INTRODUCTION COMPLAINING PARTY RESPONDENTS BACKGROUND FACTS

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1 TO: FROM: Oregon Secretary of State Eleanore Hunter, an Elector RE: Complaint of Election Law Violation Pursuant to ORS DATE: April 5, 2013 INTRODUCTION 1. This is a complaint of an election law violation, submitted pursuant to ORS The complaining party is Eleanore Hunter, an Elector. The election law violation complained of is that the Explanatory Statement prepared by Clackamas County Strategic Policy Administrator Dan Chandler, signed by Clackamas County Board of Commissioners Chair John Ludlow, and submitted on behalf of the Clackamas County Board of Commissioners, contains a false statement of material fact relating to proposed Clackamas County Measure (the "Measure"), slated for the May 21, 2013 Special District Election ballot. COMPLAINING PARTY 2. Complaining party Eleanore Hunter is an Elector within the meaning of ORS (2) and Article I, Section 2, of the Oregon Constitution. She resides within and is registered to vote in Clackamas County, Oregon. Petitioner has standing to submit this Complaint pursuant to ORS RESPONDENTS 3. John Ludlow is the Chair of the Clackamas County Board of Commissioners and the signer of the March 21, 2013 Explanatory Statement that is the subject of this action. 4. Dan Chandler is the Strategic Policy Administrator for Clackamas County and the person responsible for the content of the March 21, 2013 Explanatory Statement which is the subject of this action. 5. The Board of County Commissioners for Clackamas County is the governing body responsible under ORS for submitting the March 21, 2013 Explanatory Statement that is the subject of this action. BACKGROUND FACTS 6. Tr-County Metropolitan Transportation District of Oregon ("Tr-Met") is a mass transit district that, among other things, operates a light rail system in Clackamas,

2 Multnomah and Washington counties. An expansion of that system, the Portland-Milwaukie Light Rail Project ("PMLR"), is currently under construction. 7. In March 2010, the Board of County Commissioners for Clackamas County (the "Board"), acting on behalf of the County, the Clackamas County Development Agency, and the North Clackamas Parks and Recreation District, entered into an intergovernmental grant agreement ("IGA") with Tr-Met regarding the PMLR and setting out the rights and obligations of the parties regarding funding, design, and construction. The IGA requires the parties to use their best efforts and fully cooperate and coordinate with each other to ensure completion of the PMLR in accordance with the terms of the IGA. 8. In August 2012, the Board (on behalf of the County) and Tr-Met entered into a supplemental agreement ("Supplemental IGA") regarding the county s share of funding for the PMLR as well as permit fees and development charges. 9. The IGA and Supplemental IGA obligate the County to fund some $1.2 million in road and signal improvements, to permit Tr-Met to use and occupy certain portions of county roads and sidewalks, and to transfer to Tr-Met a particular parcel of real property valued at $20,915. Additionally, and pursuant to the IGA s full-cooperation clause, the County is obligated to transfer to Tr-Met another parcel of real property valued at $1, On September 18, 2012, Clackamas County voters approved Ballot Measure ("Measure "), which is codified as Clackamas County Code section Measure provides, in part, that the Board "may not authorize the use of county resources for the financing, design, construction, or operation of any public rail transit system without first obtaining the approval of county voters at an election on an authorization ordinance." Clackamas County Code section (A). 11. Before the September 2012 election, the Office of County Counsel for Clackamas County provided an opinion to the Board that, if approved, Measure would not affect the County s existing obligations to Tr-Met with respect to the PMLR project. 12. Measure became effective immediately upon its passage, and, as a matter of law applies only prospectively to obligations or county resource authorizations that arise on or after its effective date. 13. On February 21, 2013, the Board adopted Resolution That resolution, which twice cites Measure 3-401, directs that Measure be placed on the ballot for the May 21, 2013 election to seek authorization for the Board to use specified County resources to fulfill the contractual obligations described in paragraph 9 above. Under the IGA and Supplemental IGA, however, the County already is obligated to perform those obligations, and Measure was neither intended to have nor as a matter of law has any retroactive effect. 14. The ballot title that the Board prepared and adopted for the Measure provided, among other things, that Measure "calls for a public vote before any County resources are used for Public Rail Transit[,]" and also that the Measure seeks voter approval "Li]n accordance with Measure 3401* * KS" (Emphasis and brackets added.) Those statements were false and misleading. 2

