From left: Councilors Rich Kellum and Bessie Johnson; City Manager Wes Hare on Monday.
Speech control in the name of preventing electioneering by public employees. That’s the issue in the latest dispute over statements by public employees, and this time it involved Albany. The city council on Monday had a chance to be tough about it, but it chose a softer route.
It’s complicated, so bear with me. Oregon law wisely prohibits public money from being spent to advocate for or against any candidate or ballot measure. This limits what public employees can say or do about elections. But elected officials on their own are free to say whatever they want.
Last October an Albany election was under way on a bond issue to build a new police headquarters and replace the downtown fire station. There had been public criticism that the plans were not specific. At the suggestion of Councilor Rich Kellum, the council voted at a work session to get the public involved in the planning. Specifically, it voted to form two public review committees, one for each of the projects. The motion included the idea that this action be “announced.”
The next day City Manager Wes Hare and public information officer Marilyn Smith, a former journalist of great skill and an impeccable reputation for reliable work, worked up an announcement, issued it as a “press release” and posted it on the city website. It reported the council action. It also mentioned that an election on the $20.3 million bond issue was under way and would end Nov. 5.
On Oct. 23 a voter, Gordon Shadle, complained to the Elections Division of Secretary of State Kate Brown that the press release violated the law on the grounds that it amounted to advocacy. It was clear, at least to me, that the council hoped its action would blunt criticism of the way it had planned the projects. But to me, the announcement itself was just a statement of fact, completely devoid of even any hint as to how anybody should vote.
Astonishingly, however, an Elections Division compliance officer, Alana Cox, saw it differently. After questioning Hare and Smith through the mail, she concluded both had violated the state elections law and proposed to assess a civil penalty of $75 against each. Hare at first told the local paper he would appeal. But on Monday he told the council he had asked the state official to dismiss the complaint against Smith and told her that if she did, he would not appeal his own case. Earlier Monday, Smith got a letter saying that based on information she had submitted the state was withdrawing its complaint against her.
At Monday’s council work session, Kellum proposed and the council voted that each of its members including the mayor write a $10.72 check and send it to Secretary Brown to cover Hare’s fine. That’s when City Attorney Jim Delapoer stood up and offered a tougher and more decisive idea: Contest the case.
Why? Because this state regulation of what public employees can and cannot say is unconstitutional. It’s not the $75 or any other small amount of fines. And it’s not Hare or any other individual whose ox is gored by this regulation. It’s the entire city of Albany, which can’t get factual information on election issues from its employees because of the fear that something they say could afterwards be found in violation.
The council didn’t bite. Maybe it was the possible cost of taking such a case through the administrative law stage to the court of appeals. Delapoer said it might cost from $5,000 to $20,000. Council members instead are going with their plan to split the $75 penalty. And they will accompany this with a letter to Brown, protesting this kind of speech regulation. They’ll contact legislators too.
The state manual on the subject of public employees and campaigning lists some requirements that statements must meet. One says: “Any document that talks about what a measure would pay for or do must also fully describe how much it would cost.” The Albany press release did not do that. But did it matter? Hardly. Every voter had received a ballot that spelled out the cost in taxes per $1,000 of property value. The cost had been widely reported in the press.
It boils down to this: Even perfectly neutral and completely factual statements can be determined to violate the law under current regulations. As long as that is the case, don’t count on public employees to give you any information about any item up for a vote.
Instead of paying the fine, the council could do everybody in Oregon a big favor by taking this case to court. (hh)
I’m all for reform of Oregon’s election laws, even through the courts.
But the city also complained that the current law is not clear and they want clarification. Huh? The law (ORS 260.432), and its interpretation, are very clear.
See the linked Restrictions on Political Campaigning by Public Employees manual.
http://library.state.or.us/repository/2012/201209191128043/index.pdf
To be impartial, “any document that talks about what a measure would pay for or do must also fully describe how much it would cost.” (page 17)
It continues on page 18, “If a measure proposes to affect taxes or fees, the cost of the measure to an individual taxpayer or consumer must be included. In the context of a bond levy, this is generally the cost per $1,000 of assessed value.”
The manual is very specific on what is required. What further clarification is the council seeking? They aren’t saying. Instead, we get a check-writing stunt – an attempt to manipulate the public into thinking that “impartiality” and “advocacy” didn’t happen. By the law’s clear language, a violation did happen.
If the council wants to change the law, they should attempt to do so honestly – through the courts. Instead we get a bunch of phony political posturing. I don’t see how this helps the council gain credibility with Albany residents.
The state will probably have to fund a department to deal with the extra $.04!
The City Councilors did the right thing by paying the fine personally since they are the ones who directed city employees to violate election laws.
Question–did the council pass the “press release” by the City attorney??
Answer– we usually do but in this case we did not. If they had, there would be no violation.
Question –did the City mgr and the information officer write the “press release” while at work ?? Answer–yes. If the Council had written the piece and made a “press release” there would have been no violation.
The purpose of the “press release” was a last minute blatant attempt to get the bond measure passed and it was done in clear violation of the election laws by paid staff.
I don’t think anything is unclear about the Statute or the verdict by SOS Office.
The City should not spend one penny to litigate this–just do it right the first time going forward.
Hasso is spot on here… The statement made is [was] and never will be “advocacy” in my mind. It is a simple statement of facts. And since when does anyone lose their constitutional right to free speech simply by working for an organization? If there was any law that needs to be seriously challened, the current interpretation of this one does!
At worst this seems to be a no-harm, no-foul violation. The law and regs were written to eliminate more blatant electioneering by public bodies, which published “fact sheets” and the like that contained only pro-issue “facts.” And this at least partly traces back to a 1960s election, in which the Eugene Water & Electric Board spent EWEB funds to buy advertising against a ballot measure to limit EWEB’s right to build nuclear power plants. Former Congressman Charlie Porter, bless his soul, sued and won a State Supreme Court decision requiring EWEB board members to reimburse the utility out of their own pockets. Again, this violation seems to me to be a pity-pat one, and the fine should be paid by the council, since it in effect ordered the violation by requiring the announcement.
Thanks for the history, Don. Good to have guys around who know the score, or how the score originated.