A senior administrative law judge said Tuesday morning she hoped to make a ruling in the Albany city manager’s electioneering case within 30 days.
Attorneys for City Manager Wes Hare and the Oregon Secretary of State’s office made oral arguments via telephone during a 60-minute “prehearing” with Tualatin-based Judge Alison Greene Webster.
The prehearing arose from the state’s filing a motion for summary judgment in the case, which stemmed from the secretary of state’s Elections Divison’s determination that a press release written by Hare last fall about an in-progress bond election was “advocacy” and thus violated Oregon law regarding electioneering.
Webster said following the prehearing that no further hearings will be necessary.
Because the press release about proposed new police and fire stations, which Hare had been directed by the City Council to put together, did not describe the bond’s cost to voters in terms of per-$1,000 of assessed property value, the Elections Division fined the city manager $75.
The city originally planned to pay the nominal fine to settle the matter, but changed course when City Attorney Jim Delapoer offered to represent Hare for free. Delapoer’s offer is based on his belief that the Secretary of State’s office’s interpretation of electioneering law deprives voters of information they need to make informed decisions and thus constitutes “bad public policy,” as he told Judge Webster on Tuesday.
“It has a chilling effect on public employees,” Delapoer said. “You end up with the people who have the least knowledge speaking, giving opinions as facts, and the only people who can respond are the elected city councilors, who are lay people. Staff are paralyzed.”
Delapoer argued that the spirit of electioneering law is to prevent actions that would use taxpayer money for campaign purposes — for example, renting for a bus to take city employees to a political rally — not to limit public employees’ political speech. He contended the Elections Division’s manual for avoiding electioneering, in addition to being vague and over-broad, violates free speech because it says if a bond’s benefit to voters is mentioned, then the per-$1,000 cost must be mentioned as well.
Karen Clevering, representing the state, said the statute on which the manual is based, ORS 260.432, does not restrict free speech and reiterated the state’s position that the release, put together during the course of Hare’s working hours, constituted advocacy.
Hare could have worn a “vote yes” button, Clevering noted, but the omission of the per-$1,000 cost was a violation of the Oregon Revised Statutes as interpreted by the electioneering manual.
In an affidavit submitted to the judge, Hare said he was trying to follow the law to the best of his ability.
“The case rises or falls on the press release itself, and whether or not that press release was not impartial and in violation of statute,” the judge said. “I will be taking these oral arguments and the submissions that came in with the motion and making a determination on the merits. Part and parcel of that are the arguments that Hare has raised regarding the propriety and consitutionality and legality of the manual.”
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