Former Oregon City Manager David Frasher: Mayor warned against election violation
Battle lines have been drawn, and attorneys representing Oregon City and anti-urban-renewal petitioners will face off for the first time in court Monday, March 21.
At issue is whether the city can revoke permission to circulate a petition for a ballot measure that, if approved by voters, would kill the citys urban-renewal program. Mayor Dan Holladay said that the city wouldnt have known to rescind the certification of the petition had he not heard from an out-of-town anti-urban-renewal activist who wanted to know why a similar proposed petition was rejected in Albany.
Former Oregon City mayor John Williams petition initially was approved as legislative, meaning it targets Oregon Citys charter, and Williams contends that his proposal is not administrative. The proposed limit to the maximum indebtedness of Albanys urban-renewal program was deemed administrative because it tried to set a particular number.
But before attorneys for the two sides could take their fight to court, a startling discovery was made: Former City Manager David Frasher is saying that he sternly warned Holladay against discouraging citizens from signing the petition using an opinion column printed in the citys official newsletter, Trail News. Holladay already has had to pay a $100 fine for submitting the argument with the help of public employees, a violation of state law. This newspaper obtained a copy of Frashers email to state investigators through a public-records request.
I told the mayor that you cannot use city resources to tell people to do or not do something with regard to a ballot measure, Frasher wrote in the email. I warned that using his proposed language in the newsletter would not only offend [the] Petitioner, Mr. Williams, but that it would likely lead to a complaint with the Elections Division of the Secretary of States Office. Mayor Holladay was not convinced and said that he needed to be able to say some things his own way, concluding Im not afraid of John Williams.
Holladay responded that he didnt remember having such a conversation with Frasher, although Im not afraid of John Williams is something that he might have said, the mayor acknowledged.
I could easily see myself saying something like this, just like I might say Im not afraid of [talk show host] Lars Larson, Holladay said.
Williams said that the mayors alleged contempt for election law is related to the case appearing in court next week.
He seems to be determined to quash a legitimate citizen petition in any way he can, Williams said. The mayors arrogance seems to be exceeded only by his desire to hand out cash subsidies to developers and property-owner cronies in the urban-renewal area of the lower part of the city.
Mr. Williams can say whatever he wants to say, but the simple fact is that we made a mistake, and we were transparent about it, Holladay said. Theres a percentage of the population thats not going to be happy with what we do, and thats just the reality of politics.
He said, she said
Thinking it was a mistake made by city officials to allow the article, Williams said he was initially satisfied with the states decision. But now Williams thinks that a $100 fine was not enough for punishing Holladay and is calling for the case to be reopened.
So it was just a sham when Mayor Holladay said that the Trail News article was a mistake and theyve instituted a new system to help prevent this from happening again. Instead he is deliberately flouting the law, William said. As mayor, he should be obeying the law, but he doesnt seem to understand that. Is it so important that Rossman Landfill be developed that he would go to any length to stop any threat to a developer?
Holladay pointed out that state officials wouldnt need to reopen the case, because they already had received Frashers testimony before making their determination of a $100 fine. According to the states rules, it doesnt matter who might have discouraged Holladay from submitting the Trail News article; the fact that Holladay had admitted to requesting the article to be published was enough for state officials to determine a violation.
Holladay said he couldnt believe Frasher would claim that he wasnt OK with the article.
David Frashers notes were all over the draft letter in the Trail News, and weve got the documentation to back that up, Holladay said. He was probably trying to protect his professional reputation and his chances at getting another job.
In an interview with this newspaper, Frasher acknowledged that he edited Holladays piece for the Trail News, because once I knew that he would do it no matter what, I tried to wordsmith to make it less inflammatory. As for getting another job, Frasher pointed out that he still was on Oregon Citys payroll when he submitted the testimony.
I wasnt looking for another job until I lost that one, because I still had my five-year contract, and I was operating on the assumption that we were all keeping our promises, Frasher said.
