An administrative law judge for the state Elections Division has upheld — big surprise! — the agency’s $75 fine against Albany City Manager Wes Hare for reminding voters last fall that an election was taking place. Now it’s up to the Oregon appellate courts to strike a blow for free speech, but also for common sense.
In case you are new to this case, Hare issued a press release last fall while the $20.3 million bond election for new police and fire stations was going on. The statement reported on a council action related to those projects. At the end, it reminded readers that the election would end Nov. 5.
Citizen activist Gordon Shadle complained to the state that Hare’s statement violated election law because it did not meet one specific requirement in a manual issued by the secretary of state. (Correction: He says he complained about the statement as a whole as being not impartial). The manual says any statement by public employees on public time about tax -measure elections must include the estimated tax rate per thousand dollars of assessed value. The Elections Division agreed with Shadle’s complaint.
City Attorney Jim Delapoer challenged the fine and raised several legal issues in addition to the main one, that it violated Hare’s free-speech rights. Administrative Law Judge Alison Greene Webster, in her ruling mailed May 29, ruled against him on all fronts. But the main issue gets short shrift in her 16-ruling.
The big point issue is this: State law properly prohibits public employees from using public money or work hours to promote or oppose ballot measures or candidacies. Hare’s press release did nothing that the law prohibits. It did not promote the ballot measure. It was perfectly neutral. The only reason for complaint was that the manual, an administrative rule, required the tax rate to be mentioned, and it was not.
So the question is whether a state agency should be allowed to go beyond the plain language of the law in setting up requirements, and then fine public employees when they breach those add-on rules. Under those rules, it is not enough to be impartial or neutral. In order to avoid fines, public employees also must memorize a manual before they can help citizens with election-related information.
The requirement for stating the tax rate is particularly pointless. Anybody reminded of an election and then turning to his ballot would read tax information on the ballot itself. So what’s the point in the manual’s rule?
To sum it up: The manual goes beyond the law and sets up an unnecessary requirement that, in this case, has led to an accusation of law-breaking against a conscientious public officer. This accusation and others like it have the effect of making officials hesitant to give information that voters should have. And this violates not only the officials’ right of free speech and their duty to inform the public but also the right of citizens to get ballot-related information from officials who have it.
This case is about far more than $75. It’s about a more reasonable enforcement of a good law. (hh)