BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF OREGON
for the
SECRETARY OF STATE
ELECTIONS DIVISION
IN THE MATTER OF:SARAH AMES,
Respondent / ) PROPOSED ORDER
)
) OAH Case No.: 1102579
) Agency Case No.: 11-102-SA
HISTORY OF THE CASE
On August 24, 2011, the Elections Division(Division) issued a Notice of a Final Determination and Intent to Impose a Civil Penalty; Contested Case Notice and Opportunity to be Heard, and Final Order by Default Imposing Civil Penalty if No Request for Hearing is Received (Notice of Violation) to Sarah Ames (Ames).[1] On August 24, 2011, the Division issued a Notice of Violation to Katherine Essick (Essick). On October 25, 2011, Amesand Essick both requested a hearing.
On October 26, 2011, the Division referred the hearing requests to the Office of Administrative Hearings (OAH) and requested that the cases be consolidated for hearing. Senior Administrative Law Judge (ALJ) Dove L. Gutmanwas assigned to preside athearing.
On February 13, 2012, aconsolidated hearing was held in Salem, Oregon. ALJ Gutman presided. Nancy Hungerford, Attorney at Law, represented Ames and Essick.[2] Assistant Attorney General Lynn Rosik represented the Division. Ames and Alana Cox, a Division Compliance Specialist,both testified.
On March 5, 2012, the hearing reconvened. ALJ Gutman presided. Ms. Hungerford represented Ames and Essick. Ms. Rosik represented the Division. Ames and Essick both testified. The record was held open to receive closing arguments and reply briefs. On March 30, 2012, the Division and Ms. Hungerford filed closing arguments. On April 13, 2012, the Division filed a reply brief. On April 16, 2012, Ms. Rosik submitted copies of Exhibit C1 pages 62-68.[3] The record closed on April 16, 2012.
ISSUES
1. Whether Ames violated ORS 260.432(2).
2. Whether a civil penalty in the amount of $75 shall be imposed against Ames.
EVIDENTIARY RULING
Division. Exhibits A through F were admitted into evidence without objection.
Ames. Exhibits 2 through 4, 6 through 12, and 14 through 19 were admitted into evidence without objection. Page 2 of Exhibit 1 was admitted into evidence without objection. Page 1 of Exhibit 1 and Exhibit 13 were withdrawn by Ames. Exhibit 5 was admitted into the record over the Division’s relevance objection.
FINDINGS OF FACT
Background
1. In 2010 and 2011, Carole Smith was the Superintendent of Portland Public Schools (PPS); Jollee Patterson was general counsel at PPS; and Jeff Condit was outside counsel for PPS. Among other things, Ms. Patterson and Mr. Condit were responsible for reviewing materials for compliance with election law. (Test. of Ames; Ex. C1 at 1-3.)
2. In 2010 and 2011, Robb Cowie was the Executive Director of Community Involvement and Public Affairs (CIPA) at PPS; C.J. Sylvester was the Chief Operating Officer of CIPA; Ames was the Public Affairs Director of CIPA; Matt Shelby was the Public Information Officer of CIPA; Kathryn Essick (Essick) was the Family Communications Manager of CIPA; and Brian Christopher (Christopher), Francisco Garcia (Garcia), and Richard Martin (Martin) were part of the Educational Media Services of CIPA. (Test. of Ames, Essick; Ex. C1 at 1-3.)
3. Mr. Cowie was the supervisor of Ames and Essick. Ames was the point person for bond communications. She was responsible for drafting and editing materials. Essick was responsible for copy editing and oversight of the PPS Pulse, a monthly e-newsletter sent to approximately 40,000 members of the PPS community. Christopher, Garcia, and Martin provided technical production support in graphic design and web posting. (Test. of Ames, Essick, Ex. C1 at 1-3.)
4. The PortlandSchool District islocated in Washington, Clackamas, and Multnomah counties. (Test. of Cox.)
5. On or about November 8, 2010, Superintendent Smith proposed a bond measure to the Portland Public Schools Board of Directors. (Test. of Ames; Ex. C1 at 78.)
