State ex rel versus the City


Editor’s Note: Audio of this hearing is available at the bottom of this article

While we may never know how many people called in and joined the WebEx meeting for a remote hearing on a case that normally would have drawn little attention, the amount of chatter it generated on Twitter afterwards suggests that it well could have been a packed courtroom in non-pandemic days. It was a testament to civic minded nature of Portland’s activist groups, and how important government accountability is becoming in today’s day and age.

The case started with incumbent mayor Edward Wheeler loaning his campaign $150,000 of personal money, and concerns that it was a violation of campaign finance reform laws that were passed overwhelmingly by the city in 2018. As this was the first major election since Measure 26-200 had passed and the city charter was amended, there were a number of uncertainties involved. County campaign contribution rules that had been challenged in 2017 had formed part of the structure for the 2018 measure and challenges related to it were still winding their way through the county court and the state Supreme Court. When a complaint was filed, the City Auditor flatly stated that “The City Auditor’s Office is not currently enforcing the limit on self-financed campaigns.” A violation of the city charter, and a failure to do the office’s job.

The fact that the only ‘self-financed campaign’ was the incumbent mayor, her boss, raised concerns from a number of a variety of sources, including this publication, who filed a records request to attempt to determine if the Mayor had had any contact with the city auditor, Mary Hull Caballero, at the time the donation was made. We did not find any evidence of obvious collusion between the donation and the refusal to investigate. But the concerns were still there, and the people making the complaint were forced to go to court to assert their rights. Thus started the case of State ex rel James Ofsink, Seth Woolley, Friends of Sarah for Portland v. Mary Hull Caballero.

What is ‘State ex rel’?

Of course, one of the first questions I had when I saw this case is ‘State ex rel’? And reading the documents there were references to Ofsink and Woolley as ‘realtors’. What did selling property have to do with campaign reform? It turned out, nothing really. According to The Free Dictionary, ex rel, short Latin for ex relatione, is a term used when someone needs to use the state to protect their rights. In this case, two individuals, as well as the Friends of Sarah campaign, needed to use the power of the state to protect their rights under city charter.

So, early in October, the realtors went to court to get their help in enforcing the law, by way of a writ of mandamus (an order compelling someone to do or not do something that is required by law) to open an investigation into the ‘loan’, or to appear in court to show cause why they shouldn’t be required to. The city decided not to, which brought us to last weeks hearing.

The idea behind the campaign finance reform was that large donations have a corrupting influence on the political process, leaving candidates beholden to those who donated large amounts of money to their campaigns. Donation limits would reduce that ability to corrupt. At the same time, candidates who spend their own money on a campaign (much like Mike Bloomberg did earlier in the year in the Democratic Presidential Primaries) can’t be corrupted by it because it’s already their money. The city laid out their four examples of what would have happened with a loan in a case like this:

  • Most loans, according to the city, are forgiven historically, and as such, wouldn’t be a violation of the charter
  • If the campaign paid back the loan before the end of the election cycle (unlikely, given how far in debt the Wheeler campaign is at this point), it still wouldn’t violate the charter
  • If donations were given to Wheeler after the end of the campaign, when limits reset again, it would depend on the election. If he won, existing laws regarding politicians receiving gifts would come into play.
  • If he lost re-election, since the donations would be to a private citizen, they wouldn’t have the ability to corrupt.

If the city’s view, none of these outcomes would run afoul of the law, so there was no way there could be a violation. And since the office only has one person assigned to handle campaign violations, with at least 70 such complaints already on their docket, it wasn’t an appropriate use of resources, a claim that the judge had concerns with because of the executive branch ignoring the legislative branch’s clear will.

They also brought up First Amendment concerns about investigating what they believed were baseless claims would violate Mayor Wheeler’s free speech. When the Judge Ryan asked why he or his campaign weren’t the ones bringing up the free speech complaints, the city responded simply that they weren’t a party.

When Mr. Kessler spoke, he explained that there is a strong difference in case law between grants and loans, and that state loan rules in Washington have not currently been struck down, as well as an ongoing case between Texas Senator Ted Cruz and the FEC under the kinds of circumstances regarding post-election donations that the city suggested. At the end of the day, none of these concerns have been addressed.

The judge, instead, focused on the fact that the city charter says that the auditor ‘will’ investigate these complaints, setting up a process that takes about 12 days for the city to receive feedback and evidence from the public and the campaign that the allegation is against. Because of the city’s initial delay, it’s all but guaranteed that the investigation cannot be completed before the election. The city clarified with the judge on the record that he was ‘directing the process, not the result’, leaving most, if not all, convinced that no matter what evidence is provided, any investigation will be pencil whipped as ‘not valid’, a decision that Mr. Kessler and the people he’s representing are sure to appeal.

All this has done is run out the clock on possible corruption until after the election and made more work for the lawyers, the judges, and more cost for the taxpayers in a time of hotly contested elections locally and around the country.

Or, as Judge Ryan put it: Really? There’s an election?

Audio of the hearing

For The Record Player

The company makes available a downloadable player, available here, as well as a web player available here. The uncertified, official records are available here:

Size: 52890055 bytes (50 MiB)
CRC32: 3DC2F486
CRC64: 9AFAE9571D766165
SHA256: A4B5AE240D12EBCCB9EFA83C6C5A90C23E67B46D5483EB331A5CAB7221E46F06
SHA1: ED215745A9A6E2D2E940BB20FA4C562E1C8883CC
BLAKE2sp: AF1A2882A1A7ACEAB78C2027B0D747B49ABF0718D0DC3B33DF23E8F32311490B

MP3 Version

I went ahead and converted the audio to an MP3 version for universal listening without any proprietary software.

Name: 20CV34116-20201023-Mandamus-FTR.mp3
Size: 15715296 bytes (14 MiB)
CRC32: 9EEC9A55
CRC64: 431351825E27AA34
SHA256: 42190BA451CC238221160BDA706073A83387C6953B402BBDE927D870D78D72C1
SHA1: 527C874F49919AA3CD9E6ED65682A138EB9BD60F
BLAKE2sp: B483A7FDF519D70A3C52CACD9C58B56D5CEB7B60150964535BFA09A50976ADD2

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