Rep Buckley wrote:

Ron & Matt--

Thanks for looping me in on this discussion. Just to be very clear on this: I am not receiving any compensation whatsoever for attending and participating in this event, and there is no use of state funds through my office to pay for my attendance. This is a public forum on health care. If there is a potential conflict of interest that I can't see in this, please let me know what you might think it is. Health care is a crucial issue for Oregon--I know that Bates, Westlund and Richardson all share the view that we absolutely must address the crisis we're facing. I appreciate your concern for transparency in funding, but this isn't a campaign event (heck, my district is over two hundred miles away from Portland...).

Onward,
Rep. Peter Buckley

The for-profit PR firm of "NW GRASSROOTS AND COMMUNICATIONS, INC." is using your participation, and that of the other elected official speakers, as a fund raising tool for themselves.

Toward this end they registered an assumed business name on September 23, 2005, "FOUNDATION FOR THE ADVANCEMENT OF COMMUNITY HEALTH CARE."

They have used this non-profit sounding name in conjunction with their campaign for the health care forum, and more particularly with their appeals for cash donations noted here:
http://www.nwgrassroots.com/ohp_info.html

That name, the one without a reference to their for-profit incorporated PR status, is [presently] in violation of state [statutes] pertaining to the naming of companies.

My goal, as to you (Mr. Buckley), was to alert you to this fact such that you could not plead ignorance to this clearly and obviously deceptive method of raising cash. It is to assure that the "knowingly" element of ORS 162.415 has been met.

Review RACKETEERING ORS 166.715 to 166.735, and its link to ORS 162.405 and ORS 162.415
http://www.leg.state.or.us/ors/162.html
http://www.leg.state.or.us/ors/166.html

ORS 162.415 provides:

162.415 Official misconduct in the first degree. (1) A public servant commits the crime of official misconduct in the first degree if with intent to obtain a benefit or to harm another:
(a) The public servant knowingly fails to perform a duty imposed upon the public servant by law or one clearly inherent in the nature of office; or
(b) The public servant knowingly performs an act constituting an unauthorized exercise in official duties.
(2) Official misconduct in the first degree is a Class A misdemeanor. [1971 c.743 §215]

Note in particular the use of your position with the "intent to obtain a benefit [for] another" while knowing of the clearly unlawful naming noted above and the express effort by such entity to obtain elicit funds for their personal benefit. They (and Mr. Riggs personally) will clearly benefit by your participation (just as did Mr. Bill Sizemore from his political activism). Whether they will or will not then use that benefit for your benefit, directly related to election campaigning, is not even a fact question for finding a violation. It is enough that they benefit; though the specter that they might help you personally in campaigning is a wholly separate issue pertaining specifically to political action committees and reporting of the names and occupations of donors, but that -- I repeat -- is a distinct issue.

As to the topic of the forum -- health care -- you need only read my amicus brief to the Oregon Supreme Court on the Strunk case (PERS reform), where I superimpose the liability limitation provision for PERS against that of the liability limitation for the provision of medical care to the needy. I note therein also a separate and distinct provision that mandates that counties such as Multnomah County have a duty to cover medical costs for the needy even where the state does not supply the funding.

While I was challenging Measure 29 bonds in late 2003 I could have instead been addressing the particular needs and challenges faced by my cousin, and her kids. In March, 2004, she died after being denied care by the Portland area medical care folks, even after several visits by professionals in February 2004, after it was abundantly clear that she was a danger to herself and to others due to her condition.

In the interest of disclosure: I preserved a claim against the state and Multnomah County and OHSU, in a potential wrongful death action on behalf of my cousin's kids, and need to still find the right attorney that is willing to buck the politics of health care funding. The only thing standing in my way from bringing an action directly is the Oregon State Bar, notwithstanding my legal education

My first introduction to the funding issues came by way of osmosis as my mom was involved in [] pushing for group home settings for folks being released from Dammasch. I was a teenager way back then. She can claim to be one of the founding members of NAMI (and precursor local entities).