3 15. The Explanatory Statement that the Board prepared and adopted for the Measure provides, among other things, that Measure "requires voter approval before the Board of Commissioners authorizes the use of any County resources for public rail transit[ ]" and that "[r]ejection of this Measure would mean that the Board of Commissions [sic] will not have obtained approval of an authorizing ordinance as required by Measure " (Emphasis and brackets added.) Those statements are false and misleading. A copy of the Explanatory Statement is attached as Exhibit A ballot title review challenge was filed by an elector in the Clackamas County Circuit Court with respect to the ballot title that the Board had prepared and adopted. On March 18, 2013, the Honorable Deanne L. Darling, Circuit Court Judge, issued a letter opinion granting the elector s petition, and finding the Board s ballot title insufficient and unfair, adopting the reasoning in the elector s memorandum, and certifying a ballot title consistent with the petition. On March 19, 2013, the Court signed a judgment certifying to the Clerk a ballot title removing the references to Measure 3-401, removing the word "any" as modifying County resources, and stating expressly that "[a]pproval or rejection of the ordinance will not affect the County s obligations with respect to [the County s] previous [PMLR] contractual commitments." A copy of the March 19, 2013 Judgment is attached as Exhibit 2. ELECTION LAW VIOLATION 17. Although Circuit Court Judge Darling reviewed and corrected the ballot title, the statutory authority for that process does not include review of the Explanatory Statement prepared by the governing body of the County under ORS That statute requires that the governing body "submit an impartial, simple and understandable statement explaining the measure and its effect." Because the Explanatory Statement prepared by Mr. Chandler, signed by Mr. Ludlow, and submitted by the Board did not make the corrections required by the Court for purposes of the ballot title, and instead continues to contain false and misleading assertions, the statement is not impartial as required by ORS The Explanatory Statement also violates ORS (1), which prohibits causing a false statement of material fact relating to any measure to be written, printed, published, posted, communicated or circulated, with knowledge or with reckless disregard. 18. The March 21, 2013 Explanatory Statement prepared by Dan Chandler, signed by John Ludlow, and submitted by the Board, is materially false and misleading. It either expressly states or strongly implies that Measure mandates the placement of the Measure on the ballot. However, Measure applies prospectively only, and does not apply to existing contractual obligations such as the four subject items relating to the PMLR. In particular, the final substantive sentence in the Explanatory Statement is simply false: "Rejection of this Measure would mean that the Board of Commissions [sic] will not have obtained approval of an authorizing ordinance as required by Measure " 19. The Explanatory Statement was drafted, signed, and submitted with knowledge of the falsity of the statement, or at least with reckless disregard, because the statement was submitted on March 21, The Circuit Court had rendered its decision 3

4 invalidating the ballot title on March 19, The Explanatory Statement could have been, but was not, submitted with language consistent with the ballot title ordered by the Court. REQUEST FOR INVESTIGATION AND DETERMINATION OF VIOLATION 20. Elector respectfully requests that the Oregon Secretary of State investigate and determine an election law violation based on the matter- described above. ElŒanore Hunter, Elector SE Laurie Avenue Oak Grove, OR Ll

5 ORS CLACKAMAS COUNTY EXPLANATORY STATEMENT FOR COUNTY VOTERS PAMPHLET ELECTION DATE [THIS INTERACTIVE FORM CAN BE FILLED IN ON-LINE] May 21, BALLOT TITLE CAPTION Use of Certain County Resources for Portland Milwaukle Light Rail NAME OF PERSON RESPONSIBLE FOR CONTENT OF STATEMENT Dan Chandler, Strategic Policy Administrator NAME OF ORGANIZATION PERSON REPRESENTS, IF ANY Clackamas County MEASURE NUMBER TELEPHONE (HOME) TELEPHONE (WORK) 503/ FAX NUMBER ADDRESS 503/ PLEASE SEE ATTACHED The total word I number count r yexceed)rds / numbers. Word/ number count total: f SIGNATURE OF PERSON NT OF STATEMENT DATE Exhibit I 1 of 3

6 EXPLANATORY STATEMENT In September, 2012 County voters approved Measure 3-401, which requires voter approval before the Board of Commissioners authorizes the use of any County resources for public rail transit. TriMet is constructing the PMLR line, which will run from Downtown Portland to a proposed station near the intersection of Park Avenue and McLoughlin Boulevard, The PMLR line will run along an alignment selected by area governments as the Locally Preferred Alternative in In February, 2010, the Board of County Commissioners (Board) approved an Agreement with TriMet for the PMLR project. Under the Agreement, the County agreed to provide $25 million toward the project, and also agreed to negotiate in good faith for any further agreements that might be necessary to complete the project. The Clackamas County Development Agency and the North Clackamas Parks and Recreation District were also parties to the agreement. In August of the Board approved a Supplemental Agreement which reduced the County s cash contribution by $2 4 million dollars As part of the agreement, the County agreed to fund ro d and signalization improvements to roads in and around the intersection of Park Avenue and Oatfleld Road, The County also agreed to transfer to TriMet a small (2,614 square foot) parcel of property for which the County will receive a credit of $20,915. In addition, this measure addresses a small, landlocked parcel (3485 square feet) that would be conveyed to TriMet for construction of the Trolley Trail and retaining walls. TriMet values the property at approximately $1.360 Approval of this measure would constitute approval by the voters of an authorizing ordinance authorizing the following four items related to the Portland/Milwaukie Light Rail line: Execution of a funding agreement funding $1,279,740 in road and signalization improvements in the vicinity of Park Avenue, Oatfield Road and McLoughlin Boulevard. TriMet will pay $279,740 of that amount In Systems Development Charges, while the remainder will come from the County Road fund. All of these improvements were previously set forth in the County Transportation System Plan. Execution of a Continuing Control Agreement providing that TriMet will control any portions of county-owned streets and sidewalks that will be occupied by light Exhibit of 3

