November 17, 2005

John K. Hoover
Deputy District Attorney for Multnomah County
Multnomah County Courthouse
1021 S.W. Fourth Avenue, Room 600
Portland, OR 97204

RE: Public Records Petition 05-24 (Ledbury to Centennial School District)
( RE: Ledbury Demand For Info on Fair-Share Payments in the Absence of a Valid CBA )

Dear Mr. Hoover,

This letter addresses an apparent lack of clarity in my original petition. See your letter dated November 15, 2005.

I had asked for the number of persons whom the Centennial School District withholds fair share dues on behalf of the employee bargaining agent.

Oregon courts routinely accord public bodies with the presumption that their conduct is consistent with applicable state and federal laws. It is fully consistent with such presumption to assume that the District would demand that the bargaining agent would deliver a list that is noted in the collective bargaining contract. Though such contract has expired, its' terms, such as rates of pay, remain integral to determinations of lawfulness of conduct during negotiations over a replacement contract, if one ever materializes.

I assumed that the bargaining agent would have submitted the list as identified in the collective bargaining agreement. I also expected that you might fill in the gap, if need be, by informing the school district that acts of omission or misfeasance are just as amenable to review as are affirmative acts. A recent example might be the Benton County decision not to issue any marriage licenses, which prompted a judicial characterization of such refusal to perform a duty as similar to anarchy.

The selected provisions of labor laws that were supplied in the original demand and petition were to note that the school district has a duty; and to point out that statutory duty.

I am not prepared to assume that the failure of the bargaining agent to deliver a list as noted in the CBA is the equivalent of the assertion by the bargaining agent that every single employee in the contractually described bargaining unit is also a member of the union. The school district's apparent satisfaction that no employees have complained is not sufficient to dispense with the CBA agreement for the delivery of a list. If the list has zero elements, then it appears that it is the collective bargaining agent that needs to make an affirmative claim of zero non-members among the bargaining unit. It would be unreasonable to assume 100 percent membership merely from the failure to deliver a list.

Given that the school district and bargaining agent together failed to act upon the CBA provision I am left in the wild position of facing anarchy.

I could have asked the school district instead to reveal whether their payroll department deducts dues for all persons in the covered bargaining unit and delivers the same to the bargaining agent. I assume that the school district continues to make such deductions for all members. If they make no such deductions at all then, a fortiori, there could be no subset of deductions that correspond to fair share deductions that are being unlawfully obtained from some employees that are not voluntary members of the bargaining agent.

Your letter, dated November 15, 2005, asserts that "[t]his office has no jurisdiction to act on this request." I find this truly puzzling. Does this merely mean that I did not initially draft my request sufficiently clearly? Notwithstanding any error in clarity (resulting perhaps from rapid drafting and editing) could not possibly have left any doubt in your mind, or that of the school district, of the import and intent of my request.

I have attached an appendix that notes a series of statutory provisions that impose a duty upon the district attorney over matters notwithstanding the existence of a set of laws that allow for bargaining collectively. The coercion statute, referenced directly by the racketeering statute, specifically notes "strike, boycott or other collective action[.]" ORS 163.275(1)(e); ORS 166.715 to 166.735. The coercion statute applies expressly to instances where a public servant "fail[s] or refus[es] to perform an official duty[.]" ORS 163.275(1)(g).

It is clear that you have jurisdiction over the subject matter. It is clear that your role regarding the public records law, and my request, is hampered by the apparent obliviousness of Mr. Rick Larson. Your apparent assertion that it is satisfactory for Mr. Larson can avoid scrutiny by the DA's office by way of an admission against his interest, that he has failed to act according to his official duties, so as to deny me the aid of your office is itself bizarre. The statutory standard, or element of a crime, is not whether no employee has complained. The existence of good faith belief as to the lawfulness of Mr. Larson's choice to refuse to act to obtain the list from the bargaining agent, or alternatively to halt deductions of all dues from the bargaining unit members pending the signing of a replacement CBA, is not a dilemma that excuses the failure to comply with my public records request.

I am familiar with issues as noted in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), regarding anonymity, such that I am not asking either the district nor the union, indirectly via the district, for a list of the members and nonmembers. I would likewise not want to reveal any members I may have either, as they would have even more to risk and have greater vulnerability than members of the currently recognized bargaining agent(s).

The range of issues that Mr. Larson might face regarding his choice of action in dealing with the presently recognized bargaining agent are partially discussed in the December 8, 2004, decision of the Employment Relations Board in AFSCME Local 2936 v. Coos County (Case No. UP-72-03 http://www.oregon.gov/ERB/recos/UP7203.shtml). Such choice is not mine to make but neither does the school district’s indecision offer an excuse regarding my simple public records request. Surely, a public employer and a collective bargaining agent would not conspire, particularly within a CBA, to thwart the public records law. It is absurd to believe that I would of necessity have to fight either the bargaining agent's battle or the school district's battle just to obtain transparency for purposes of a factually simple public records request.

If the District chooses to halt all dues deductions, as a consequence of the failure of the bargaining agent to deliver a list, then the answer to my question would be zero (0). If the bargaining agent, on behalf of non-members and members alike, requests the termination of the dues deduction and delivery process then the answer to my question would again be zero (0). The answer offered by the school district was not zero (0). Did the school district misunderstand my question to such a degree that they did not know that the mere answer of zero (0) would fully comply with my public records request? After all, I merely assumed that the District was making deductions, I could have alternatively made the presumption, as a court would, that the school district was complying with statutes and otherwise acting lawfully and that the answer would of course be zero (0). But it is not; via the one and only obvious deduction from the response.

