Wednesday, January 18, 2017

Oregon DAS Enacting More Anti-Gun Rules — Legal Opinion Bleg Revisited

Long-time readers may recall me blegging for a legal opinion a while back. I was — and still am — trying to determine a clear answer to the question:

Is it legal or illegal for a state employee to carry a licensed, concealed firearm into state office buildings?
A couple of updates since then:
  • DAS policy #125-06-321 seems to have disappeared off the Interwebz. Perhaps it has been rescinded?
  • Other agencies have enacted their own agency-specific "no weapons" policies to replace it.
Now, I get this from the Oregon Firearms Federation: Kate Brown Prohibits Self Defense For State Workers:
The Department of Administrative Services, at the direction of Governor Kate Brown, has adopted a policy prohibiting all state employees from having a licensed firearm for self defense on "all property and facilities owned, leased, rented or otherwise occupied by the Oregon state government including grounds, buildings, parking structures and lots, vehicles and other equipment and any site where an employee enters on behalf of the employee's employment with Oregon state government except for an employee's home (including employees who live in state housing)…"

This policy extends to
"All employees, including limited duration and temporary employees, board and commission members, volunteers, and others working in an agency…" [emphasis in original]
[blink blink]

Apparently either the Oregon Department of Administrative Services did not learn from its past mistake, or they are getting pressured by the Brown Administration to re-enact anti-gun policies.

But is it a legal policy, as in "supported by applicable law"? Further analysis below the fold.

Before we begin, let me reiterate the disclaimer from the last bleg post: I am not a lawyer or judge, and this should not in any way be taken as legal advice. In fact, in this post I am asking if anyone can offer a legal opinion or any law/statute/rule/policy or case law I may have missed. Thanks.

Let's dig in.

Item #1: Department of Administrative Services Policy Manual, #50-010-05 (PDF warning)

The first thing I notice about this is the overt and omnipresent label, "State HR Policy". I'm not sure the implications of this, except that it would violate employment requirements about not bringing weapons — even licensed, concealed handguns with a CHL — into a public building.

But to the meat of the matter, and please forgive the length of this piece; this new policy is considerably longer than the previous one — three pages instead of a single page.
(1) This policy prohibits weapons in the workplace unless an employee is permitted to carry, handle, operate or transport a weapon as part of the employee’s assigned duties in the course and scope of the employee’s employment. A permit to carry a concealed handgun does not give an employee the authority to use or carry a handgun into the workplace. [bold emphasis in original]
That's pretty straightforward. I would note the bolded section seems to preemptively address the "But I have a CHL" argument, and was probably included for that exact purpose.

Moving on.
(2) The agency director administers this policy as the agency’s Weapons in the Workplace policy.
a. An agency with employees permitted to carry, handle, operate or transport a weapon as part of the employee’s assigned duties may write an agency-specific policy to supplement this statewide policy.
b. An agency with employees permitted to carry, handle, operate or transport a weapon as part of the employee’s assigned duties shall provide adequate and reasonable training to the employee on authorized use and how to properly carry, handle, operate or transport weapons used in the course and scope of the employee’s assigned duties.
i. Agencies have the authority to determine what trainings are adequate and reasonable.
ii. These trainings shall become part of the employee’s training record.
Well, now. I for one would hope that the Oregon State Police — whose facilities also fall under DAS authority — decide to write up an exception for themselves, else they could all be fired for weapons violations.
(3) Agencies shall take the following measures to promote a weapons-free environment:
a. Offer training and opportunities to ask clarifying questions on this policy and any agency-specific policy related to weapons in the workplace. A component of the training shall include the proper procedures for reporting an alleged violation of this policy or any supplemental agency-specific policy;
b. Create a guide and procedures or modify the sample guide and procedures attached to this policy for employees who may be faced with an emergency or hostile situation;
c. Provide employees a copy or electronic access to State HR Policy 50-010-05 Weapons in the Workplace; and
d. Document employees’ acknowledgment that they read the policy;
i. The agency decides the form of the acknowledgment, such as electronic, signed or other document acknowledgment.
ii. The agency shall maintain the acknowledgment in a consistent manner.
So if an agency doesn't offer specific training, guiding documentation, or an opportunity to ask questions, as required by the "shall" verbiage (same as "shall-issue"; they don't have a choice), what recourse to state employees have?

Also, if an employee is ever "faced with an emergency or hostile situation" and is harmed, in full or in part due to the state-imposed inability to defend him- or herself, what liability does the State assume?
(4) The following items are excepted from this policy:
a. Serving utensils when used for eating, serving, etc.;
b. Self-defense sprays carried for personal protection. Such items shall be stored out of sight and in the employee’s personal belongings, i.e., purse, briefcase, etc. The spray must be contained in a commercially manufactured capped aerosol device containing no more than 4 ounces of spray with less than 10% concentration of capsicum.
c. Sporting equipment stored in vehicles for personal use, i.e., baseball bats, martial arts equipment, golf clubs, etc. Firearms, biological or chemical weapons or any explosive devices are not considered sporting equipment for the purposes of this policy.
d. Agencies have the authority to determine what constitutes an excepted weapon utilizing the exceptions listed above.
Well, it's nice to know that our serving and eating utensils are allowed if and while they're being used for serving and eating, and that our golf clubs are allowed to stay in our cars. The bit about defensive sprays is particularly interesting — we'll get to that.