Heres another section of what Frasher wrote in the email to state investigators on Sept. 2, less than a month after he was placed on administrative leave:
As you can imagine, it is an awkward situation for a city manager (particularly one on admin leave) to provide information contrary to the interests of his/her mayor. I hope that you will keep that in mind and use whatever discretion you have to keep this confidential, at least until my admin leave status has been resolved. The mayor may be voting on my employment status in the next few weeks, which complicates this even further for me. Nevertheless, I did not want to wait for that, because I wanted to avoid any appearance that I might have a motive to either help or harm the mayor. I like Mayor Holladay and believe that he learns quickly from mistakes. However, he often challenges or sometimes disregards the advice of professional staff, which is precisely what occurred in this case.
Willing to swear under oath
Holladay said he was upset when he saw that Frasher had submitted the testimony to state officials about the Trail News article.
I dont recall ever having a conversation that went that way, Holladay said. He was simply lying I dont know how else to put it.
Frasher told this newspaper that he would stake everything on the truth of his written statement to state officials.
This was an intentional, knock-down drag-out argument, Frasher said. The stuff in that email I would testify to under oath, and Im not sure Dan would be comfortable with that.
Holladay said that he also would testify under oath that the conversation never happened. Williams said he was inclined to believe Frashers side of the story.
Mr. Frasher has no reason to lie, except that he did get rough treatment down there at City Hall from Mayor Holladay, Williams said.
This was not the only thing, Frasher said. Its common knowledge that Dan is difficult to work with.
Frasher said another example of an argument between him and Holladay was over the city paying $85,000 to Oregon City Manor, where the city kicked out 18 men from the group home in April 2015. City officials had warned for months that the building wasnt up to code, but the city should have warned the tenants, not just the owners of the group home.
While the building official certainly had grounds to condemn the building, the city had a lot of liability there, so the city was right to settle the group-home owners lawsuit, Frasher said.
Holladay said that the $85,000 settlement didnt create an argument, rather it was understandable that the citys contracted risk-management firm would make such a decision.
It was out of our hands at that point, Holladay said.
Holladay said that the only heated disagreement he remembers having with Frasher was in early 2015 when he tried to call Frasher after work at 6 p.m. and didnt hear back until close to 9 p.m.
You are the administrative head of the city, and just like the police chief or the mayor you need to keep your phone on in case people need to reach you, Holladay recalls telling Frasher.
Frasher said that if there were a real emergency, 911 could be called, and every city department director knew Frashers home address and could knock on his door to wake him up.
In every city Ive ever worked in, theres always been a dinner break, Frasher said. I have an infant, and my wife has a job, so I wasnt going to keep my phone on all night for Dan.
Next steps in case
This Monday, Oregon Citys attorney Bill Kabeiseman will argue for a judge to dismiss the petitioners lawsuit, because the petitioners apparently filed their claim under the incorrect Oregon Revised Statute (ORS law), according to documents filed at the Clackamas County Courthouse.
This court lacks subject matter jurisdiction over plaintiffs declaratory judgment claim over ORS 28.010 because ORS 250.270(4) provides an exclusive remedy for the injury alleged, Kabeiseman wrote in the 16-page filing dated Feb. 18.
Kabeiseman is arguing that, by state law, urban-renewal agencies are separate entities from the city, so the Oregon City Urban Renewal Commission should have separate representation in the case. Kabeiseman also is asking the judge to deny petitioners request for legal fees if the city loses its case, saying that the petitioners are seeking to vindicate a statutory rather than constitutional right.
The city says that they dont want to pay the legal costs, but theyre the ones that forced us to go to court or have all your signatures be for nothing, Williams said.
Williams said that he already has collected the 2,300 signatures needed, but the signatures are worthless unless a judge requires the city to treat the petition as a legal trigger for a charter change. If voters approved the measure, citizens would limit the citys urban-renewal agencys functions to paying off its current debt and dissolving itself. Oregon City voters already would get their say if the city proposes major projects following the 2012 success of Measure 3-407 to require votes before the city can sell urban-renewal bonds.