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)