6. On December 8, 2010, a document entitled “Frequently Asked Questions: The PPS School Modernization Proposal” wasposted on the PPS website. The document answered many of the questions posed to PPS by community members.[4] The document provided, in part:
1. How big is Portland Public Schools?
Portland Public Schools is the largest school district in Oregon with roughly 47,000 students in 85 schools, including neighborhood and focus schools, in addition to charters, alternatives and special programs. Portland Public Schools is the second largest property owner in the city and one of the region’s largest employers with more than 6,000 teachers and school support staff.
2. How old are the school buildings?
The average age of PPS schools is 65 years old. Most were built either in the 1920s or just after World War II. Only two schools have been built in the last 40 years (Rosa Parks Elementary in North Portland and Forest Park K-8 in Northwest). While PPS has added computers and other technology to schools, and has addressed some of the most urgent building needs – such as earthquake safety and roof replacement – our school buildings have never been fully updated.
3. Why is Superintendent Carole Smith proposing a bond measure?
PPS students do not have the same up-to-date classroom equipment, technology and other modern learning spaces as students in the neighboring school districts with newer buildings.
PPS school buildings have never been fully updated. The buildings have worn out with leaking roofs and drafty windows; energy-inefficient and antiquated heating, ventilation and plumbing systems; overtaxed electrical systems with few outlets and outdated safety systems.
A bond will provide dedicated money to address these needs and provide student and teachers with modernized schools. Without a bond, Portland Public Schools must continue to use scarce operating dollars for the most urgent building needs.
4. What will the proposed school building bond buy?
All 85 schools will receive one-time student safety, security and building system updates, such as: replacing roofs, updating boilers, improving accessibility for disabled students and adults, and increasing student safety and security by installing new fire alarm systems, making seismic upgrades and providing secure access at entryways.
All schools will receive updates to classroom learning environments and updated teaching technology. Every K-8 and middle school (37 schools) will have an upgraded science lab, and 33 elementary and K-8 schools will have covered playground areas for outdoor physical education and recreational use. Six high schools not being rebuilt will have classroom updates to support rigorous teaching and learning, and will receive updates to their sites, such as landscaping, seed money for field upgrades, lighting, signage, walkways and renovated entrances.
Schools across the city with high-priority needs – out-dated educational environments and safety and structural concerns – will be rebuilt. Three high schools and five elementary and K-8 schools will be rebuilt and modernized, so PPS students have the same technology, equipment and up-to-date learning environments as students in neighboring school districts with newer buildings. The schools are Cleveland, Jefferson and Roosevelt high schools, and Faubion, Laurelhurst, Markham, Marysville and Rigler elementary and K-8 schools. In addition, Lincoln will undergo comprehensive planning and design to prepare it for rebuilding in the next voter-approved bond.
To lower costs and save taxpayer funds, debt will be retired on funds borrowed to complete RosaParksSchool and the nine school roofing projects completed in 2009 that included seismic upgrades and solar energy collection.
*****
9. What will the initial proposed construction bond cost me?
This bond will raise $548 million for classroom, safety and security improvements at every school in the district over six years. The typical homeowner would pay about $300 a year, or about $25 per month.
The proposed bond’s rate – approximately $2 per $1,000 of taxable assessed value – is in the middle of the rates voters approved in neighboring school districts, which range from about $1 to over $4 in some school districts.
Portland Metro Area School Districts
FACILITIES BOND RATE
Gladstone$4.54
Sherwood$4.07
Forest Grove$3.53
West Linn-Wilsonville$2.97
Riverdale$2.85
Hillsboro$2.61
Corbett$2.55
Canby$2.31
Oregon Trail$2.27
Centennial$2.26
Beaverton$2.09
North Clackamas$2.08
David Douglas$1.61
OregonCity$1.41
Tigard-Tualatin$1.38
Reynolds$1.13
Parkrose$1.08
Gresham Barlow$1.06
Lake Oswego$1.04
Portland Public Schools$0.00
AVERAGE$2.25
The median home in the Portland Public Schools district is worth $277,700 (Real Market Value) and is taxed at a value of $147,500 (Taxable Assessed Value). Half of the homes are worth more, half less. To calculate your own cost, multiply the Taxable Assessed Value (TAV) on your bill by $2 and then divide by 1,000. That’s the approximate annual rate; if you pay monthly escrow, divide by 12 for your monthly cost.
