Ellis lawsuit against Corvallis has both sides parsing city charter (2024)

Both sides await to hear from federal Judge Ann Aiken. Here are the arguments the attorneys for Ellis and the city have made in an attempt to sway the jurist.

But first some history.

Ouster attempt

Last December, a memo for the Dec. 4council meeting contained a resolution declaring the Ward 5 councilor seat vacant anddirecting the city manager to solicit nominations to fill that position.

Ellis, according to the meeting memo, was forfeiting her position after being informed by council leadership that she violated Section 23(f) of the charter by interfering in city hiring matters. That happened via comments and a motion made at the Sept. 13, 2023 Climate Action Advisory Board where Ellis serves as both chair and council liaison, and the Sept. 18, 2023 council meeting, respectively.

At both those meetings, she was seeking to encourage city administration to advertise for a position vacated earlier in the year, one that aids the advisory board and other environmental pushes.

In doing so, the leadership alleged that she was butting in on City Manager Mark Shepard's staffing duties, a violation of the city charter.

Though she had agreed to the forfeiture when approached, Ellis then said she had not resigned and asked instead for a due process hearing. The city agreed, but pushed the due process hearing back several times.

The hearing is now officially halted by a federal courtin Eugene, which landed the case Ellis originally filed at the Benton County Circuit Court to address the First Amendment implications.

In her lawsuit, filed Jan. 22, Ellisasked the court to halt the due process hearing and invalidate that charter section, saying it was overbroad, unconstitutional and an infringement on her freedom of speech.

The city's attorneys have argued that Section 23(f) is neither overbroad nor invalid under the Oregon and U.S. constitutions because it focuses on the intended effect of Ellis' motion, which is to directly or indirectly influence or coerce the city manager in matters of hiring (and also purchasing).

The city also has argued that the section delineates the roles of the council from that of the city manager in a council-city manager style of government, where the council hires the city manager and the city manager hires almost everyone else. They say it was not in Ellis' purview to discuss or make motions regarding filling a staff vacancy at either public meeting.

Additionally, they've argued that as a city councilor, Ellis' motion — a mechanism of government — at the council meeting, is not protected by the First Amendment.

Response to the city

The city has asked the judge to approve its motion for summary judgment; that is, even if Ellis' allegations of facts are true, she should lose as a matter of law.

In an April 11 rebuttal to the city’s motion, Ellis’ lawyers have zeroed in on the caveat in Section 23(f), which reads:

"Nothing in this section shall be construed, however, as prohibiting the Council, while in open session, from discussing with or suggesting to the Manager, fully and freely, anything pertaining to the City affairs or the interests of the City."

According to the motion, both meetings were open sessions, and Ellis’ statements at the meetings "were made in furtherance of 'discussing with or suggesting to the Manager, fully and freely, anything pertaining to the city affairs or the interests of the city.'"

Shepard's presence at either meeting was not imperative, they argued, as nothing in the charter section suggests the "city manager must be present at a public meeting for a councilor to safely speak."

Contrary to the city’s attorneys’ arguments that the charter section is valid because its focus is not on the content but effect of speech, Ellis’ lawyers argue the opposite.

Both sides use what’s called the Robertson framework to analyze the charter section. The framework tries to determine the validity of a law by asking:

While the city argues that Section 23(f) is not overbroad and is valid under the second category, Ellis’ attorneys say that it places restrictions on specific content (a councilor can discuss any other subject with the city manager except those listed in 23(f).

This "makes it a category-one law under Robertson," Ellis' lawyers said in the rebuttal.

In addition, the lawyers say the city "can’t cite a single pre-1857 law — of any kind, anywhere — that prohibited a city councilor from speaking with a city employee about particular topics, let alone city hiring and purchasing.

"Section 23(f) is thus facially invalid under Article 1, section 8, of the Oregon Constitution," Ellis's paperwork filed with the court said.

Contrary to the city’s argument that Ellis’ actions were not in line with her responsibilities as a city councilor, Ellis’ lawyers argue that "not discussing it, ignoring it instead, is incompatible with her duties as a member of the City Council in which is vested all powers of the city."

According to the plaintiff's attorneys, the city’s argument that councilors cannot comment on city hiring processes as it is incompatible with their job description and "makes no sense."

"Comments of that sort are not incompatible with a councilor’s duties, they are inescapable, maybe even obligatory," Ellis' attorneys argued.

Ellis’ lawyers assert that Section 23(f) is overbroad because it "reaches to speech unlikely to cause harm."

They argue that, contrary to the city’s position that Section 23(f) is about a separation of powers in the council-city manager form of government, the section does not forbid the council from discussing any of the city manager’s duties with the city manager, save hiring and purchasing.

"If the goal of Section 23(f) is to prevent cronyism and patronage, then to pass constitutional muster under Article 1, section 8, it must be written in a way that proscribes speech which has that very effect," her attorneys said.

Because there are instances when communications from councilors seek to influence the city manager but without the effect of cronyism, the section is overbroad, they argued.

The city argues that Ellis’ speech, as a councilor, was not protected by the First Amendment. But the case law that the city cites in its argument does not apply to Ellis’ case, her lawyers said in the rebuttal.