Rest assured that I could, and perhaps should, be a speaker at the forum. But, of course, I would paint folks like Mr. Riggs, and his self-serving tactics related to the health care forum [as] one of the very problems facing health care funding for the needy. I would like to deliver to him the legal equivalent to a punch in the nose. He wants to wave the plight of the poor so as to fund his efforts. The least he could do is to immediately fix the deceptive name he is using to raise funds.

One challenge back when my mom was more actively involved was the competition for funding between mentally handicapped and mentally disturbed. Today, the most salient conflict is that between the private for-profit investment interests of a class of Oregonians known as PERS beneficiaries, and their partners in the investment banking community, as against the needs of the genuinely needy. What else is it that you think would motivate a poor person like me with a legal education (flawed as it might be) to drop everything to attack PERS? It is certainly not because I hate paying taxes for I have no income to speak of.

Back to the forum. You need to specifically threaten to not show up unless the " FOUNDATION FOR THE ADVANCEMENT OF COMMUNITY HEALTH CARE" fixes their name so as to comply with the laws on naming of corporations. The naming -- as if they are a non-profit corporation, so as to solicit funds -- is absurd, and needs to be addressed, even if I need to find a legal method to stick you to do it . . . . and I will. Why else do you think I sent my letter to you?

What might be in my personal financial self-interest? It is only through my advocacy in the public interest to a higher level than that of so-called public interest groups and lawyers that I may one day make a good demonstration to the Oregon Supreme Court . . . so that I may practice law for a fee rather than just for free, but only so long as I do not represent a particular person.

Ron Ledbury
Oregon Center For Poverty Law and Economics
( posted at http://pdxnag.com/drupal/node/788 )
see also collection here
http://smf.pdxnag.com/index.php?topic=5.0

UPDATE as of 2 PM

EMail from Buckley

Ron--

I'm very sorry for your loss and for the torment the current health care system has caused for your family. Please know that Bates (who I know well), Westlund (who I've only worked with this year) and I all are trying every avenue we can find to break the health care cartel that exists and guarantee care for every Oregonian.

I look forward to hearing the response from the sponsors, and I will also ask the legislative counsel for advice on this.

Thanks & Onward,
PB

The response from the PR firm might be best illustrated by the modification of their web site and the addition of a PayPal payment option. I, of course, have a remedy for that too. Posted here:

http://smf.pdxnag.com/index.php?topic=5.msg10#msg10

Elements of a Demand to the Attorney General To Dissolve "NW GRASSROOTS AND COMMUNICATIONS, INC."

Below are some legal references followed by analysis. This should make clear that all the donations directed to "FOUNDATION FOR THE ADVANCEMENT OF COMMUNITY HEALTH CARE" should be returned to the individual donors. This should also make clear that there are grounds for the Attorney General to demand the dissolution of "NW GRASSROOTS AND COMMUNICATIONS, INC."

http://www.leg.state.or.us/ors/060.html
(for profit)
60.661 Grounds for judicial dissolution. The circuit courts may dissolve a corporation:
(1) In a proceeding by the Attorney General if it is established that:
(a) The corporation obtained its articles of incorporation through fraud; or
(b) The corporation has continued to exceed or abuse the authority conferred upon it by law.

http://www.leg.state.or.us/ors/065.html
(nonprofit)
65.647 Grounds for administrative dissolution. The Secretary of State may commence a proceeding under ORS 65.651 to administratively dissolve a corporation if:
(1) The corporation does not pay when due any fees imposed by this chapter;
(2) The corporation does not deliver its annual report to the Secretary of State when due;

(nonprofit)
65.661 Grounds for judicial dissolution. (1) The circuit courts may dissolve a corporation:

(a) In a proceeding by the Attorney General if it is established that:
(A) The corporation obtained its articles of incorporation through fraud;
(B) The corporation has exceeded or abused the authority conferred upon it by law;
(C) The corporation has fraudulently solicited money or has fraudulently used the money solicited;
(D) The corporation is a public benefit corporation and the corporate assets are being misapplied or wasted; or
(E) The corporation is a public benefit corporation and is no longer able to carry out its purposes;

If the "FOUNDATION FOR THE ADVANCEMENT OF COMMUNITY HEALTH CARE" were an actual nonprofit corporation they could not redirect donations to a for-profit entity other than for services rendered and for purposes consistent with the valid purposes of the non-profit.

