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HASSO HERING

A perspective from Oregon’s mid-Willamette Valley

Hare case: Small fine, huge principle

Written September 22nd, 2014 by Hasso Hering
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)



5 responses to “Hare case: Small fine, huge principle”

  1. Gordon L. Shadle says:

    No, let’s remember this: Both the Secy of State and Administrative Law Judge ruled that the press release written by Hare while on the job was unbalanced and constituted advocacy. Hare’s action was a clear violation of ORS 260.432.

    Also, let’s remember this: ORS 260.432 does not restrict Hare from expressing his personal political views on his own time. He just can’t express them while on the job during work hours.

    The press release was not an expression of his personal political views. The press release was a work product and therefore should have been balanced and in compliance with ORS 260.432. We pay him big bucks to know this stuff.

  2. Gordon L. Shadle says:

    I’ll add one last bit of information for your readers and then I’ll let this go.

    Please read pages 17-19 of the manual (Restrictions on Political Campaigning by Public Employees) to see the impartiality requirements.

    http://sos.oregon.gov/elections/Documents/restrictions.pdf

    There should be no question that the manual applies to Hare. And it is crystal clear that Hare violated the manual by omitting from the press release the cost to the taxpayer of the bond measure. Again, we pay Hare big bucks to know this stuff. He now wants us to believe “bigger issues” are involved. Nonsense.

  3. Jim Engel says:

    Mr Shadle. Your efforts to hold Hare’s feet to the fire are a good cause for accountability.
    Trouble is Hare’s “legal” adviser is the same adviser that told the council it was his opinion that they didn’t have to adopt a lawfully voter passed amendment. So of course they are invoking that same opinion process and again crying foul.

  4. tom cordier says:

    I don’t want my tax money spent defending any City official who has been cited and upon appeal has been found guilty of breaking election law. I wouldn’t even consider appealing a traffic citation and asking the taxpayer to absorb the cost. So if the City council has authorized the City finance director to pay the $373 filing fee; It is mis-use of taxpayer monies and should result in displacing some council members in November.

    • The city council is the manager’s boss. If you were the boss and your employee, following your directive, had carried out your orders in an impartial way as the statute requires, and then got cited for an inadvertent violation of an obscure administrative regulation that has no basis in the law itself, you would not feel obligated to push back? Some boss you would be! And no, this fine has not been upheld on appeal. The appeal has not yet taken place. It was upheld, big surprise, by the administrative law judge of the agency that issued the notice of violation in the first place. (hh)

 

 
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