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HASSO HERING

A perspective from Oregon’s mid-Willamette Valley

What’s behind rain tax law’s repeal

Written May 25th, 2016 by Hasso Hering
As of now, there's no Albany storm water utility that could impose a "rain tax."

As of now, there’s no Albany storm water utility that could impose a “rain tax.”

Albany’s challenge of Oregon’s rules restricting free speech by public employees has failed. Indirectly that is what’s behind the action of the city council Wednesday to repeal the rain tax utility ordinance it had passed just last month.

This complicated story began in October 2013 when, acting at the council’s direction, City Manager Wes Hare caused a press release to be issued regarding a then-imminent bond election for new police and fire stations. The press release mentioned the election date but said nothing for or against the issue itself. Gordon Shadle, then an Albany resident, complained that the statement amounted to illegal advocacy by a public employee because while it mentioned the total cost, more than $20 million, it did not include the proposal’s estimated tax per thousand dollars of assessed valuation.

The secretary of state’s office had published a manual on how public employees can avoid advocacy while communicating about elections. It says that in tax elections, they must state the cost per thousand. The Elections Division of then-Secretary of State Kate Brown found Hare had failed to meet that requirement and imposed a penalty of $75.

In February 2014, the city council authorized City Attorney Jim Delapoer to contest the finding, all the way to the Supreme Court if necessary. The city attorney filed an appeal to the Court of Appeals, but Hare says that about a couple of months ago the court rejected the case without comment. (The rejection escaped my notice, which is odd considering that this could have been a celebrated case.)

Hare told me that he decided against taking the case to the Supreme Court. Delapoer had been pursuing the appeal at his own expense, but the attorney plans on retiring in a matter of months and does not want to have to keep practicing after that. The result of this unsuccessful challenge is that public employees still can’t be sure they cannot be fined for unwitting violations of the regulations even though they scrupulously avoid taking sides on election issues.

Which brings us to Albany’s storm water utility ordinance passed in April. A petition to refer the ordinance to the voters has been filed. This puts city employees at risk if they discuss with the council, or the public, the pros and cons of the rates of this new storm water utility. And they have to be able to talk about this because the council expects to adopt a rate structure before the end of the year.

The council’s answer: Repeal the ordinance so the referendum petition goes away. The council voted 4-0 Wednesday to do so, and with an emergency clause the repeal takes effect immediately. (Councilors Dick Olsen and Floyd Collins were absent. An earlier version of this story mistakenly said the vote was 4-2.)

So what happens if someone files an initiative that would bar the city from adopting a rain tax or creating a storm water utility? Wouldn’t the same problems come right back up? We’ll see.

My opinion: The law against public money being spent to influence elections is necessary but needs an amendment. The amendment should clarify that it does not prevent anyone, including public employees during work hours, from communicating with anyone about the details or likely effects of any ballot measure. So that if voters want to know something about a tax proposal or any other measure, they can call and get answers from the people who know. (hh)



10 responses to “What’s behind rain tax law’s repeal”

  1. Gordon L. Shadle says:

    Every city employee is free to speak on any issue while on their own time using their own resources. City employees do this regularily every election cycle via letters to the paper and other means of organizing/communicating.

    But strict state regulations are justified in limiting the electioneering that public employees do while on the job. The rules are clear and easy to understand, so the probability of “unwitting violations” is very small. Which means that city employees giving out unbiased “information” on an issue is not the objective.

    Using public resources to steer voters towards a desired political outcome is a more accurate description of the behavior. This was apparent back in 2013 when Wes Hare got caught doing it.

    The very last thing Albany residents need is for City Hall to become election HQ for every issue and politician the City Manager supports.

    And kudos to Tom Cordier and Skeet Arasmith. I hope they follow through and file a petition after the city council passes the ordinance that recreates the utility AND imposes a rain tax.

    Albany voters should have the final word on local taxes, not City Hall.

  2. Tony White says:

    The issue itself was faulty. The Council thought they had found a way to bypass the ordinance that requires new revenue measures to be subject to a vote of the people. This measure would have given a group of bureaucrats an open-ended source to declare a property tax. It is better dead and buried. But, be assured, if it arises again, it will be met with the same resistance as this one was.

  3. hj.anony1 says:

    This saga has an unlikely heroine in Kate Brown.

    Will she get her kudos come November?

  4. tom cordier says:

    Of course there is no requirement for people to vote approval for new fees/charges. That is what the Referendum Petition can require.
    To your blog, Hasso–your brief history failed to include the City getting a “safe harbor” decision for City Bridges article actually asking for a yes vote for the bond in May 2015. That determination was granted in direct violation of the of the specific language of the ORS. The Elections office refused to retract the “safe harbor” decision even though they knew the decision was wrong—saying “if you don’t like it take us to court”
    The current law is sufficient–just needs to be administered properly–as it did in this case.

  5. tom cordier says:

    Of course there is no requirement for people to vote approval for new fees/charges. That is what the Referendum Petition can require.
    To your blog, Hasso–your brief history failed to include the City getting a “safe harbor” decision for City Bridges article actually asking for a yes vote for the bond in May 2015. That determination was granted in direct violation of the of the specific language of the ORS. The Elections office refused to retract the “safe harbor” decision even though they knew the decision was wrong—saying “if you don’t like it take us to court”
    The current law is sufficient–just needs to be administered properly–as it did in this case.

    • I think you make my case, Tom. The way the law is being administered does not prevent advocacy at public expense, and we’ve seen examples of this, but in the Hare case it penalized communication that clearly was NOT advocacy… Well, on second thought, the intent of the press release WAS advocacy. The council wanted voters to know the bond proposal would be prudently reviewed. But the state penalized not the advocacy but a violation of its manual, a manual that tells public employees what they must say or face penalties. That’s why the law needs tuning and the manual should be thrown out. (hh)

    • hj.anony1 says:

      A reply so good it was posted twice?

  6. Ray Kopczynski says:

    “In the case of the stormwater ordinance, the state asked the city to remove six words in this sentence, regarding rates that other cities charge for stormwater treatment: ‘Rates in other communities range from as little as $1 in Sweet Home to as much as $27 in Portland.’ The state said the phrases ‘as little as’ and ‘as much as’ crossed the line.”

    To call that an example of “advocacy” shows the pure hypocrisy of the state law and why it’s totally asinine…

    From the DH Editorial this morning http://democratherald.com/news/opinion/editorial/editorial-state-must-clarify-rules-on-electioneering/article_d171c4ab-8cb8-5620-ab2a-ac6477aa683a.html

 

 
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