City seeks clarity on vote for initiative

2013-01-07T06:45:00Z 2013-01-07T10:18:18Z City seeks clarity on vote for initiativeBy Cathy Ingalls, Albany Democrat-Herald Albany Democrat Herald

The Albany City Council wants to find out just how many votes it would take to approve a debt-limiting initiative that appears on the March 12 ballot.

Measure 22-117 promoted by Tom Cordier seeks to limit city debt without voter approval by amending the city charter.

Last December, City Attorney Jim Delapoer reiterated to the council that the debt-limiting measure contains a provision that states, “No new debt or debt extensions requested by the city council after 28 February 2012 shall be allowed without approval of a majority of Albany city electors in a primary, special or general election.”

At issue is the term “electors” and whether it refers to the entire electorate or just those who vote.

Delapoer has told the council he believes that for Measure 22-117 to pass it must be approved by a majority of those people in Albany who are registered to vote and not by a majority of people who actually send in their ballots.

To determine which is correct, Delapoer will ask that the council at its meeting on Wednesday, Jan. 9, direct him to initiate action in Linn County Circuit Court to get a judge’s determination concerning the vote required to pass the measure if the measure passes by a simple rather than an absolute majority.

The council, which has numerous items on that agenda, meets at 7:15 p.m. in the council chambers at city hall, 333 Broadalbin St. S.W.

According to Delapoer, Oregon’s constitution requires that when a measure proposes a requirement for more than a simple majority vote to approve a change in law or government action, that measure becomes law only if it is approved by the same majority.

“Therefore, if Measure 22-117 requires a majority of individuals qualified to vote rather than a majority of individuals who actually vote to approve new debt, it would appear that a majority of Albany electors, as opposed to just voters, will be required to make it effective,” he said.

Cordier contends that passage of his measure would require only a “yes” majority of  the people who vote.

Historically, March elections are for special districts, such as water and fire, and to elect school and community college board members.

It won’t be determined until later how much it will cost the city for Cordier’s measures to appear on the ballot. The amount depends on a formula that includes the number of candidates on the ballot, the number of measures put on by agencies and the number of registered voters within the jurisdictions appearing on the ballot.

The cost is divided proportionately.

Copyright 2015 Albany Democrat Herald. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(25) Comments

  1. Mr G
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    Mr G - January 11, 2013 7:55 am
    MarkAz: Most of what you say is accurate, but irrelevant.

    The city simply refuses to pursue clarity on the wording. They simply refuse to act in the public interest and seek a judge's determination before the election.

    It's not that a pre-election determination from a judge is impossible to get. The administrator and one judge have already indicated a willingness to expedite the case in Circuit Court. The City, not Tom Cordier, is the one asserting a cause of action. The City, not Tom Cordier, has the burden of proof. So only the City can file the action.

    The City must do what Tom Cordier already attempted - formally request an expedited determination from the court.

    Why won't the City do this?
  2. MarkAz
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    MarkAz - January 10, 2013 8:40 pm
    Mr. G.,
    You must remember that the City Attorney represents the interests of the City and not the interests of the petitioners. The Council made it obvious last night that they intend to legally challenge the election should it pass with a simple majority of actual voters but not by a "super" majority.

    As you saw and heard last night, the City Council is bound by law to "canvass" the votes and determine the outcome of the election. If the language of the measure legally lacks clarity on the issue of whether the measure must be passed by a super majority or not, then the Council cannot determine whether the election results are valid. This reality requires a legal determination ie.- litigation.

    Last night Mr. Cordier challenged Mr. Delapoer to meet him at the County courthouse to resolve this issue prior to the election. Regardless of how you view this approach, it will never happen, as the City Attorney's legal responsibility lies with the City (the Council) and NOT the petitioner.

    Mr. Delapoer will proceed with a legal strategy at the wishes of the Council. This is not dirty politics, it is just the reality of the way our legal system works.