7 rail tracks or stations. This agreement is required by the Federal Transit Administration. MAPS OF THE SUBJECT PROPERTIES, AND COPIES OF THE AGREEMENTS DISCUSSED ABOVE ARE AVAILABLE AT The actions authorized by this measure would be one-time authorizations that end with the completion of the project. The, cost of staff time for completion of these items would not be likely to exceed $ Rejection of this Measure would mean that the Board of Commissions will not have obtained approval of an authorizing ordinance as required by Measure Dan Chandler, Strategic Policy Administrator, Clackamas County Exhibit 1 3 of 3

8 1 3 c S TA TE or PEG N l3! 1R FM 2:4 5 N THE CIRCUIT COURT OF THE STATE OF OREGON 6 FOR THE COUNTY OF CLACIcAMAS 7 S KEITH M. GARZA I an individual ) Case No, CV elector, ) 9 ) Petitioner, ) GENERAL JUDGMENT AND 10 V. ) MONEY AWARD ii BOARD OF COUNTY COMMISSIONERS OF CLACKAMAS ) 12 COUNTY, a public body, ) 13 Respondent, ) 14 IS This matter carne before the Curt on a petition to review ballot title purauant to ORS ,195, The Court reviewed the submissions of the parties and, on March 1, 2013, issued a 17 letter opinion that (1) adopted the reasoning set out by petitioner in his memorandum in support 18 of the petition to review ballot title; (2) graxted the petition to review ballot title; (3) found that 19 respondent s ballot title is insufficient and unfair; and (4) certified a ballot title consistent with 20 the petition. 21 Wherefore, it is hereby ADJUDGED as follows: 22 (1) The following ballot title is certified to the County Clerk: 23 CAPTION: 24 Use of Certain County Resources for Portland Milwaukie Lighi Rail 25 II 26 /1 Page I - GENERAl, JUDGMENT AND MONEY AWARD Exhibit 2 1of3

9 QUESTION - 2 Should Clackamas County use certain County resources to meet previous 4 SUMMARY: contractual commitments toward the Portland Milwaukia Light Rail Project? 5 Agreements signed by prior Board of County Commissioner in 2010 and obligate the County to use the following County resources toward completion of *lrn Lj T!L _I the Portlandwiuwauicie LgLI..aii rlujccl: 8 funding $1,279,740 in improvements to roads and signals near the r-11 proposed Park Avenue Light Rail Station, with the funding sources to be 10 the County Road Fund and $279,740 in Systems Development Charges to Ii be paid by Tr-County Metropolitan Transportation District of Oregon 12 ("TniMet"); 13 allowing TriMet to conduct operations on and maintain portions of county 14 roads and sidewalks occupied by Portland Mi)waukie Light Rail facilities; 15 and 16 transferring two parcels of real property to TriMet: a 2,614 square foot 17 parcel valued at $20,915, and a 3,485 square foot parcel valued at $1, This Measure seekq voter approval of an ordinance authorizing the Board to use 19 those County resources to meet the County s previous contractual commitments 20 toward the Portland Milwaukie Light Rail Project. Approval or rejection of the ordinance will not affect the County obligations with respect to those previous 1) contractual commitments. 23 (2) Petitioner is entitled to his reasonable costs and disbursements incurred herein 24 in the amount of $ II 26 II Page 2 GENERAL JUDGMENT AND MONEY AWARD Exhibit 2 2 of 3

10 S JUDGMENT CREDITOR: MONEY AWARD Keith M. Garza Address: P.O. Box Oak Grove, Oregon Attorney for Judgment Creditor: 3. JUDGMENT DEBTOR: Address: 14. Attorneys for Judgment Debtor: 5 Principal Amount of.judgment 6, Prejudgment Interest: 7. Attorney Pecs: 8, Costs and Disbursernents: 9. Post-Judgment Jritorcsl: 10, PersonlPubtic Body Ent1tld to Portion: DATE!.) this, day of March SUBMITTED BY: Keith M. Garza, OSB No Law Office of Keith M. Garza P.O. Box Oak Grove, Oregon (503) (503) (facsimile) ithrza()-qorn cast. net N/A The Board of County Commissioners for Clackamas County 2051 Kam Road Oregon City, Oregon Stephen L. Madkour County Counsel A1eander Gordon Asssthnt County Counsel 2051 Kaen Road Oregon Cily. Oregon Telephone: (503) N/A N/A N/A $300 On item 8 at the rate of 9% per annum from the date of critxy of judgment until fully paid. Page 3 GENEFL JUDGMENT AND MONEY AWARD Exhibit 2 3 of 3