Doug Riggs expressed plans for converting the for-profit entity to a non-profit. (As per email.) Yet, the donations that are obtained in advance of that transition would be donations to the for-profit corporation itself. Suppose all such donations are held in a special account, complete with the effective protections accorded to a classic escrow account, with the express goal of delivering the same to a newly formed non-profit at a future date. Are those funds attachable by creditors of the for-profit entity? Yes. Could the for-profit entity place conditions on the release of the money, specifically to force the prospective nonprofit to utilize the services of the for-profit entity that presently holds the money? Any such condition upon the prospective nonprofit entity would trigger considerations of conflict of interest and the like as noted (anecdotally) in ORS 65.357 (General standards for directors), ORS 65.361 (Director conflict of interest), ORS 65.364 (Loans to or guarantees for directors and officers), ORS 65.367 (Liability for unlawful distributions), and ORS 65.369 (Liability of qualified directors).

In any event it is not within the authorized corporate purpose of "NW GRASSROOTS AND COMMUNICATIONS, INC." to act as an escrow agent on behalf of an anticipated creation of a new non profit entity. To the extent that such for-profit entity acts effectively as an escrow agent, even where the funds are fully and safely isolated as with an escrow account for future delivery, would still offer sufficient grounds for the Attorney General to demand the dissolution of "NW GRASSROOTS AND COMMUNICATIONS, INC."

Then there are the tax complications. Did the funds really belong to the for-profit entity, as a distinct transfer from donors, and for which the for-profit itself would prospectively transfer to the future non-profit entity, but which they themselves could gain an allowable deduction that was not available to the original individual donors? Would the for-profit entity avoid this by not claiming such a deduction?; or would the voluntariness of such a prospective claim to a deduction itself require that the mere holding of the money be treated as if such a claim for a deduction should be implied, for purposes of considering the lawfulness of both soliciting and holding such funds? As you can see, this gets messy real fast.

The role of an entity that performs escrow functions can be quickly reviewed in the definitions section found at ORS 696.505. While this provision is specific to real estate transactions the principles are consistent with any escrow account that a court might create in a proceeding or for escrow services that a bank might offer for complex transactions. The common feature among them all could be reduced perhaps to the notion of a fiduciary duty, with a distinct beneficiary to whom the duty is directed. The mere prospective and planned creation of a non-profit to receive donations that are solicited and obtained today (by the for-profit entity), does not supply the necessary existence of a beneficiary to a trust or escrow account upon which to obtain standing to test the validity of any conduct by the trustee or escrow agent. It is simply impossible. Except for the whim of the for-profit, which here is really none other than Doug Riggs, and the other incorporators and directors. It is, by definition, thus an inherent conflict of interest.
http://www.leg.state.or.us/ors/696.html

Such funds, whether expended or not, would be reachable not only from the for-profit entity, but I would contend from the directors personally. I would content, additionally, that such funds were not obtained lawfully and thus must be returned to the donors, without reductions based on expenditures thus far. There might however be differential treatment between innocent donors that have been solicited and the knowledgeable folks who formed the for-profit PR firm and supplied the initial funding.

Kari -- I already took classes from the best that Oregon has to offer on civil liberties.

Overbroad is a buzz word. ( See State v. Robertson, 293 Or 402 (1983), which was cited in the opinions issued on the 29th. ) See also an application of overbreadth in the invalidation of the CoP ordinance regarding signature gathering in Pioneer Square.

Rest assured that I favor free speech, and the classic formulation that more speech is always the preferred remedy.