    Here are the documents from last night's Council session:

    LETTER FROM MR. DELAPOER EXPLAINING HIS REQUEST FOR JUDICIAL DETERMINATION:
    TO: Albany City Council
    SUBJECT: Resolution Directing City Attorney to Seek Judicial Determination
    As the Council will recall, in December you directed that I bring to you for consideration a
    resolution directing that litigation be commenced to seek a judicial determination concerning the extent of the majority required for Measure 22-117 to be effective.
    Measure 22-117 is the proposed Charter amendment to further limit City debt. This measure
    contains a provision that, "No new debt or debt extensions requested by The City Council after 28 February 2012 shall be allowed without approval of a majority of Albany City electors in a primary, special or general election." An "elector" is defined in Oregon law to mean an individual qualified to vote as opposed to an individual who actually votes. The Oregon Constitution Article II, Section 23, requires that when a measure proposes a requirement for more than a simple majority vote to approve any change in law or government action, that the measure shall only become effective if it is approved by the
    same majority. Therefore, if Measure 22-117 requires a majority of individuals qualified to vote rather than a majority of individuals who actually vote to approve new debt, it would appear that a majority of Albany electors, as opposed to just voters will be required to make it effective. One of the tasks before the Council in the event that the measure passes by a simple majority, but not an absolute majority, is to canvass the votes and determine whether or not the voters have lawfully approved the measure. The proposed resolution would direct the City Attorney to commence appropriate litigation to ask a Court to determine whether Measure 22-117 has lawfully been adopted in the event that it passes by a simple rather than an absolute majority.

    THE LEGAL JARGON:
    RESOLUTION NO. _
    A RESOLUTION DIRECTING THE CITY ATTORNEY TO FILE LITIGATION TO DETERMINE
    THE EFFECTIVENESS OF ALBANY CITY MEASURE 22-117 IN THE EVENT THAT THE
    MEASURE IS APPROVED BY A SIMPLE MAJORITY OF ALBANY VOTERS RATHER THAN AN ABSOLUTE MAJORITY

    WHEREAS, Albany City Measure No. 22-117 is scheduled for a citywide vote on March 12,2013; and WHEREAS, the measure is entitled, "ACT TO LIMIT INDEBTEDNESS for CITY OF ALBANY, OREGON" and proposes to amend the Albany Charter to impose a new City debt limit equal to the total City debt as of February 28, 2012; and WHEREAS, the measure further proposes that new debt or debt extensions shall not be allowed "without approval of a majority of Albany City electors in a primary, special, or general election"; and WHEREAS, the Albany City Council believes that because the proposed measure requires approval of a majority of City electors rather than simply a majority of City voters to approve new debt or debt extensions and because the law defines an elector as an individual qualified to vote regardless of whether the individual actually votes that the result of the measure will be to require that new debt or debt extensions receive approval by an absolute rather than a simple majority vote; and WHEREAS, Oregon Constitution Article II, Section 23, provides that any measure that includes any proposed requirement for more than a majority of votes cast by the electorate to approve any change in law or government action shall become effective only if approved by at least the same percentage of voters specified in the proposed voting requirement and therefore that the Constitution requires that City Measure No. 22-117 be effective only if it receives approval by an absolute majority of City voters; and WHEREAS, the Albany City Council recognizes the possibility that the measure may receive approval from a simple majority rather than an absolute majority of Albany voters and may therefore be ineffective even if it receives simple majority approval.

    NOW, THEREFORE, BE IT RESOLVED that the Albany City Attorney is directed to prepare for and file appropriate litigation to seek a judicial determination concerning the effectiveness of City Measure No. 22-117 in the event that the measure passes by a simple, but not absolute majority vote.

    DATED AND EFFECTIVE THIS 9TH OF JANUARY 2013.


