Mixed Messages 

Did Charlie Hales' Ghostwritten Rhetoric Violate State Law?

ON FEBRUARY 11, Mayor Charlie Hales unleashed a rhetorical tirade aimed at the people both suing the city and backing a campaign that would take Portland's water and sewer utilities out of city council's hands.

"The anti-environment funders behind this suit are also behind a ballot measure to create a new layer of government to run the environmental services and water utilities," the mayor was quoted as saying in a press release.

"If the facts aren't with you, and the law isn't with you, unlimited corporate money is a wonderful thing," his quote continued. "It can be used to attack Portland's environmental investments again and again and again. If you don't like green programs, these are the best attacks money can buy."

It was hardly a surprising take from Hales, who's spearheading a campaign opposing the so-called Portland Public Water District.

But the mayor never said it.

His spokesman and speechwriter, Dana Haynes, came up with the comments, in a move that backers of the water measure now say violated Oregon law.

"I crafted the quote and shared it with the mayor via email to South Africa," Haynes wrote in a March 4 email to the Oregon Secretary of State's Office, according to a copy obtained by the Mercury. "This is a standard method used in our office for many quotes."

The press release actually centered on a hearing in which ratepayers were demanding the city pay back utility revenues spent on projects they argued were improper. Beyond Hales, it quoted Commissioner Nick Fish as saying the lawsuit "lacks merit." But it also folded in references to the water district measure, which would create a new seven-member board to control the Portland Water Bureau and Bureau of Environmental Services.

"The high-powered corporate lobbyist behind this lawsuit also represents the chief petitioners in a corporate-funded ballot measure to strip the city of its environmental services and water bureaus," the release said.

As an elected official, the mayor is free to make comments on political campaigns, so long as he doesn't use public resources to do so. Haynes is more restricted. And Kent Craford and Floy Jones, chief petitioners behind the water district, say he went too far in mentioning their campaign in the February 11 release.

The pair filed a formal complaint with the state the next day, claiming Hales' office violated a state law prohibiting public employees from promoting or opposing political measures "while on the job during work hours."

That designation is more fluid for a salaried employee like Haynes—who's potentially always on call—than someone paid hourly. Haynes says he wrote the press release on February 8, a Saturday, "when city hall and city offices were closed because of snow and freezing rain."

Guidelines published by the secretary of state make clear Haynes would still be considered "on the job" during that time.

"A public employee who, on their own computer on the weekend, drafts a press release about how a measure might affect their agency, and signs the document with their title, would be acting in their official capacity," reads a manual from Secretary of State Kate Brown's office, last updated in 2012.

The matter was still under investigation as of press time, but elections law attorneys the Mercury spoke with said the complaint is not frivolous. It's also not a clear-cut breach of Oregon law.

And the stakes are relatively low even if the press release is ruled a violation. The law carries a maximum penalty of $250, but has historically seen much smaller fines levied.

In 2011, Portland Public Schools employees were fined $75 for illegally promoting a school bond. And in June 2013, the Oregon Health Authority found one of its employees was guilty of a "minor" policy violation for using her state email to arrange to drop off pro-fluoride campaign signs, but had not violated state statute.

"I guess my answer is: We'll see," says Haynes, who has said the release was scrutinized by two city attorneys before it went out. "The elections division asked us a number of questions and we answered them. Now we'll wait to see if they have further questions."

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