Franell Memo IRV and Salaries

DATE:                       April 21, 2005
TO:                  Charter Review Committee
FROM:            Michael W. Franell, City Attorney
RE:                  Compensation Question and IRV Question
You have requested a legal analysis of two questions for you meeting tonight.
Councilor Compensation
The First Question concerns the compensation for Council under the Charter. The Ashland Charter of 1970, as amended May 23, 1978 provides in relevant part in Article 3, Section 3:
“Section 3. Salaries Any change in the amount of the present compensation received by elective officers, except for the Recorder and Municipal Judge, shall be submitted to the vote of the people; . . .”
You want to know whether benefits provided to Council members included in compensation, requiring submission to the voters for any change. The current compensation levels were established by an amendment to the charter in 1954 and were found in Article VI, Section 2. The relevant sections read:
"The City council shall, by ordinance, prescribe the duties of appointive and elective officers; and fix and determine their compensation and essential of qualifications (sic), and may, in its discretion, subject to the conditions heretofore stated in Section 1 of this article, remove any appointive officer at any time.
"Each councilman shall receive as compensation for his or her services a salary not exceeding $350.00 per year, unless for extraordinary services required of them. The Mayor shall receive a salary not exceeding $500.00 per year unless for extraordinary services required of him for which he may be allowed such compensation as may be determined by the Council."
In that instance, compensation was established as salary. The current Charter has a section title “Salaries” before it indicates changes in compensation must be submitted to voters. Based upon this, the interpretation that has been made is the limitation of required voter approval has only been applied to actual salary given to Councilors. Benefits for Councilors have not been interpreted as being subject to the required voter approval limitation. The practice of paying for the health insurance benefits for Councilors was adopted when Ashland joined the City County Insurance Services group in the 1960s. That decision was not submitted to the voters and has not been challenged even though there have been at least two amendments to the Charter since then, one of which adopted the specific language we have in our current charter.
Instant Runoff Voting
You have had several citizens indicate an interest in instant runoff voting (IRV). There has been some indication that IRV may be precluded under current state statute. You have requested an opinion as to whether or not Ashland could put a provision in its charter that would allow instant runoff voting.
The current process set forth in Article 7 of the Ashland Charter of 1970, provides in Section 1, all regular elections shall be held “at the same times and places as biennial general State elections, in accordance with applicable State election laws.”
Current state statute (ORS 254.065) provides that the person receiving the highest number of votes shall be elected to office. This allows for election through only a plurality of votes.
The initial question that needs to be decided is whether the City wants to have a majority vote requirement, rather than a plurality of votes for winning an election. Without a majority vote requirement, there is no need for a run-off, and therefore no need for an “instant run-off” system.
The Oregon Constitution expressly recognizes the option of preference voting in Article II, Section 16: “Provision may be made by law for the voter’s direct or indirect expression of his first, second or additional choices among the candidates for any office.”
In 1913, the Oregon Supreme Court held that a city could adopt preference voting by charter. State ex rel v. Portland, 65 Or 273 (1913).
In 2001, the state’s Director of the Elections Division (Secretary of State) issued a letter to the legal counsel for the City of Eugene, which, took the position that preference voting (including IRV) is no longer an option for cities, regardless of Charter language that allows such voting systems. The letter reasons that since state statutes generally contemplate uniform election laws, allowing a city to establish a separate voting system would conflict with state law. The letter cites a 1988 Oregon Supreme Court case that held that a City could not require the county elections officials to place an “advisory” measure on the elections ballot. City of Eugene v. Roberts, 305 Or 641 (1988). The Court declined the city’s request to force the county to include an advisory measure on the ballot because a city’s home rule authority does not “empower city governments to conscript the services of county and state officials in the conduct of city business.” The letter then concludes that the preference voting question would have the same outcome.
However, I disagree with the conclusion of this letter. I believe that the City’s Charter may allow for IRV under home rule authority, but that such as system likely would be required to be developed and administered by the City, and not the County. Currently, Jackson County has no system in place for IRV. Therefore, the costs associated with developing an IRV system would likely be borne by the City. If the City were to provide a system for IRV voting, the county would not be “conscripted” by the City. The Oregon Supreme Court, in dicta, stated that a legitimate home rule question might have been presented in the Roberts case “had the city sought to conduct its own election on the proposed question [the advisory measure] and the defendants, under the authority of ORS 246.200, sought to prevent the city from doing so.” City of Eugene v. Roberts, 305 Or at 651 (1988) (emphasis added). In other words, by administering an IRV election by itself, without the aid of the county, the City may be able to legitimately implement IRV.
In conclusion, the Oregon Constitution allows city charters to allow for preference voting. Although cities may not require a county elections official to place certain items on a ballot that conflict with state elections law, a home rule city may have the authority to conduct its own IRV election. Case law implies that a city’s home rule charter may allow for a city to administer its own IRV election.  

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