The ultimate non-profit is someone that does not claim any tax status other than as an individual. (Some personal web log authors fit in this category, but it gets tricky with advertising and multi-author web logs.)

Note the precise wording here:

"DONATE to the poor, the really poor, just do NOT claim any deduction on your taxes."

The implication is that if no tax breaks are offer to the donors for their contributions then likewise the restrictions that are listed in statutes for non-profits (or for-profits too), as a condition of that status, are all washed away. The donee just has to report unearned income (or earned if derived from advertising).

All forms of incorporation (for-profit and non-profit alike) are a conditional grant of a privilege. For a for-profit entity it is the privilege of limited liability and for a non-profit it is the tax break given to donors. Each incorporation filing contains a purpose section. One common mistake is to convert the mere existence of differential tax treatment among the various kinds of corporations into an inverted perception that the taxing power of government is the very authority that gives rise to the distinctions among the form of incorporation. Any rights that such corporations have, as contrasted with privileges, including free speech "rights," are viewed as a prism that links the rights of an individual to the conduct of the incorporated entity. This can made clearer by wrapping unincorporated associations into the mix, where there is no special tax status. This can be made all cloudy by wrapping Political Action Committees into the mix, with distinctions between issue and candidate elections, and where tax distinctions get just plain weird (arbitrary).

A non-profit (an unincorporated association with an identical purpose) that does not offer their donors a tax break can come out squarely for candidate x. Would it be absurd for the tax man to compel a nonprofit group to avail themselves of the privilege of tax breaks on donations, by formally incorporating and "voluntarily" accepting the restrictive terms as to speech, so as to thereby impose restrictions on such group-speech? Yes. Any free speech limits as to non-profits are thus voluntary, so as to receive tax deductible donations.

It is analytically impossible to look at a bunch of statutes and then glean from them some theory of free speech rights, rather it is the lawyers task to analyze case law pertaining to specific rights and then craft statutes, as need be upon demand of politicians, so as not to run afoul of such rights. Sometimes they get it wrong and we get a new case to throw into the mix.

The particular entity I was whining about is a for-profit PR firm. It was/is holding itself out as an "apparent" non-profit. I could alternatively demand that the corporate entity itself be dissolved for violating the purpose of the corporation as spelled out in their incorporation, which was an integral part of their original filing and determination of tax status and the privileges associated with such status.

Is Blogging Recreation?

That turns out to be an important legal question, at least in New York. Here's the text of N.Y. Labor Law 201-d:

1.... "Political activities" shall mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group ....

"Recreational activities" shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material ....
[ The Volokh Conspiracy - Is Blogging Recreation? ]

I would surely conclude that it is as political as if someone hoisted up a megaphone in the town square and belted out a diatribe about government or god or sex of aliens. I would surely conclude that it is as political as when a radio talk show host sends out a email to everyone on his contact list.

My comment on Eugene's site was as follows:

Are you using the term "blogging" in much the same way as when someone orders Coke? Any cola will do. Blogging is just slightly different than listserve and news group postings, and the like. The difference could be perceived as limited to having greater control over the storage of the data that gets viewed. The writer faces just one less hurdle to have it removed from the internet. That greater control though leaves a blogger, per se, more vulnerable to the compulsion to remove their blog (or to not blog at all). Blogging is slightly tamer (politics and profanity wise) than news groups too, which is one of their appeals, at least to me, and allows blogs to be more "recreational" than blood sport.

There had been earlier discussion of blogging in the context of a journalistic privilege to avoid being held in jail for refusing to reveal a source to prosecutors:

Status Overbreadth (a play on words for those who know its legal meaning)

What are the parameters of a journalistic privilege? That is the wrong question.

Jack notes "Blogs as a threat to freedom," expressing frustration at the passing of liberty to speak.

This is sort of my comment to a comment contained therein:

Jack . . . The freedom of the press applies to everyone, not just newspapers, radio stations and tv stations. . .

