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» Hare’s case heads for appeal

HASSO HERING

A perspective from Oregon’s mid-Willamette Valley

Hare’s case heads for appeal

Written June 2nd, 2014 by Hasso Hering
Albany City Attorney Jim Delapoer is pursuing the case at his own expense.

Albany City Attorney Jim Delapoer is pursuing the case at his own expense.

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)

 



12 responses to “Hare’s case heads for appeal”

  1. Gordon L. Shadle says:

    No surprise here at all. On the merits, the case was a no-brainer. When a city employee communicates the gain associated with a bond measure (new buildings), that employee must also communicate the pain (the tax). Hare didn’t do this and got caught.

    The ALJ’s proposed order ruling against Hare was totally predictable. See my LTE to the D-H:

    http://democratherald.com/news/opinion/mailbag/mailbag-electioneering-clarification/article_60585764-d571-11e3-a6d0-001a4bcf887a.html

    And one point of clarification. My complaint to the Elections Division was silent in regards to “one specific requirement in a manual issued by the secretary of state.” My complaint was broader in scope and didn’t even mention the manual’s requirement.

    Finally, I don’t perceive myself as a “citizen activist” and neither should you. Activism implies organization and ideology. Neither applies to me. I’m simply an Albany resident who pays a little attention to what happens at city hall and is unafraid to speak out.

    • Thanks for the clarification. (hh)

    • Bob Woods says:

      And my recollection, Gordon, is that the Secretary of State’s office rejected all your claims In their opinion. This one at issue was found by a State staffer.

      • Gordon L. Shadle says:

        Your recollection is wrong. The SoS issued their notice to Hare on Feb 19, 2014.

        The only reference to my complaint was the following, “On October 24, 2013 the Elections Division received a complaint from Gordon Shadle alleging that you violated ORS 260.432 by drafting and disseminating a news release dated October 22, 2013 (“the release”).”

        No rejection, only validation from the SoS that Hare violated the law. Now the ALJ has validated my contention and the SoS notice. And the next validation will come from the Oregon Court of Appeals.

  2. Jim Clausen says:

    Geez Hasso, if you’re going to “report” on events at least state correctly what the event entailed…

    You wrote “…the agency’s $75 fine against Albany City Manager Wes Hare (was) for reminding voters last fall that an election was taking place.” This is just flat out wrong. They agency did NOT fine Wes for “reminding voters” – the agency fined Wes for not disclosing pertinent information that was required by law.

    Whether or not you clear up that statement later on in the article is of little importance; you’ve already set the stage for your agenda in the first paragraph using this kind of colored rhetoric.

    Depsite the facts of the case, despite the judge’s findings, despite common sense, your inability to cover this subject in an unbiased way is truely incredible. Realizing this is nothing more than a blog, I would still expect a person with your years of service to make an honest effort at covering a story without being so one-sided.

    • Nothing one-sided about it. He reminded voters of the election and got fined. The details of the reasons for the fine followed, as always. This is my perspective of the case, clearly labeled as commentary. So, Jim, with respect, you’re way off base. (hh)

      • Gordon L. Shadle says:

        Funny you should deny being “one-sided.”

        Here is what the judge said on page 10 of her ruling:

        “In this case, although Mr. Hare’s comment on the pending bond measure was factually accurate, it was also one-sided. The comment was one-sided (hence, advocacy) because Mr. Hare did not fully describe the measure’s cost to the individual taxpayer.”

  3. Bill Kapaun says:

    Everybody seems to miss the point that Wes Hare is paid to know better.

    • Gordon L. Shadle says:

      You are correct. He is paid to know better.

      What is incredible here is that the issue never entered Hare’s thought process. Here is a quote from page 2 of Hare’s affidavit – “It never occurred to me that anyone could construe my press release as advocacy.”

      Well, it certainly occurred to others that Hare was in violation. Any sixth-grader reading the manual on electioneering would understand the requirement to be balanced in press releases. But it “never occurred” to our highly paid city manager? Unbelievable.

      • This back and forth dances around and ignores a simple fact: The language of that written “press release” was neutral and impartial the way English speakers understand those words, neutral and impartial just as the statute requires. The state Elections Division faulted it for a technical defect in that it failed to comply with an obscure and, as I’ve shown before, unnecessary and pointless requirement by the secretary of state about specific language to be used in such statements. And no, the city manager is not paid to have memorized every jot and tittle of the state’s countless administrative rules. He’s paid to manage the city administration in an honest and efficient manner, which he has done and continues to do despite the sniping over this flap, which centers on a harmless omission in one sentence of a statement that mattered not when it was issued and does not matter now. (hh)

 

 
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