Clackamas County board expands emergency authority
Clackamas County commissioners have extended their authority to intervene in emergencies when they decide another public official is falling short in carrying out duties.
The commissioners split 3-2 on a vote Aug. 11 to approve changes in the county code that will take effect immediately. Voting for the changes after an hourlong discussion and hearing were board Chair Tootie Smith, Commissioners Sonya Fischer and Martha Schrader. Voting against were Commissioners Paul Savas and Mark Shull.
The issue arose after faulty printed bar codes required county workers and others to hand duplicate thousands of mail-in ballots for the May 17 primary, although the 6,700 extra hours the workers put in enabled County Clerk Sherry Hall to certify election results by a deadline of June 13. But the actual vote count was delayed for weeks.
"If we had not intervened, these ballots would not have been counted on time," Schrader said.
The commissioners conducted an election review with Hall that ran more than 90 minutes on Aug. 10, the day before their vote on the code changes.
Under an ordinance that dates back to 2000, the board already has the authority to intervene in county operations when they declare emergencies, such as the onset of the coronavirus pandemic, the Labor Day wildfires in 2020 and the February 2021 ice storm. Oregon law defines emergencies — usually natural disasters, disease or civil disturbances.
What the expanded definition of emergency means in practice, "we haven't tested that yet," County Counsel Stephen Madkour said.
The new language, proposed in July, would allow board intervention when there is "willful or wanton neglect" by a public official, or actual wrongdoing, or a "failure to meet statutory or regulatory requirements." The board chair can initiate any action, but it has to be ratified by the board.
The language also says: "Nothing in this chapter is intended to divest any county official of their statutory duties."
It empowers the board to redirect not only funds, but also county staff, to cope with the stated emergency.
If any of the changes are challenged in court, and a judge concludes that one or more is unreasonable, the rest of the ordinance can stand.
Election was trigger
"This all stemmed from the election situation we had," Smith said. "You could argue that in order to ensure operations — that ballots were counted in a timely manner — the county administrator went in and offered 600 employees to ensure that timelines were met in accordance with what the secretary of state and the Oregon Revised Statutes say regarding the deadlines for elections."
Fischer said the changes do not affect the status of any elected official.
"I don't want to do anything that would give the impression that this language would do a power grab of any other elected official," she said.
But Shull said: "that would be a huge, huge power given to the board of commissioners."
Savas has called for a third-party review of what went wrong in the May 17 and pending Aug. 23 elections. But he said the code changes go too far.
"You can drive not just a truck, but a battleship, through this," he said. "We are widening the intent tremendously. This is where I struggle."
Shirley Morgan of Welches and Les Poole of Gladstone also testified in opposition, as did Sheriff Angela Brandenburg through a statement read aloud by chief deputy Jenna Morrison. Brandenburg was on vacation.
No other county elected official testified.
Clackamas County operates under general state law, unlike Multnomah and Washington counties, which have charters that define their forms of government. Voters in general-law counties elect the assessor, county clerk, sheriff and treasurer; in Multnomah and Washington counties, voters elect only the sheriff. (All of Oregon's 36 counties elect district attorneys, who are considered state officials, although counties pay for the operations of those offices with some state support.)
All elected officials are subject to recall elections, though new and returning officials cannot be recalled for the first six months of their new terms under state law.
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