  3. scorpion
    Report Abuse
    scorpion - January 09, 2013 10:06 am
    The other option is to get out there.....really inform all the voters of the importance of this issue and get them to all vote and get the super-majority to pass the initiative in spite of the city's best efforts to thwart it.
    It would be alot of work, but can be done.
  4. scorpion
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    scorpion - January 09, 2013 9:44 am
    If that is indeed true Mr G, then that would simply be asinine ( although a rather predictable ploy from these folks), then it would behoove Tom to seek an immediate answer to that very question prior to the election, prior to Delapoer, so that that initiative isn't bushwacked after the fact.
    But I would really like the DH to follow up on this, after tonights council and get some clarification on exactly what is going on herre, and why.
  5. Mr G
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    Mr G - January 08, 2013 4:12 pm
    MarkAz: Just heard from city attorney Delapoer. The city has no intention of obtaining a judge's determination that would clarify the language prior to the election.

    So I repeat, what practical purpose does this resolution serve?

    Answer - none, unless you look at the resolution as a campaign stunt intended to discourage voter participation.

  6. MarkAz
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    MarkAz - January 08, 2013 1:35 pm
    Mr. G,
    Yes, tomorrow night's Council session should be informative, regardless of how anyone might feel about the ballot measure.
  7. Mr G
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    Mr G - January 08, 2013 12:35 pm
    MarkAz: Also, I communicated with Cathy Ingalls. She confirmed my understanding that the city will wait and take action only after the measure passes.

    While I wish your interpretation was correct, I don't think it is.
  8. Mr G
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    Mr G - January 08, 2013 12:32 pm
    MarkAz: I hope you are correct and this resolution directs Delapoer to obtain a legal opinion now to obtain clarity.

    But after communicating with Marilyn, and reading Ray's comments, I don't think that is what the city intends to do. We'll find out at tomorrow's council meeting.
  9. MarkAz
    Report Abuse
    MarkAz - January 08, 2013 12:13 pm
    Mr. G,
    A judge's "determination" and "litigation" are two different things.

    Apparently, Mr. Delapoer is seeking permission from the council to get a legal opinion from the Linn County Circuit Court PRIOR TO THE ELECTION. Should the measure pass by the majority of actual voters, but not by a majority of registered voters, THEN Mr. Delapoer would seek LITIGATION (I assume based on the Judge's determination made prior to the election).
    This seems to be a prudent strategy to me..........

    "To determine which is correct, Delapoer will ask that the council at its meeting on Wednesday, Jan. 9, direct him to initiate action in Linn County Circuit Court to get a judge’s DETERMINATION concerning the vote required to pass the measure if the measure passes by a simple rather than an absolute majority."
  10. Mr G
    Report Abuse
    Mr G - January 08, 2013 11:30 am
    MarkAz: I contacted Marilyn Smith. She confirmed the city's intent - they intend to file litigation only "in the event that the measure is approved."

    The resolution is a campaign stunt. It has nothing to do with obtaining immediate clarity on the wording in the measure.

  11. Mr G
    Report Abuse
    Mr G - January 08, 2013 8:30 am
    Scorpion:

    You, me, and MarkAz seem to be in agreement. We want this litigated now. No delay, no "in the event of", and no side shows.

    But Ray K has been very clear that the intent is to string this out until after the election. He has been very clear that a resolution is needed for the council to tell the attorney to essentially do his job. And when I read the resolution, it appears to confirm Ray's position. Which leads me to believe that Ray and some on the council have motives other than immediate "clarity."

    We will find out Wednesday night. Hopefully Ray and others on the council will make the timing clear so we can have a more authentic conversation about this issue.

    You'd think the city attorney would be more careful in drafting the words in the resolution. It's ironic isn't it? The issue here is interpreting words, and the attorney drafts up a resolution that is as clear as mud.