Now, just like in the previous bleg, we'll look at the existing statutes and administrative rules cited as the legal authority for this policy: Oregon Revised Statutes (ORS) 240.145(3), ORS 240.250, ORS 276.004, and Oregon Administrative Rules (OAR) 125-155-0500(5)(e). For fun, and because the OARs derive their authority from ORS, we'll go in reverse order.

Item #2: Oregon Administrative Rule #125-155-0500(5)(e) (link to Secretary of State's page for OAR 125-155; scroll down or Ctrl+F to find rule #0500)

One odd thing about the citation of this particular rule is the title, "General Use of Vehicles". That's right, they're citing the code of conduct for state employees' use of state-owned vehicles for their "no guns" policy! Still, here's the relevant part:
(5) Drivers of state vehicles and private vehicles on state business shall comply with the following safe use requirements:
(e) Drivers shall not transport firearms in vehicles unless required to do so by their agency under its authorization by state law. An agency may permit the transport of unloaded, packaged firearms as necessary for official state business. Officially sanctioned programs of OSSHE may transport unloaded firearms only under written conditions set by OSSHE.
So state employees cannot keep or carry firearms in state vehicles, except under written conditions serving sanctioned programs by OSSHE — Oregon State System of Higher Education. Basically, a publicly-funded college shooting program (of which I'm aware of precisely zero).

That's a pretty narrow description, in any case. I'd even go so far as to say, too narrow to be of any use. But that's just my opinion.

Item #3: Oregon Revised Statutes 240.145 Duties of administrator; rules.(3) (links to full page for Chapter 240; scroll down or Ctrl+F to find #145)

The statute opens up with:
The Administrator of the Personnel Division, subject to the approval of the Director of the Oregon Department of Administrative Services, shall direct and supervise all the administrative and technical activities of the Personnel Division. In addition to the duties imposed upon the administrator elsewhere in this chapter, the administrator shall:
(3) Prepare such rules, policies and procedures, tests and eligible lists as are necessary to carry out the duties, functions and powers of the Personnel Division under this chapter.
Basically, as far as I can tell, this just confirms that the Administrator of the Personnel Division is allowed to make rules and policies for the Personnel Division. It's odd (again) that this specifically addresses the Personnel Division and not the whole state employee population; would employees of, say, ODOT (Oregon Department of Transportation) not be covered under this, seeing as they are not Personnel Division employees?

Lots of questions, very few answers....

Item #4: Oregon Revised Statutes 240.250 Rules applicable to management service. (same link as #3)

This statute is a very odd choice for citation.
The Personnel Division shall adopt rules, policies and procedures necessary for the management service. The rules may cover any wages, hours, terms and conditions of employment addressed by this chapter, even if, absent the rule, those wages, hours, terms and conditions would not otherwise apply to the management service. The rules shall further merit principles in the examination, selection and promotion of individuals for the management service.
Not only does this one have the same potential issue as #3 — applying only to the Personnel Division — even assuming statewide applicability it only applies to management service. That means managers, supervisors, or officers within an agency. The statutes authorizing rule-making for classified, unclassified, and exempt service (the other three types of positions, per ORS 240.191 [same page]) are covered by other statutes (ORS 240.210, 240.205, and 240.200, respectively).

Given that, wouldn't the new policy only apply to managers? The legal basis of this mess seems to be falling apart at the seams.

Back to "Defensive sprays"

I said we'd come back to this. Recall from the previous bleg post, ORS 166.360(10)(c):
166.360 Definitions for ORS 166.360 to 166.380. As used in ORS 166.360 to 166.380, unless the context requires otherwise:
(10) “Weapon” means:
(c) Mace, tear gas, pepper mace or any similar deleterious agent as defined in ORS 163.211
And ORS 166.370:
166.370 Possession of firearm or dangerous weapon in public building or court facility; exceptions; discharging firearm at school. (1) Any person who intentionally possesses a loaded or unloaded firearm or any other instrument used as a dangerous weapon, while in or on a public building, shall upon conviction be guilty of a Class C felony.
In the interest of full clarity, Here is ORS 163.211(2) (presented as the definition of "mace, tear gas, pepper mace or any similar deleterious agent"):
163.211 Definitions for ORS 163.211 to 163.213. As used in ORS 163.211 to 163.213:
(2) “Mace, tear gas, pepper mace or any similar deleterious agent” means a sternutator, lacrimator or any substance composed of a mixture of a sternutator or lacrimator including, but not limited to, chloroacetophenone, alpha-chloroacetophenone, phenylchloromethylketone, orthochlorobenzalmalononitrile, oleoresin capsicum or a chemically similar sternutator or lacrimator by whatever name known, or phosgene or other gas or substance capable of generating offensive, noxious or suffocating fumes, gases or vapor or capable of immobilizing a person.
For the purposes of this argument, none of the exceptions to ORS 166.370 apply, as DAS policy #50-010-05 flatly stated CHL holders are not exempt (and CHLs apply only to handguns anyway). This means that carrying a defensive spray into a public building, though now allowed by DAS policy, is still a Class C Felony.

Go figure.


The new policy issued by DAS is even more confusing and weak (from a legal authority standpoint) than the original "no weapons" policy. As in the last attempt, I'll take all comments and opinions, and if any legal minds want to weigh in with anything I may have missed (I am not a lawyer, after all), by ALL means, please do.

Stay safe.

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