City of Beaverton faces contempt charge as company presses court for judgment

Mayor Rob Drake is fed up with Nike Inc.'s 'smoking guns' and wants to end the legal feud that has cost Beaverton taxpayers more than $360,000.

'We want this litigation to end, but not at any cost,' Drake said. 'This has been a difficult process.

'We've been asked to expend a huge amount of taxpayers' money in advance with no certainty of payback.'

Those costs will continue to rise if Nike's attorneys get their way.

Nike is asking a Washington County circuit judge to declare it the winner in its long-running public records battle with the city of Beaverton.

Attorneys for Nike filed three motions Friday afternoon asking that the court find in favor of the Fortune 500 sports apparel giant in the 19-month-old public records request, declare the city in contempt and require the city to bear all the costs of searching for the records, which could be hundreds of thousands of dollars.

Attorneys also are preparing a separate filing for hundreds of thousands of dollars more in legal costs if the court finds in favor of Nike.

'I'm tired of the bullying,' Drake said Tuesday. 'I don't understand why they are continuing this harassment and this haranguing.

'We're trying to look ahead toward the future. Even after all of this, I would still be willing to sit down and have a reasonable discussion with Nike, but not when they are twisting my arm and punching me in the nose while we're doing it. We've got to move forward.'

Taxpayer expense

Nike and the city have wrangled since December 2004 over a request for all the documents related to Beaverton's annexation policy and any plans to target Nike's World Campus on Southwest Murray Boulevard. The city hired a computer consulting firm to retrieve much of the documents and e-mails and deluged Nike with thousands of pages of information thought relevant to the case.

Since the beginning, Nike has maintained that the city failed to provide information of value in the request.

Meanwhile Beaverton officials charged that they were following the perimeters set by Nike and providing the company with the documents it asked for.

In December, Judge Gayle Nachtigal set aside the issue of who would pay for the massive records request.

Under Oregon law, usually the person making the request is required to pay for the staff time to search and copy the documents, unless it involved unusual circumstances.

'The public needs to understand that it wasn't the city that started this litigation,' Drake said. 'Nike is the one continuing to file motions and press the issue.

'All we have ever asked with Nike's public information request is that they pay for the information in advance like everyone else would be asked to.'

Nike's attorneys said in Friday's court filings that the city has stalled attempts to get the relevant information, forcing it to spend thousands in fees and related costs to find out if the city planned to annex the site.

Drake defended the city's actions in responding to Nike's broad records request.

'The reason we've resisted is that we simply wanted Nike to pay for the information because it's done at taxpayers' expense,' Drake said. 'We're not objecting to them having public information.'

City in contempt

Late last year, the Legislature approved a bill that prevented the city from annexing Nike's property, and several other business sites around the region, for at least 35 years.

Nike's latest filings were prompted by the discovery in late June of a color-coded map and a brief Nov. 1, 2001, e-mail exchange between Joe Grillo, the city's community development director, and Hal Bergsma, the planning director, listing possible business sites that could be annexed to 'reverse the city's total taxable assessed calculation.'

In bright yellow on the map is Nike's world headquarters campus. Other properties highlighted on the map included the Tektronix campus, Providence St. Vincent Medical Center and some of the commercial sites in the Peterkort development north of the Sunset Highway.

In the e-mail, Grillo and Bergsma discuss a draft annexation plan that includes the properties on the color-coded map. The e-mail makes it clear that although it is a public document, the annexation issue paper was not for wide distribution and comments about the possible annexation sites could be tempered or removed 'before more people see it.'

Nike spokesman Vada Manager said the company decided to ask the court to find the city in contempt (the second time it has done so) because the city knew about the map and the e-mail exchange months before it was given to Portland attorney Joel A. Mullin during Bergsma's June 20 deposition.

'Clearly this demonstrates that you have some smoking guns, maybe even smoking cannons,' Manager said. 'Given the color-coded map and other disclosures, we certainly see merit that the city was in contempt.'

Proper and legal

The city plans to respond to those charges in the coming weeks.

In the meantime, Drake defended the city's actions.

'We never said we didn't want Nike in the city, but there were no immediate plans to annex Nike,' he said. 'If we were going to, we would have done so.

'Regardless of what Nike says about a 'smoking gun,' the council never saw those documents. It's important to note that it's the policy makers that make policy, not a staff person. Nike took an email that had no bearing on what the council adopted in November 2004. That 2001 email was not part of the council's consideration.'

In his filing, Mullin wrote that the city could have produced the map, the issue paper and the e-mail much earlier than June 20.

'As it turns out, the 'smoking gun' documents were not located in some dark outer corner of the city's servers; they were to be found in the file cabinet in the office of the city's principal planner Hal Bergsma,' Mullin wrote.

Nike claims the city should have produced all the relevant documents earlier, and now should be required to pay the entire costs of the search.

Drake said the city had offered the documents earlier in batches that Nike refused to accept.

As for Nike's request that the city bear the entire cost of the search, city officials say they plan to fight.

'All of this is coming from a company headquartered outside the city limits,' Drake said. 'We need to protect our taxpayers and the city interest.'

He argued that it was Nike and not the city that caused the litigation to drag on.

'When they couldn't find anything on our home computers, the goal post shifted,' Drake said. 'There's no basis for their beliefs.

'In the beginning, they said we were conducting illegal meetings and then didn't find anything to support that belief. Frankly, I find it really insulting. There's nothing we've done that hasn't been proper or legal.'

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