  12. scorpion
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    scorpion - January 08, 2013 8:09 am
    I am going to have to agree with Mark on this one. It appears to me, according to the verbage that they want to clarify if the very same "majority" of the electors are necessary to pass this measure, that would be needed to vote for the debt increases as determined by the definition of "electors". Now, I do not believe that "electors" is any different than "voters" when it comes to definitions. But apparently there seems to be some ligitamate aguement on the meaning of the verbage, and it does sound like they are trying to clarify it ahead of the elections, not after. They want to make sure that the same majority required to pass increases is the same majority the voted for it in the first place, and I fully agree with this common sense approach. And here is why. Once it is determined that there is no ambiguity with the language, that will remove one of the councils desperate arguments for telling people to vote against it. Ray will loose some of his ammo. And as he has stated many times, and I absolutely believe....Ray will do everything in his power to defeat the measures.....above board or not.
  13. John Puma
    Report Abuse
    John Puma - January 08, 2013 5:30 am
    One could view the city attorney's request as a critical service to the supporters of the measure by alerting them to possible legal vulnerability of the measure that could be exploited by its opponents in an attempt to overturn it, if the measure passes.

    The state law defines elector as:
    ORS 247.002 Definitions.
    (2) “Elector” means an individual qualified to vote under section 2, Article II, Oregon Constitution.
  14. Mr G
    Report Abuse
    Mr G - January 07, 2013 10:46 pm
    MarkAz: Ray K already clarified it for us. And the resolution wording clarified it for us.

    Litigation will be commenced "in the event" the measure passes.

    Perhaps you and are in agreement that it should read, "litigation should be commenced immediately."

    That would make everyone, except Ray and Delapoer, happy. Now the question becomes, why don't they want to do this?
  15. MarkAz
    Report Abuse
    MarkAz - January 07, 2013 10:12 pm
    Mr. G.,
    I believe that we are reading the same article, but drawing very different conclusions from it.

    "To determine which is correct, Delapoer will ask that the council at its meeting on Wednesday, Jan. 9, direct him to initiate action in Linn County Circuit Court to get a judge’s determination concerning the vote required to pass the measure if the measure passes by a simple rather than an absolute majority."

    I read the above to mean that Delapoer wants to go to court NOW for a Judges determination of the measure, while you read it to mean that the decision would be after the election.

    Perhaps either Kathy Ingalls of the DH, or Marylin Smith from the City can clarify?????
  16. Mr G
    Report Abuse
    Mr G - January 07, 2013 9:18 pm
    MarkAz: You still haven't explained why Delapoer needs a resolution to do his job.

    According to the Ray no litigation will happen unless the measure passes. Fine. If the measure passes, let's go to court.

    But why pass a resolution two months before the election outcome is known? Why seek out publicity for a resolution that does nothing but direct the attorney to do what he is already doing? A resolution isn't needed to have the attorney prepare for a "what if". He can do that now.

    The only logical conclusion is that this resolution is a publicity stunt. It's a campaign maneuver. It's intended to turn off the voter. It's an abuse of power and the council should be called out for it.

    I will change my opinion if the council orders the attorney to commence litigation NOW. Let's get this thing sorted out before the election. There is nothing stopping the city from requesting an immediate legal review of the wording. But, no, they evidently want to milk the legal process and get lots of ADH coverage in the process. It's a waste of taxpayer money.
  17. MarkAz
    Report Abuse
    MarkAz - January 07, 2013 8:10 pm
    Mr. G.-
    Although it is frustrating for the supporters of this measure, the City Attorney is simply doing his job.

    Your take is that Mr. Delapore is hindering the citizen from voting to have a direct say in any debt the City incurs, while my take is that he is simply making sure that the City's interests and processes are being protected.
    Now you probably would argue that this amounts to protectionism for what you view as a system that spends money on projects that you fundamentally disagree with. I would argue that there are well defined legal processes in place for how we are governed and Mr. Delapore is doing his job to insure that these legally binding processes are followed.

