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Kelly Richardson, CMC
City Recorder / City of Molalla
117 N. Molalla Ave. / P.O. Box 248 / Molalla, OR 97038
503-759-0291 Direct / 503-829-3676 Fax
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From: Chad Jacobs
Sent: Monday, July 09, 2018 4:54 PM
To: Kelly Richardson
Subject: RE: July 11 Council Meeting
ATTTORNEY/CLIENT COMMUNICATION
PRIVILEGED AND CONFIDENTIAL
Gotcha.
So two issues here.
First, the Charter grants a certain amount of discretion to the Council in how to make an appointment to fill a vacancy. The Charter merely provides, “[a] vacancy in the office of mayor or councilor will be filled by a majority of the remaining council members.” The Charter does not dictate a process or a deadline by when such an appointment must occur. The council somewhat limited its discretion when it adopted sections 2.02.100 – 2.02.120 of the Molalla Municipal Code. Although they could be amended by the Council, these sections set forth a process for the Council to follow when declaring a vacancy and making an appointment to fill a vacancy. As with the Charter, however, these ordinances do not provide a deadline by which the Council must make an appointment. To that end, there is not a ton of legal risk if the Council decides to temporarily postpone an appointment. Certainly, someone seeking to be appointed could file a court action seeking to compel the Council to make an appointment, but as long as the Council is acting reasonably, I am doubtful that any such action would be successful. In other words, a court is likely to give great deference to the Council on such matters as long as their actions are reasonable.
Which brings us to the second issue – what is reasonable. Given that there is a Council election this fall, I think waiting until after the 2018 election to make the appointment is probably reasonable and thus, legally defensible. There is nothing wrong with the Council waiting to see who are the top choices of the public, and then perhaps appointing the person who just misses being elected to fill the vacancy. Likewise, one could argue that it is reasonable to wait for the next Council to make the appointment so that they can choose someone with whom they believe will work well with the newly elected Council. In other words, I believe there are strong defenses to any challenge that would seek a court order to have the Council make an appointment before the November, 2018 election. (Conversely, there’s nothing that stops them from making an appointment now).
On the other hand, waiting until the 2020 election is likely problematic from a legal perspective. Unlike the arguments above, I believe a court would likely look upon a delay until 2020 with a certain level of suspicion, and I am not sure that we would have many arguments to defend such a decision as reasonable.
Finally, the only other “legal” consideration is that waiting to appoint means that there would be an even number of councilors remaining on the Council, which could result in tie votes. Probably not a huge concern, but an issue nonetheless.
Otherwise, as long as the minimal procedures in the Code are being followed, and the actions of the Council are reasonable, they have a great amount of discretion in deciding how to proceed.
I hope that helps. As always, please let me know if you, Dan, the Mayor or any of the Councilors have follow up questions.
Best,
Chad
From: Kelly Richardson [mailto:krichardson@cityofmolalla.com]
Sent: Monday, July 09, 2018 4:11 PM
To: Chad Jacobs
Subject: RE: July 11 Council Meeting
Sorry yes 2020 Dragowsky resigned at the last meeting.
Kelly Richardson, CMC
City Recorder / City of Molalla
117 N. Molalla Ave. / P.O. Box 248 / Molalla, OR 97038
503-759-0291 Direct / 503-829-3676 Fax
PUBLIC RECORDS LAW DISCLOSURE
This email is a public record of the City of Molalla, Oregon and is subject to public disclosure unless exempt from disclosure under Oregon Public Records Law. This email is subject to the State Retention Schedule.
CONFIDENTIALITY NOTICE
This e-mail message contains confidential information belonging to the sender or receiver. The information in this message is intended for the addressee’s use only. If you are not the intended recipient you are hereby notified that you are prohibited from reading, using, disclosing, copying, or distributing this information in any way; further, you are prohibited from taking any action based upon the contents of this e-mail. If you have received this e-mail by mistake, please delete it immediately. For further questions call our office at 503-759-0291.
From: Chad Jacobs Chad@gov-law.com>
Sent: Monday, July 09, 2018 4:10 PM
To: Kelly Richardson krichardson@cityofmolalla.com>
Subject: RE: July 11 Council Meeting
Kelly,
Could you clarify for me – as I understand it, there are no sitting councilors whose term expires in 2022 – only 2018 and 2020. Did you mean waiting until the term expires in 2020?
Thanks,
Chad
From: Kelly Richardson [mailto:krichardson@cityofmolalla.com]
Sent: Monday, July 09, 2018 4:05 PM
To: Chad Jacobs
Subject: July 11 Council Meeting
Importance: High
Chad,
At the July 11 meeting Council will be declaring a seat vacant and then opening it for people to apply. Dan just informed me councilors are discussing waiting to fill it until the election the term expires on December 31, 2022. This would not be my recommendation to wait that long. Plus the seats at the general election that have been advertised are full 4 year terms. If you have any thoughts on the process please let me know so I can share them.
Thanks,
Kelly Richardson, CMC
City Recorder / City of Molalla
117 N. Molalla Ave. / P.O. Box 248 / Molalla, OR 97038
503-759-0291 Direct / 503-829-3676 Fax
PUBLIC RECORDS LAW DISCLOSURE
This email is a public record of the City of Molalla, Oregon and is subject to public disclosure unless exempt from disclosure under Oregon Public Records Law. This email is subject to the State Retention Schedule.
CONFIDENTIALITY NOTICE
This e-mail message contains confidential information belonging to the sender or receiver. The information in this message is intended for the addressee’s use only. If you are not the intended recipient you are hereby notified that you are prohibited from reading, using, disclosing, copying, or distributing this information in any way; further, you are prohibited from taking any action based upon the contents of this e-mail. If you have received this e-mail by mistake, please delete it immediately. For further questions call our office at 503-759-0291.