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'Cover up' alleged on nudity talk

Several Ashland residents have publicly questioned whether the City Council should hold a closed-door meeting to talk about the city’s partial ban on nudity and whether the ban can be extended.

The council is scheduled to hold an executive session on Sept. 22 to hear legal advice from City Attorney Richard Appicello about the legality of the current ban and its possible extension.

Under Oregon law, executive sessions are closed to the public. Members of the media can attend, but cannot report on the proceedings unless someone from the meeting talks afterward about what happened. The Daily Tidings plans to send a reporter to the executive session.

Councilors agreed on Aug. 18 to discuss the nudity issue in a future executive session. Councilor Greg Lemhouse, a police officer, had asked the council to consider expanding Ashland’s current nudity ban — which prohibits the display of genitals downtown and in parks — to include areas around schools.

Appicello told councilors he needed to research legal issues about the ban. At least two councilors, Eric Navickas and David Chapman, raised concerns that the existing partial ban may violate legal protections for free expression.

On Thursday, resident and Ashland Transportation Commissioner Colin Swales sent a message to the council’s public e-mail board saying he could find no provision under Oregon’s laws on executive sessions that would permit the closed-door discussion of nudity.

“I can find nothing (excepting ‘... current litigation or litigation likely to be filed ...’), that would allow such an unnecessarily secret cover-up of this matter,” Swales wrote.

In an e-mail sent to city officials and the Daily Tidings, Appicello stated Oregon public record law exempts internal advisory communications from public disclosure. Communications between an attorney and a client — in this case, Appicello and elected city officials — are also exempt from disclosure, he said.

Oregon public meeting law allows the city of Ashland to hold an executive session to consider records that are exempt from disclosure under the law, Appicello said.

In an interview with the Daily Tidings, Appicello said he will be giving a memo to councilors that will be confidential because it will contain legal advice.

Attorney Laura Cooper, who gives advice to the Oregon Newspaper Publishers Association, said executive sessions are appropriate for discussing current litigation and litigation likely to be filed.

Cooper said verbal discussions in executive sessions are supposed to relate only to current or likely litigation under Oregon law.

But she said Oregon law gives government officials greater leeway during executive sessions when it comes to written communications. Appicello can present councilors with written legal information and advice even without existing litigation or likely litigation.

“That’s possibly why he’s putting it in writing,” Cooper said.

She said councilors are not allowed to veer off into verbal policy discussions of the nudity ban.

Resident Matt Warshawsky, also a member of the Transportation Commission, was less concerned about the legality of holding the nudity discussion in private.

“Forget the legality of it. What sort of impression do you think you are making to the public when you take a rather contentious item and discuss it behind closed doors?” he asked in a public e-mail sent to councilors.

The on-going exchanges of e-mails prompted Mayor John Stromberg to weigh in.

He said Oregon’s Constitution provides broader protections for free expression than most states and the U.S. Constitution. Several court rulings about local laws involving nudity and nude dancing may apply to Ashland’s existing ban and the proposal to expand the ban.

“The City Council needs to understand the legal risks, but we don’t discuss that in public because that would essentially give people information about the best ways to file lawsuits against the city,” Stromberg wrote in an e-mail on the council’s public message board. “This is the very reason why the Executive Session provisions exist in Oregon.”

That reasoning didn’t satisfy Ralph Temple, who has spoken to the council in the past on behalf of the American Civil Liberties Union.

He wrote his own e-mail saying he joins several other residents in “protesting against an executive session based on protecting the city from exposing itself to a justified lawsuit. What is this — the Bush Administration?”

Councilor Eric Navickas also objects to the secrecy.

“I have to agree with the critics for allowing an executive session in this case,” Navickas wrote in an e-mail on the council’s public message board. “Anyone charged with violating the nude ban could challenge the ban arguing their nudity was a protest to our culture’s puritanical view toward the human body. Strong precedent has be set to uphold that position and the city would face significant legal fees defending itself. It is time to move to publicly repeal this unconstitutional law.”

The state of Oregon doesn’t ban nudity or have a crime of indecent exposure. Instead, people can be arrested for public indecency, but that requires that sexual arousal be involved. Masturbating in public or having intercourse would qualify as public indecency, Ashland Police Chief Terry Holderness said.

The city adopted its partial ban on nudity in 2004, but naked or nearly naked people have still been spotted around town.

Police were flooded with 20 to 30 complaints a day when a topless woman wearing only a G-string regularly appeared in public in 2008, Holderness said.

Ashland’s partial ban on nudity allows people to be topless.

A naked man scared children who were walking near Walker Elementary School earlier this summer. Another naked man has been spotted in recent weeks. Rear view images of the man were captured by a Tidings videographer when we walked down her street.

Although some people have interpreted the partial ban as an invitation to be topless anywhere or nude in some parts of town, Ashland is actually more restrictive than most Oregon cities when it comes to nudity, Holderness said.

To view e-mail exchanges between city officials and residents, visit http://list.ashland.or.us/pipermail/council_business/ and click on the most recent message thread. To e-mail a comment, visit http://list.ashland.or.us/mailman/listinfo/comment_to_the_council. All e-mails are public.

Staff writer Vickie Aldous can be reached at 479-8199 or vlaldous@yahoo.com.