procedure for adding land to district by consent of owner. Any owner consenting to add the forestland of the owner to the district under ORS 478.010 (2)(c) shall do so on forms supplied by the Department of Revenue. The owner shall file the original with the district. The district shall forward a copy to the assessor of each county in which the land is located, within 20 days of receipt. [1973 c.337 §5] 478.150 Conference with State Forestry Department required prior to formation of district or annexation of territory. Prior to the formation of any rural fire protection district or the annexation of any territory to an existing rural fire protection district of any territory within the exterior boundaries of a forest protection district established pursuant to ORS chapter 477, the petitioners of the proposed district or annexation shall confer with the State Forestry Department in determining the boundaries and lands to be included within the rural fire protection district. [1973 c.337 §6] 478.155 Formation of district with tax zones; contents of formation petition and order creating district; determination of tax levy in each zone; boundary changes. (1) When formation of a district is proposed after October 15, 1983, the petition or order for formation may include, in addition to other information required under ORS 198.750 or 198.835: (a) A statement that the district shall be divided into a specified number of zones for the purpose of imposing and levying ad valorem taxes at different rates in each zone based upon differences in services provided by the district in each zone. (b) The boundaries of the proposed zones. (2) If an election on formation of the district is held, the county board shall order the questions of whether or not to form the district and, if the district is formed, whether or not to divide it into zones to be submitted to the voters as separate questions to be voted upon separately. (3) After an election on formation is held, if both the formation of the district and the division of the district into zones are approved by the voters, the order issued under ORS 198.820 (3) creating the district shall declare that the district contains zones with the boundaries specified in the petition or order for formation. If only formation of the district is approved by the voters, the order creating the district shall be issued as provided in ORS 198.820. (4) If the district is formed without an election, the order issued under ORS 198.820 (3) creating the district shall declare that the district contains zones with the boundaries specified in the petition or order for formation. (5) When a district containing zones is formed under this section, the first board of directors of the district, prior to the levy of any ad valorem taxes by the district, shall provide notice of a public hearing and conduct the hearing as provided in ORS 478.480 (2) and 478.485. After the public hearing required under this section, the board shall enter an order in its journal stating the percentage of the total amount of ad valorem taxes of the district that will be collected in each zone. The board may then determine, make and declare the ad valorem tax levy for each zone. (6) The boundaries of the zones and the percentages of taxes collected in each zone that are established for a district under this section shall be effective until the regular district election in the first odd-numbered year following the year in which the district is formed. At that regular district election, a proposal for changing the boundaries of the zones may be submitted to the voters of the district as provided in ORS 478.480 (2), 478.485 and 478.490. If no proposal for a boundary change is submitted, the boundaries of the zones established upon formation of the district shall be retained until notice of a change is given to, and approved by, the voters of the district as provided in ORS 478.480 (2), 478.485 and 478.490. [1983 c.569 §8] 478.160 Filing of boundary or zone change with county assessor and Department of Revenue. For purposes of ad valorem taxation, a boundary or zone change must be filed in final approved form with the county assessor and the Department of Revenue as provided in ORS 308.225. [2001 c.138 §38] 478.965 Recovery by district of costs of suppressing unlawful fire; attorney fees. (1) If the fire- fighting apparatus or personnel, or either of a district, are required to respond and be used actively or on a standby basis in connection with the extinguishment or control of a fire that has been started or allowed to spread in willful violation of ORS 478.960 (1) to (5), the person responsible therefor shall be liable to the district furnishing such apparatus or personnel, or both, for the actual costs incurred by the district in controlling, extinguishing or patrolling the fire. Such costs may be recovered in an action prosecuted in the name of the district. The court may award reasonable attorney fees to the district if the district prevails in an action under this section. The court may award reasonable attorney fees to a defendant who prevails in an action under this section if the court determines that the district had no objectively reasonable basis for asserting the claim or no reasonable basis for appealing an adverse decision of the trial court. (2) An itemized statement of the actual costs incurred by the district, certified under oath by the treasurer of the district, shall be accepted as prima facie evidence of such costs in the action authorized by this section. [1967 c.420 §6; 1969 c.667 §58; 1981 c.897 §55; 1995 c.696 §24] Oregon Department of Forestry 526.320 Determination of forestland. Upon establishment of a forestland classification committee under ORS 526.310, the committee shall periodically investigate and study all land within the boundaries of its county or counties and determine which of the land is forestland. Such determination shall take into consideration climate, topography, elevation, rainfall, soil conditions, roads, extent of fire hazards, recreation needs, scenic values, and other physical, economic and social factors and conditions relating to the land involved. [Amended by 1965 c.253 §35; 1967 c.429 §31; 2009 c.69 §5] 526.324 Classification of forestland