Her statements at the advisory board meeting could’ve been made by any of the members, the motion stated.

"She didn’t have to be a councilor to say what she said," the motion said.

While the same cannot be said for the motion Ellis made at the council meeting, where only a council members could have made a motion, the lawyers hearkened back to the caveat of Section 23(f) saying that the limitations of the charter section did not apply at open session council meetings.

Under the First Amendment, Ellis’ lawyers reiterated that the section placed a content-based restriction on speech and was thus facially invalid.

Even if it weren’t, they argued, the council's Dec. 4 resolution (which they refer to as a "charging instrument") brought allegations against "Ellis’ speech — her introducing and discussing, her advocating, her moving."

Not the first time

In a May 2 response to Ellis, the city’s attorneys argue that only what they’ve deemed the "influence or coercion clause" is relevant to the case, and Ellis has failed to challenge that clause appropriately.

That clause makes it a charter violation to "... in any manner, directly or indirectly, by suggestion or otherwise, attempt to influence or coerce the Manager in the making of any appointment or removal of any officer or employee …"

The city's lawyers counter that the other parts of the section charter as included in the draft resolution that was to be deliberated at the Dec. 4 council meeting were never presented to the council to vote or consider but served only as context.

In addition, the lawyers say Ellis was not "discussing” — or attempting to "discuss" — anything with the city manager but made a directive at the council meeting.

The city’s lawyers also argue that Ellis cannot prove that there was "a credible threat of prosecution of any provision of Section 23(f) — other than the influence or coercion clause — at the time her legal counsel filed this lawsuit on January 22, 2024, after 9 pm."

Ellis would have had to include that in the original complaint to "pursue a facial constitutional challenge to a restriction before it is enforced," according to the city’s attorney.

The city’s attorneys also accuse Ellis of jumping the gun on the case, saying that it was not the "federal court’s role to assess the underlying merits of the allegations' against Councilor Ellis under the City Charter.

"The mechanics of enforcement of the forfeiture provision under Section 23(f) of the charter had not yet come to pass when this lawsuit was filed, and are not before the court," the city’s lawyers said in the response.

They insist the section is not overbroad, and Ellis has failed to argue successfully how it reaches "beyond its intended purpose."

They argue that Ellis has engaged with Shepard on hiring processes in the past without violating the charter, although there was an instance in 2018 where Ellis "came closer to the line."

Former City Attorney Jim Brewer said in a declaration which accompanied the response that Ellis had involved herself in a hiring matter that cut close to violating the charter in 2018 when she sought to ascertain the cost split between two advisory board contractors before the hiring process was concluded.

Brewer said in his declaration that Ellis had been educated on the separation of powers required by Section 23(f) during the incident and prior, at council orientations and sessions over her several years as councilor.

In another declaration, this one from Shepard, the city manager said that when the Economic Development employee notified the city he was going on an extended paid leave, he informed Shepard the board "was not working on anything immediately pressing and that he did not think any staff support was needed for (the advisory board) while he was gone."

The staff member, Jerry Sorte, was at the advisory board meeting where conversations about the staff vacancy took place.

Shepard said Ellis did not inform him through available channels that the group needed staff support. Upon returning from vacation and learning of the motion, he said he discussed the group's needs with Ellis in October and arranged for staff support.

"If I had been informed by Jerry or Councilor Ellis prior to Jerry taking leave that the CAAB needed additional administrative support while Jerry was out, I would have arranged for that support earlier," Shepard said in his declaration.

Prior to these events, Shepard said that the Economic Development Office was undergoing some restructuring due to staffing challenges, which the council was aware of.

At the time of the advisory board and council meetings that became the subject of the charter violation case, the restructuring was yet to be complete. Shepard said not only was there was no vacant position for a "climate program specialist" at the time, but the position has never existed in his time as city manager.

At the Climate Action Advisory Board meeting in question, Sorte, when asked about the official title of the staff who formerly supported the group, said the position was called "economic development and climate program specialist."

Ellis' lawyers have since filed a brief motion in response to the city's response and the judge's opinion/order is expected to come within 60 days of May 20, depending on her caseload.

Changes

So far, one attorney has joined the case and another has departed. On April 6, Thomas M. Christ of Portland-based Sussman Shank LLP joined as counsel to Ellis on the case.

Per a June 6 filing, Jordan Pahl, associate attorney at Markowitz Herbold, is no longer on the case, leaving Kerry Shepherd as the city's counsel.

Markowitz Herbold was hired following approval by the council to seek outside counsel in the lawsuit. Since the work began in December, the city has spent over $120,000 on legal fees.

See the graphic for the breakdown from invoice records received through a public records request from December till March.

Though she is yet to announce her candidacy officially, Ellis said via email that she will be running for reelection this November.

"It is also my understanding that the case becomes moot if I win," Ellis said.

"I would rather have a clear decision moving forward, so that this cannot happen to anyone else and that we can adjust the charter accordingly in January, when we plan on convening the task force on the charter," she said.

The council began discussing the process of a likely charter amendment,including a likely scope and task force composition in May. The city attorneys have been asked toreview the charter, develop a report and cost breakdown to highlight aspects of the charter that are laden with ambiguities, risks or need to align with best practices to inform the next steps.

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