It would be odd indeed if I had to argue in court that the DA's refusal to aid me was based on a claim of the lack of jurisdiction over my public records request. The school board is an elected body and could have voted to deny my request, if indeed it was their intent to deny you of authority to act. They did not take such a vote. Such would have been much simpler from their perspective. Perhaps you could inform me of any continuing uncertainty over my request for the number of teachers from whom the school district is collecting "fair share" dues for delivery to the bargaining agent. I did use the phrase "fair share" in my original request and believed that you would understand the phrase. I would suggest that you read the ERB case noted above, but only for the purpose of learning the meaning of "fair share." Both sides in that case took preposterous positions, as if they were spoiling for a fight.

I believe it would be contrary to the administration of justice not to exhaust this public records mechanism for obtaining the information requested rather than to jump to either a court action or to the Employment Relations Board for resolution. If would also be useful to identify the parameters of the jurisdiction that the DA perceives it has relative to the Employment Relations Board on matters of official misconduct. It is best that they (the ERB of a judge) have such abdication of duty in the words of the DA's office to rely upon. The matter has application, in other contexts, as you must know, to the inclusion of retroactive pay increases (or reductions) by entities such as the Gresham-Barlow School District and for which the Multnomah County Tax Supervising and Conservation Commission and the DA have a duty examine. It would be a farce for such matters to be delegated to the ERB by virtue of the DA's abdication of responsibility. The Oregon State Bar's rules include a demand upon attorneys not to turn away representation of the oppressed, perhaps even here as to merely the rights to free association; and which are even more applicable where the DA is supposed to advocate on behalf of weaker parties against politically established parties. This flowery presentation, in this paragraph, is fluff but gets to the heart of why I would believe that challenging the scope of power and duty of the DA's office might offer a greater public interest enhancement than going through the ERB on the matter at hand for a myopic incremental resolution. I can usually babble my way out of fight, when possible.

It is not your role to sit in the shoes of an attorney for a public servant that is arguing defensively that their unlawful conduct was engaged in in good faith and thus not criminal but rather to be in the shoes of the prosecutor of unlawful conduct. Let them get outside counsel, if they so choose. Here, let the labor law educator from Lewis and Clark Law School, who represents the Centennial school district in the current labor negotiations, go on record as to the validity of the demand that I make or to redirect such an inquiry to someone else. Surely she would not advocate unlawful conduct . . . would she? She certainly could not settle or negotiate a dispute with the school district's bargaining agent so as to deny me the statutory and constitutional rights that I possess, arguably on my behalf and arguably in the public interest.

Again, how many Centennial teachers have fair share dues deducted from their pay for delivery to the bargaining agent in the absence of a contract and in the absence of individual expressions of consent? (At the risk of overload, the phrase "individual expression" is implied in the notion of fair share and contrasts the individual right with the interests of a bargaining agent.) The statutes are clear and so too is your duty. The title of my original request, for which my petition references and pertains, unequivocally is not so confined as your selected quotation from my appeal for aid. Had my petition merely asked you to demand compliance with my original request, there would have been no occasion to go on a super selective and ultimately ineffective hunt for any minor detail so as to appear to reject my petition on rational grounds.

Respectfully,

[pdxnag]
ronled@pdxape.us

cc. Rick Larson, Director of Business Operations, Centennial School District
18135 SE Brooklyn Street, Portland, OR 97236

Appendix

ORS 166.715 Definitions for ORS 166.715 to 166.735. As used in ORS 166.715 to 166.735, unless the context requires otherwise:
[ . . . ]
(3) “Investigative agency” means the Department of Justice or any district attorney.
[. . .]
(6) “Racketeering activity” includes conduct of a person committed both before and after the person attains the age of 18 years, and means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce or intimidate another person to commit:
(a) Any conduct that constitutes a crime, as defined in ORS 161.515, under any of the following provisions of the Oregon Revised Statutes:
[ . . . ]
(D) ORS 162.405 to 162.425, relating to abuse of public office;
[ . . . ]
(I) ORS 163.275, relating to coercion;
[ . . . ]

ORS 162.405 Official misconduct in the second degree. (1) A public servant commits the crime of official misconduct in the second degree if the person knowingly violates any statute relating to the office of the person.
(2) Official misconduct in the second degree is a Class C misdemeanor. [1971 c.743 §214]

ORS 162.425 Misuse of confidential information. (1) A public servant commits the crime of misuse of confidential information if in contemplation of official action by the public servant or by a governmental unit with which the public servant is associated, or in reliance on information to which the public servant has access in an official capacity and which has not been made public, the public servant acquires or aids another in acquiring a pecuniary interest in any property, transaction or enterprise which may be affected by such information or official action.
(2) Misuse of confidential information is a Class B misdemeanor. [1971 c.743 §216]

ORS 163.275 Coercion. (1) A person commits the crime of coercion when the person compels or induces another person to engage in conduct from which the other person has a legal right to abstain, or to abstain from engaging in conduct in which the other person has a legal right to engage, by means of instilling in the other person a fear that, if the other person refrains from the conduct compelled or induced or engages in conduct contrary to the compulsion or inducement, the actor or another will:
(a) Unlawfully cause physical injury to some person; or
(b) Unlawfully cause damage to property; or
(c) Engage in conduct constituting a crime; or
(d) Falsely accuse some person of a crime or cause criminal charges to be instituted against the person; or
(e) Cause or continue a strike, boycott or other collective action injurious to some person’s business, except that such a threat shall not be deemed coercive when the act or omission compelled is for the benefit of the group in whose interest the actor purports to act; or
(f) Testify falsely or provide false information or withhold testimony or information with respect to another’s legal claim or defense; or
(g) Unlawfully use or abuse the person’s position as a public servant by performing some act within or related to official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely.
(2) Coercion is a Class C felony. [1971 c.743 §102; 1983 c.546 §4; 1985 c.338 §1]