    As I have stated before, the measure will certainly be legally tested (both now and if it is passed) from many different angles to insure that it meets minimal accepted legal standards (both local and state)...

  18. Mr G
    Report Abuse
    Mr G - January 07, 2013 6:11 pm
    MarkAz: You do understand that the city attorney intends to commence litigation only in the event the measure passes, right?

    And Ray and some of his cohorts on the council seem absolutely certain that the measure will fail. Given their certainty, why waste taxpayer money on legal prep that isn't needed?

    And again I assert, this resolution is nothing more than a publicity stunt intended to discourage voter participation in the March election. Shame on our council if they pass this resolution.
  19. MarkAz
    Report Abuse
    MarkAz - January 07, 2013 5:50 pm
    The City Attorney is simply taking the prudent route by requesting clarification on the SPECIFIC language of the measure. It would be a tremendous disservice and cost to the taxpayers of Albany to find out after the fact that the petitioners used language that although well intended, did not meet the legal standard for passage by a simple majority of voters.

    Thank you Mr. Delapore for watching out for the taxpayers of Albany...
  20. Mr G
    Report Abuse
    Mr G - January 07, 2013 4:32 pm
    What exactly are you afraid of when it comes to having voters be the final decision maker on city debt?

    Don't you trust the judgment of Albany voters?

    Don't you believe that Albany voters should be the final voice on decisions that involve millions of taxpayer dollars to be paid back across multiple generations?

    Do you lack confidence in the council's ability to persuade voters to support debt creation?
  21. Ray Kopczynski
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    Ray Kopczynski - January 07, 2013 3:56 pm
    Mr G-
    " If you vote for this charade on Wednesday, you will fail in meeting your fiduciary duty to Albany taxpayers."

    Not only will I vote for it, I have been advocating this to happen from almost the same week this very bad idea has been proposed. I will fight it all the way to the end... It will fail!
  22. Mr G
    Report Abuse
    Mr G - January 07, 2013 1:11 pm
    "*Common* sense says the city should have information ready to present if the measure passes. Of course, since the measure will fail, we will never know the legal determination... Too bad."

    Ray, thanks for confirming that the council resolution is nothing more than a publicity stunt. The only practical purpose it serves is to line Delapoer's pockets. If you vote for this charade on Wednesday, you will fail in meeting your fiduciary duty to Albany taxpayers.
  23. Ray Kopczynski
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    Ray Kopczynski - January 07, 2013 12:22 pm
    Mr G-
    "You see, no judge will touch this until after the outcome of the election is known."

    *Common* sense says the city should have information ready to present if the measure passes. Of course, since the measure will fail, we will never know the legal determination... Too bad.

    "Unable to mount an opposition based on the issue of voter rights..."
    The measure proponents marginally were able to get enough signatures to even get it to this stage! To state there is no opposition to them is ludicrous!

    "...the council instead opts to play their lawyer card and turn their campaign into a three ring legal circus."

    It is 100% LEGAL as you state. Thank you for reminding everyone.

    "The unintended consequence is people will now be galvanized in their support of the measures."

    Right... I believe just the opposite.
  24. quickname
    Report Abuse
    quickname - January 07, 2013 7:53 am
    I see fear, that is expected when those who operate Albanys "cash cow" see their follies begin to evaporate before their eyes
  25. Mr G
    Report Abuse
    Mr G - January 07, 2013 7:48 am
    This is a great way for Delapoer to increase his billings to the city. What a complete waste of taxpayer money.

    The timing of this announcement reveals how politically desperate an act it is. By threatening a legal action in January the council is effectively trying to discourage voters from participating in March. You see, no judge will touch this until after the outcome of the election is known.

    Unable to mount an opposition based on the issue of voter rights, the council instead opts to play their lawyer card and turn their campaign into a three ring legal circus. The unintended consequence is people will now be galvanized in their support of the measures.

    Thanks for bolstering the YES campaign on Measures 22-116 and 22-117.
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