Jim Lindgren on Eugene's group site posted, in part on Dec 4, 2004, this:

Freedom of the press = Freedom to publish.--
I finally got around to reading Eugene's NY Times op-ed and the odd response to it by Terence Blacker in the Independent (see Eugene's post on this).

I am not an expert on the First Amendment (as Eugene is). But I found the Independent's argument unpersuasive and questionable in a way that suggests why people need to look beyond mainstream sources such as the Independent to figure out the merits and scope of any First Amendment prvilege.
Terence Blacker in the Independent:

It was unsurprising to read in The New York Times this week an article by a man with a successful weblog in which he argued that we are all journalists now, that privilege under the law should apply to the humblest blogger as it does to someone working for the national media.

Apply the same to any conduct (emailing, blogging, megaphoning, whatever) by any speaker that is tied to a Political Action Committee versus not tied to a Political Action Committee. I tell you it is an arbitrary distinction.

Are all speech costs deductible?

Victoria (at the AG's office), the very act of the filing of the charitable sounding assumed business name, to obtain charitable gifts, without regard to whether there is the utterance of tax deductibility, is the very evidence you need. The remedy at your disposal, not that of a DA, is the denial of the filing of the assumed business name, or the dissolution of the assumed business name that may have initially been accepted.

Here is the proposition: Someone runs a business under an assumed business name and solicits contributions to achieve charitable ends. They get the money from donors and then spend it to cover the costs for adds in The Oregonian or for a reservation of space at the Oregon Convention Center. Can they claim it is a business expense and thus look at their net profit or loss on their business? Or must they claim all donations as ordinary income and then separately find particular provisions of the tax code that specifically provide for individuals to claim exemptions to taxation for speech?

How would one distinguish between the two views above?: only the "net" from contributions minus expenditures versus that of anyone claiming deductions for any and all their speech regardless of whether they solicited donations or not. If the tax man would only look at the "net" above then likewise any person could just as easily deduct all allowable speech related costs that are considered deductible to arrive at a "net" above. (The Equal Privileges and Immunities clause would surely cover this one.)

Essentially, all speech related expenditures that would be allowable to arrive at a "net" (contributions minus expenditures) would thus be available to all people, from their own personal income or from contributions, regardless of the formation of an assumed business name. And by extension, one need not give money to a formal non-profit to obtain a deduction, for they can act as a non profit and obtain a deduction for their own expenditures for charitable purposes as they see fit. This expansive view of claims for deductions, however, would make a mockery of specific allowance of deductions from one's personal income only to bona fide non-profits.

The AG's office (via Victoria) apparently only looks to whether someone claims to offer deductibility for donors to bona fide charities. Someone can thus advertise themselves as any charitable organization that they see fit so long as they do not offer tax deductibility. The AG's office would then have to wait until they hear from the State Treasurer that someone collected a whole bunch of donations, under whatever scheme they had dreamed up, and then skipped town without paying their tax (as if that were to sole harm to be covered by the statutes pertaining to regulating charities). Call it aid for the victims of Katrina, or whatever, or aid for a Nigerian that has big bucks that they need help transporting out of the country. The AG claims to not have the jurisdiction to prosecute such activity.

I would instead think that the AG's office can address charitable schemes with even greater vigor than that of business scams; particularly when they are accompanied by a filing of a charitable sounding Assumed Business Name, which is inherently evidence in and of itself that is also sufficient in and of itself to at least deny the filing of the charitable sounding Assumed Business Name. The statutes provide specifically for denying the acceptance of a filing where the purpose of the filing is to achieve fraud. This authority to deny filing based on intent to commit fraud is clearly not within the jurisdiction of the local DA's; and thus is squarely and exclusively within the jurisdiction of the AG's office. Likewise, the potential to commit fraud is not confined to fraud via the utterance of tax deductibility when none is allowed but includes a broader role as to all claims to charitable purposes.

Ron Ledbury
Oregon Center for Poverty Law and Economics
(I don't need to obtain an assumed business name as it is inconsequential.)