Amid rule dispute, activist mulls court action to force resignation; Smith says double standard.

TRIBUNE FILE PHOTO - Multnomah Commissioner Loretta Smith could face a legal action seeking to force her to resign restroacttive to last September, based on athe county charter. She says she did nothing wrong.

Updated with comment from Smith's chief of staff with her recollection of additional advice from county counsel regarding how the charter should be interpreted.

State elections officials found that she violated campaign law on two occasions, fining her $250 in November and again in December.

Now, Multnomah County Commissioner Loretta Smith faces new challenges that could threaten her $103,000 county salary and impede her bid for the Portland City Council.

Driving the debate is a 36-year-old provision of the county charter that says "no elected official of Multnomah County may run for another elective office in midterm without resigning first," until they enter their final year of office.

Intended to keep sitting commissioners focused on county business, the rule came about in 1982 after Earl Blumenauer sought election to the Portland City Council less than two years after joining the county board. Voters have rejected several attempts to eliminate it, most recently in 2010.

Seth Woolley, the Portland election-reform activist whose complaint sparked the Dec. 21 fine against Smith, says she has violated the charter by running and raising money to replace departing city Commissioner Dan Saltzman since September.

"It's really clear," Woolley said. "You need to resign."

Now the longtime political activist says he is considering legal action to enforce the charter and immediately force Smith from office. Otherwise, her term expires at the end of 2018.

Smith, however, says she's following the county's legal advice, which does not explicitly define what constitutes running for office midterm. In a Dec. 22 interview with the Portland Tribune, she said she's being held to a different standard than a white former county commissioner, Jules Bailey. He declared his intent to run for Portland mayor in late November 2015, five weeks before his final year in office began.

"I'm an African-American woman," Smith said of the difference. "The charter says that the only way that I have to step down is if I actually physically file. ... I don't know why we're even still talking about it."

She was echoed by her chief of staff, Elizabeth Mazzara Myers, who said "the bottom line is {the controversy} feels targeted."

Bailey, on Twitter, sided with Smith on Dec. 29.

"The charter is clear that the trigger is 'filing.' Wasn't an issue when I ran but people are attacking (Smith) now," he wrote. "Double standard? The race should be about issues."

Three independent election lawyers asked to review the issue for the Portland Tribune do not agree with Smith and Bailey's reading of the charter. They said Woolley's chances in court against Smith range from decent to very good.COMMISSIONER LORETTA SMITH FACEBOOK PAGE - Multnomah Commissioner Loretta Smith posted her council campaign logo

One of them, Jeff Condit of Miller Nash, said the language in the county charter is ambiguous and poorly written. But Smith's actions since Sept. 12 — using a campaign consultant to put out a news release about her city run, retaining a political consultant for her campaign, publicizing her new "Loretta Smith for Portland City Council" campaign logo, and registering the website, while raising large contributions — could be enough in a judge's eyes to say she should have resigned her job in the fall.

Told of her activities to date, Condit said "It sounds suspiciously like she essentially is running for election without filing ... It's an interesting case."

Jill Gibson, another Portland elections lawyer, said that a legal action to force Smith's resignation "is likely to be successful. … State laws look more at the substance of activities versus labels, so a person can't solicit contributions, accept contributions, make expenditures, and then say, 'I'm not running for office.'"

Support to clarify rule

Late last week, all four of Smith's fellow members on the county board said publicly that the charter needs to be clarified, while refraining from directly criticizing her.

For the board to tackle the issue could highlight Woolley's complaint against Smith as the race to succeed Saltzman heats up.

County Commissioner Jessica Vega Pederson said the board needs to "take up this matter to ensure that we're upholding the spirit of the law and preventing these issues from arising again."

Commissioner Sharon Meieran, in an email, said that "I am concerned about this issue, and absolutely agree with the spirit and intent of the Multnomah County Charter provision."

Commissioner Lori Stegmann said that "if I choose to run for another office in my final term, I will not declare, fundraise or file earlier than the last year of that term."

Chair Deborah Kafoury, whose clashes with Smith drew media attention in December when she called Smith a nasty name at a public meeting, stepped down as commissioner to run for the chair's seat in 2010.

"When I decided to run for county chair there was no question in my mind that our county charter required me to resign my commission seat, and I did," Kafoury said.

She was the fifth county board member to resign in mid-term to run for another job since the rule was adopted — including, in 1982, then—county Commissioner Dan Saltzman.

Smith and her allies point to a Nov. 3 email from County Attorney Jenny Madkour, sent six weeks after Smith's news release about her intent to run for City Council.

Madkour's email echoed the charter, noting that filing for another office midterm would constitute resignation from Smith's county job. But the attorney also indirectly drew attention to the gray area in the charter about what level of campaigning would violate the charter's prohibition on running midterm, saying that the rule does not "specify other actions that would be the same as a resignation."

Madkour urged Smith to retain her own lawyer to "discuss the impacts of the county code and charter on your personal or campaign related matters."

It's unclear if Smith took the step of retaining a lawyer to advise her campaign.

Smith, in a statement relayed last week by her campaign consultant, Jake Weigler, characterized the county attorney's advice as what the commissioner relied on.

"Under the County Charter, you become a candidate once you file for office and I have not done so," she said. "We confirmed this with the County Attorney, just as former Commissioner Jules Bailey was advised when he ran for mayor. I encourage individuals wanting to amend these rules to participate in the next Charter Review Commission."

Mazzara Myers, Smith's chief of staff, said the aide spoke directly to Madkour in September about the charter provision. The message, Mazzara Myers said, was that only formally filing for another office midterm would trigger the need to resign.

Madkour "made it clear to me that the physical act of filing was the only trigger for becoming a candidate," Mazzara Myers said. "There was no gray area in my mind: you file, you're a candidate. Any other activities that are not filing, you're not a candidate."

Past reform clash

Smith's past statements have complicated her situation and put her on the radar of Portland's campaign finance activists.

On June 28, 2016, Smith testified against an "honest elections" county proposal to revise the charter to limit campaign contributions in county races. She said county-only contribution caps would have a discriminatory impact on the women and people of color who have a better chance of getting elected in Multnomah County — making it harder for them to cultivate large campaign donors to run for their next office.

She seemed aware of the charter's ban on running for other offices midterm, saying, "we should not have to worry about quitting our position midterm (to run for other offices) as the charter suggests."

In November 2016, voters overwhelmingly approved county contribution limits, with 89 percent in favor.

This fall, the campaign finance activists that she'd opposed noticed Smith raising contributions over the new county limit, leading to articles in Willamette Week and the Portland Mercury, and eventually to Woolley's complaint.

Woolley, the 2012 Pacific Green Party nominee for Oregon secretary of state, had filed an election complaint that year against mayoral candidate Charlie Hales, accusing him of lacking Portland residency. He later joined the "honest elections" group that pushed the county's charter reform measure, and is pushing similar reform at the city level.

Now, aside from court action to enforce the charter against Smith, Woolley intends to press what he contends are several other election-law violations by her.

He's also considering a retroactive complaint against Bailey, as well as separate complaints against other officials that haven't changed their campaign committee designation to reflect their current run. That's the issue that got Smith fined last month, highlighting the the charter issue.

"My plan is, basically, to file on all of them," Woolley said.

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