Hare case: Small fine, huge principle

Manager Wes Hare and Attorney Jim Delapoer flank the mayor in a file photo from May.

Manager Wes Hare and Attorney Jim Delapoer flank Mayor Sharon Konopa in a photo from May.

Albany City Manager Wes Hare says he himself is paying the $75 civil penalty he was assessed for an alleged -- but in my opinion unwarranted -- election law violation even while the city council seeks to overturn the complaint in the Court of Appeals.

Karl Bridenbeck, a private citizen and Albany resident for some 30 years, tried to pay the fine last week, but the state Elections Division returned his check. Bridenbeck works in sales and does not know he city manager. He told me this morning he paid the fine because he did not want this case to be a continued distraction taking away from the jobs of city or state officials. "I just wanted to get the city back to work," he said.

Bridenbeck had contacted the Elections Division and learned that third parties can pay people's civil penalties. But then the state checked with City Attorney Jim Delapoer. After speaking with Hare, who was away at a conference last week, Delapoer responded to the Elections Division: "He advised me that while he is grateful that a citizen would wish to pay his fine, he would prefer that the state return the money to Mr. Bridenbeck as Mr. Hare intends to tender his own payment when he returns from out of state business next week."

Paying the fine does not make the contested case moot; if the city wins, Hare will ask for his $75 back.

Delapoer has asked the appeals court to review the findings of an administratve law judge that Hare violated election law with a press release last fall that failed to mention the estimated tax rate of a proposed police and fire building bond issue then on the ballot. The council is contesting the finding, hoping to establish that public employees are free to give the public information on ballot issues without fear of being found in violation afterward.

State law says public employes must not spend public time or money to advocate or oppose candidates or ballot measures. But the law also says public employees are free to express their political views as long as it doesn't interfere with their work.

On Sept. 9, Gordon Shadle, the Albany resident whose complaint started this case, filed a new complaint, this time with the Oregon Government Ethics Commission, contending that the city attorney's handling of the Hare case at no additional charge to the city amounted to a gift to the city manager in violation of the law against public officials using their positions for personal financial gain.

But Hare informed the commission that the council, by resolution, had directed Delapoer to contest the case "for public policy reasons and not as a benefit to me." He  pointed out that the council also provided that "any incidental benefit that I may personally receive from the city attorney's work is authorized by the council as additional compensation."

And on Sept. 10 , Ronald Bersin, executive director of the ethics commission, informed Hare that the agency was taking no action on the Shadle complaint because it did not appear to involve "areas of commission jurisdiction."

Delapoer has filed his petition for judicial review of the election complaint. The next step is for the state to respond with the record of the case. Once the record is complete, briefs will be filed, and eventually, the appeals court will issue a decision.

This may take some time, and we may all get impatient. But let's remember this: The Hare press release avoided advocacy, as the statute requires. The Shadle complaint resulted in a finding of a technical violation of a provision of an Elections Division manual. The fine was small. But the principle is huge. Do we want public officials -- whom we pay plenty of money -- to be able to freely explain public projects subject to elections? Or do we want them to clam up? (hh)

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