Portland Public Schools’ taxes are just over a quarter of local property tax bills, 27 percent. Although overall property tax rates are higher in Portland than in surrounding areas, which is due to other government authorities’ tax rates, as [sic] school property taxes are lower. In general, an estimated $2 increase in the PPS tax rate would lead to a 9 percent increase in taxpayer’s overall rate.
(Ex. C1 at 67-78; emphasis in original.)
7. On January 6, 2011, PPS filed Ballot Measure 26-121 with Multnomah County Elections, which stated, in pertinent part:
CAPTION
PORTLAND PUBLIC SCHOOLS
BONDS TO UPDATE, RENOVATE LOCAL SCHOOL BUILDINGS
QUESTION
Shall PPS update, rebuild, increase safety at public schools; retire debt; issue $548 million in general obligation bonds, audit spending? If the bonds are approved, they will be payable from taxes on property or property ownership that are not subject to the limits of sections 11 and 11b, Article XI of the Oregon Constitution.
SUMMARY
Portland Public Schools buildings average 65 years old. Safety, security, classrooms and technology are out of date in nearly every building.
Bond funds support capital projects at 95 schools:
86 schools receive updates such as:
Fire and life safety;
Electrical, plumbing, lighting, roofing, heating, security;
Earthquake safety, handicapped accessibility;
Modern science classrooms;
Classroom teaching technology;
School grounds, exteriors, fields.
9 schools rebuilt:
N/NE Portland: Roosevelt High; Faubion, Rigler, Laurelhurst
SE Portland: Cleveland High; Marysville
West Portland: Markham Elementary, East Sylvan on West Sylvan campus
MiddleCollege Program with PortlandCommunity College at Jefferson High.
Planning, design to prepare for rebuilding Lincoln High
Bond funds will retire existing school projects debt.
Citizen oversight and annual audits of bond projects and expenditures are required.
Most bonds mature in 1-3 years to minimize interest expense. Cost estimated to be approximately $2 per $1,000 assessed property value for six years, then reduced.[5] Median homeowner pays $300 annually for six years, reduced to approximately $22 annually.
(Ex. A3 at 1-6; emphasis in original.)
8. On February 7, 2011, a document entitled “From the Superintendent” was issued to all PPS employees. The document provided, in relevant part:
Dear [member name],
I just wanted to let you know that the Portland School Board has referred a replacement local option levy to the May 17 ballot. In short:
- State funding is 75 percent of our general education funding; the Governor’s budget proposal for the State School Fund could leave PPS with an $80 to $90 million shortfall over the next two years.
- The levy would provide an additional $19 million a year. This will pay for more than 200 positions in our schools – teachers and classified educational staff.
- The rate, at $1.99 per $1,000 of taxable assessed value, is 74 cents higher than the 2006 levy it would replace. The levy will cost the typical homeowner an estimated $24.45 a month, an increase of $9.09 per month over the current levy.
- The additional funding from the local option would help retain educational staff, programs in our schools and class sizes. However, PPS would still need to make substantial budget cuts.
I continue to work with our budget office, principals and other members of the staffing team, and PPS leaders to plan for next year. Voters will not decide on the local option until May 17, so I will prepare a budget both with and without that additional $19 million in staffing support.
I know this difficult budget time adds uncertainty for everyone in the school district – employees, students, families and our partners. I will continue to share the information I can and to invite your input.
Thank you for all you do for our students.
[signature]
Carole Smith
P.S. As with the school facilities bond measure, restrictions on public employee campaigning apply to the local option. You may share factual information, but may not advocate for or against the local option levy while at work or using any district resources. The guidelines for public employees are posted online for easy reference.
(Ex. C1 at 18-19; emphasis in original.)
9. On February 18, 2011, PPS filed Ballot Measure 26-122 with Multnomah County Elections, which stated, in material part:[6]
CAPTION
Portland Public Schools levy for teacher and educational programs.
QUESTION
Shall schools protect class size, teaching positions; levy $1.99 per $1,000 assessed value for five years beginning 2011; require oversight?
