What’s behind rain tax law’s repeal

As of now, there's no Albany storm water utility that could impose a "rain tax."

As of now, there's no Albany storm water utility that could impose a "rain tax."

Albany's challenge of Oregon's rules restricting free speech by public employees has failed. Indirectly that is what's behind the action of the city council Wednesday to repeal the rain tax utility ordinance it had passed just last month.

This complicated story began in October 2013 when, acting at the council's direction, City Manager Wes Hare caused a press release to be issued regarding a then-imminent bond election for new police and fire stations. The press release mentioned the election date but said nothing for or against the issue itself. Gordon Shadle, then an Albany resident, complained that the statement amounted to illegal advocacy by a public employee because while it mentioned the total cost, more than $20 million, it did not include the proposal's estimated tax per thousand dollars of assessed valuation.

The secretary of state's office had published a manual on how public employees can avoid advocacy while communicating about elections. It says that in tax elections, they must state the cost per thousand. The Elections Division of then-Secretary of State Kate Brown found Hare had failed to meet that requirement and imposed a penalty of $75.

In February 2014, the city council authorized City Attorney Jim Delapoer to contest the finding, all the way to the Supreme Court if necessary. The city attorney filed an appeal to the Court of Appeals, but Hare says that about a couple of months ago the court rejected the case without comment. (The rejection escaped my notice, which is odd considering that this could have been a celebrated case.)

Hare told me that he decided against taking the case to the Supreme Court. Delapoer had been pursuing the appeal at his own expense, but the attorney plans on retiring in a matter of months and does not want to have to keep practicing after that. The result of this unsuccessful challenge is that public employees still can't be sure they cannot be fined for unwitting violations of the regulations even though they scrupulously avoid taking sides on election issues.

Which brings us to Albany's storm water utility ordinance passed in April. A petition to refer the ordinance to the voters has been filed. This puts city employees at risk if they discuss with the council, or the public, the pros and cons of the rates of this new storm water utility. And they have to be able to talk about this because the council expects to adopt a rate structure before the end of the year.

The council's answer: Repeal the ordinance so the referendum petition goes away. The council voted 4-0 Wednesday to do so, and with an emergency clause the repeal takes effect immediately. (Councilors Dick Olsen and Floyd Collins were absent. An earlier version of this story mistakenly said the vote was 4-2.)

So what happens if someone files an initiative that would bar the city from adopting a rain tax or creating a storm water utility? Wouldn't the same problems come right back up? We'll see.

My opinion: The law against public money being spent to influence elections is necessary but needs an amendment. The amendment should clarify that it does not prevent anyone, including public employees during work hours, from communicating with anyone about the details or likely effects of any ballot measure. So that if voters want to know something about a tax proposal or any other measure, they can call and get answers from the people who know. (hh)

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