by committee; publication. (1) Upon the basis of its investigation and determination under ORS 526.320, a committee shall assign all forestland within the boundaries of its county or counties and within a forest protection district to one of the following classifications: (a) Class 1, timber class, includes forestland suitable for the production of timber and may include lands on which structures are present. (b) Class 2, timber and grazing class, includes forestland suitable for joint use for timber production and the grazing of livestock and may include lands on which structures are present. (c) Class 3, agricultural class, includes forestland suitable for grazing of livestock or other agricultural use and may include lands on which structures are present. (2) The committee shall adopt preliminary classifications and shall cause notice thereof to be published once a week for two consecutive weeks in one or more newspapers of general circulation within the boundaries of its county or within the boundaries of each of its counties and to be posted in three public places within the boundaries of its county or within the boundaries of each of its counties. The notice shall state the time and place for the public hearing required pursuant to ORS 526.328 and where maps of the preliminary classifications may be inspected. [1965 c.253 §37; 1967 c.429 §32; 2009 c.69 §6] 526.328 Hearing; final classification. (1) The committee shall hold a public hearing within the boundaries of its county or within the boundaries of each of its counties at the time and place stated in the notice published under ORS 526.324 (2), or at such other time and place as the hearing may then be adjourned to, to receive from any interested persons objections, remonstrances or suggestions relating to the preliminary classifications. Following the hearing the committee may make such changes to the preliminary classifications as it finds to be proper, and thereafter shall adopt final classifications. (2) All action by the committee in adopting final classifications shall be by formal written order that must include a statement of findings of fact on the basis of which the order is made and must include a list of tax lots affected by the classifications or reclassifications. The committee shall prepare one or more maps showing the final classifications, but the maps may not be included as part of the formal written order. The original of the order shall be filed with the county clerk of its county or with the county clerk of each of its counties. The order need not meet the requirements of ORS 205.232, 205.234 and 205.236 to be filed and recorded. A copy of the order certified by the secretary of the committee shall be sent to the State Forester. [1965 c.253 §38; 2009 c.69 §7] 526.330 [Repealed by 1965 c.253 §153] 526.332 Appeal. (1) Any owner of land classified under ORS 526.328 or 526.340 who is aggrieved by the classification may, within 30 days after the date of the order making the classification, appeal to the circuit court for the county in which the property is located. If the forestland classification committee has been established for more than one county and the property is located in more than one of those counties, the owner of the land may appeal to the circuit court for any of those counties. Notice of an appeal shall be promptly served on the secretary of the committee or, if the classification was made under ORS 526.340, on the State Forester. (2) The appeal shall be tried by the circuit court as an action not triable by right to a jury. [1965 c.253 §39; 1979 c.284 §163; 2009 c.69 §8] 526.335 State Board of Forestry rules. The State Board of Forestry may adopt rules as necessary to implement ORS 526.305 to 526.340. [2009 c.69 §11] 526.340 Classification by State Forester. (1) The State Forester may identify and classify forestland in a county, consistent with ORS 526.324 and 526.328, if: (a) The governing body of a county has failed to establish a forestland classification committee within two years after the State Forester made a request under ORS 526.310 (1); (b) A forestland classification committee has failed to adopt and file a final classification pursuant to ORS 526.328 within the five-year period after the date the forestland classification committee was first established; or (c) A forestland classification committee has failed to act in a manner consistent with ORS 526.310, 526.320, 526.324 and 526.328. (2) Classifications by the State Forester have the same force and effect as though made by a forestland classification committee. However, classifications made by the State Forester cease to be effective if replaced by classifications made pursuant to ORS 526.320, 526.324 and 526.328. [Amended by 1965 c.253 §40; 1997 c.274 §43; 2009 c.69 §9] 526.350 Policy in administering forest and fire laws; contracts for care of forestland. (1) All forest laws relating to forestland classified pursuant to ORS 526.328 or 526.340, and all rules promulgated under such laws, shall be so administered as best to promote the primary use for which that land is classified. Any contract by the State Board of Forestry or the State Forester with any forest protective association or agency for the care of any such forestland shall provide that the care shall be in accord with the provisions of this section relating to that land. (2) It shall be the policy of the board and the forester as to all forestland classified in: (a) Class 1, to give primary consideration to timber production and reforestation, in preference to grazing or agricultural uses, not excluding, however, recreation needs or scenic values. (b) Class 2, to give equal consideration and value to timber production and the development or maintenance of grazing, either as a temporary use for the interim between logging and reforestation or as a permanent or semi-permanent joint use. (c) Class 3, to give primary consideration to the development of grazing or agriculture, in preference to timber production. (3) The forester, on forestland classified pursuant to ORS 526.328 or 526.340, shall administer the forest laws of this state in accordance with the policy stated in this section as it applies to the land involved. [Amended by 1965 c.253 §41]