This measure may cause property taxes to increase by more than three percent.
SUMMARY
Portland Public Schools’ voter-approved local option levy currently provides funding for retaining teachers and providing instructional programs that students need for a well-rounded education. As PPS responds to substantial cuts in state funding to local schools, continuing a local option will:
Fund 600 teaching positions (some in every school), including 200 that would be lost in the coming school year due to state budget cuts without levy funds;
Prevent substantial increases in class size so students receive more individual attention from teachers;
Continue educational programs necessary for a well-rounded education.
Levy cost is $1.99 per $1,000 assessed property value of which $1.25 per $1,000 assessed property value is currently being paid. Typical home currently pays $15.36 per month which would be replaced by payment of $24.45 a month for five years.
No levy funds go to administration. Independent citizen oversight will review expenditures so funds are used as approved by voters.
The levy will produce an estimated $57 million in 2011-12; $58 million in 2012-13; $62 million in 2013-14; $65 million in 2014-15; and $66 million in 2015-16.
(Ex. A3 at 7-10; emphasis in original.)
10. On April 2, 2011, Betsy Hammond published an article in The Oregonian that stated, in relevant part:
Portland Public Schools’ building plan comes with a premium price tag
Portland Public Schools leaders have presented their $330 million plan to remake nine of the districts’ aging schools as prudent, low-to mid-cost and in line with surrounding districts.
But an analysis by The Oregonian shows that the district plans to spend $325 a square foot to fully renovate six old schools and $415 a square foot to build a small, updated Jefferson High.
Those rates are at least 15 percent to 30 percent higher than average school construction costs for the region as reported in School Planning & Management’s 2011 Annual School Construction Report and extrapolated from construction cost specialist Rider Levett Bucknall’s quarterly cost estimates. They also far exceed the costs that districts including Beaverton and North Clackamas have paid to build or fully remodel schools in recent years.
The largest project Portland proposes, a full-scale renovation of 1920s-era Cleveland High for an estimated 2011 price tag of $80 million, would be among the most expensive high schools ever built or rebuilt in Oregon. The projects would be paid for by a $548 million bond on the May ballot. If voters pass the bond, the typical homeowner will pay about $300 a year to foot the bill.
Portland Public Schools’ chief operating officer, C.J. Sylvester, and director of school modernization, Sarah Schoening, have repeatedly characterized the district’s plans as durable, practical and without extravagance. Both said the costs would be at the midrange or low end of midrange compared with other schools in the region.
But regional cost summaries by the two companies that track school construction, plus a sampling of recent school construction projects analyzed by both The Oregonian and Portland Public Schools, all show that Portland plans to spend significantly more than average to fully remodel and update schools with a glaring need to be modernized.
Portland’s projected costs “certainly do not fit in what would be called the low to middle range, that’s obvious,” said Paul Abramson, an education construction consultant and author of School Planning & Management’s annual school-construction reports.
Among area school districts, only West Linn-Wilsonville and Riverdale have spent as much as or more than Portland is budgeting. Those districts, where leaders say their voters insist on the finest learning environments for their students, budgeted $400 to $460 a square foot for small elementary schools in the past couple of years.
Sylvester and Schoening defend Portland’s construction budgets as responsible, ensuring that the district can fully remake eight schools and a wing at a ninth school, West Sylvan Middle School, without compromising student safety or school durability – or running over budget. Experts in design and construction costs have reviewed and endorsed the district’s numbers, they said.
District officials can’t cite a high school in Oregon that cost anywhere near $325 a square foot to renovate or $415 to build from scratch. But they caution that relatively few schools have been built recently and few high schools undergo in-depth remodels like Portland plans.
(Ex. C1 at 85-90; emphasis in original.)
11. On April 2, 2011, in response to the article in The Oregonian, C.J. Sylvester issued a letter that stated, in material part:
To the Portland Public Schools community:
The proposed bond for Portland’s Schools will rebuild deteriorated school buildings while providing safety, structural upgrades and modernized learning environments. The list of projects is significant, as are the measures taken to ensure the construction and financing connected to the bond is accountable, transparent and appropriate.